A federal judge in New York this week denied a defense attorney’s request to exclude Jews from a jury that will hear the case of alleged terrorist Abdel Hameed Shehadeh, on trial for lying to the FBI about plans to kill Americans. Shehadeh’s lawyer, Frederick Cohn, told the judge that the jury was going to hear incendiary testimony about Jews and Zionism and that Jewish jurors could not be trusted to remain objective.

Many reports of this week’s ruling state that the law forbids excluding jurors on account of religion. Those statements are a bit misleading. The Supreme Court has held that the constitution forbids attorneys from striking jurors on account of race or sex, but has never ruled on whether attorneys may strike jurors on account of religion.

According to my colleague Larry Cunningham, an expert in criminal procedure, lower courts are split on that question. There’s learning for the proposition that attorneys may not strike jurors on the basis of religious affiliation itself, but may strike jurors on the basis of religious intensity. For example, in one federal trial in New Jersey, a prosecutor struck two jurors who were active in their churches on the ground that the jurors’ religious convictions would make it hard for them to vote to convict the defendant. An appellate court ruled that the exclusion was proper.¬†As Robert Miller quipped at the time, “You may thus be struck from a jury not for being a Christian, a Jew, or a Muslim, but only for being a rather devout Christian, Jew, or Muslim.”

So, Shehadeh’s lawyer really should have been more subtle. Perhaps he will revise revise his request to cover only Jews who keep kosher.

2 thoughts on “Jews on the Jury

  1. Mark, I know you’re just quipping, but I think it’s not universally believed [pun] that keeping kosher equates with being “more” Jewish–many self-identifying Jews think it does, and at least some do not. Ditto Mass-attending, birth control forgoing, etc. and Catholicism, etc. etc. Perhaps this is, to go back to your Bellah-invoking post of a few weeks ago, “Sheila-ism,” but I think she was/is onto something, and that our law agrees, about what “religion” means. And, circling back to the juror issue, this “Jews” or “only some Jews” issue seems to show a randomness/arbitrariness problem with Batson doctrine and how judges strike prospective jurors for cause and let attorneys use their peremptory challenges.

  2. Mark, nice post.. One of the interesting things about this case is that it was a “reverse Batson” challenge. The original Batson case was about prosecutors using peremptory strikes in a racially discriminatory manner. The Supreme Court later held in McCollum that the doctrine extends to defense peremptories as well, the theory being that the improper peremptory strike violates the venireperson’s right to serve on a jury. The government, in effect, has third party standing to vindicate the prospective juror’s right to service. The other interesting issue here is that the result probably would have been different if the trial had been in state court. At least one New York trial court has recognized religion as an improper reason for the exercise of peremptory challenges. That court did so as a matter of state constitutional law. As lawyers, we sometimes forget about our state constitutions. At least in New York, anyway, the state constitution often goes further than its federal counterpart.

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