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 St. John’s 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 in First Things 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.