In a bizarre judicial move that has largely slipped under the radar screen in the United States, England’s Central Criminal Court, known as the Old Bailey, several weeks ago banned Jews and Hindus (and anyone married to one) from serving on the jury in a trial of Abdullah el-Faisal. The Muslim cleric had been running around England writing, recording, and speaking about his hatred of Americans, Jews, and Hindus, and waxing poetic about Osama bin Laden. He was tried and convicted of soliciting the murder of nonbelievers (read: Americans, Jews, and Hindus) and using threatening words to stir up racial hatred.
It may be difficult for Americans to appreciate just how unusual this act of juror cherry picking was in England, steeped as we are in the high drama that jury selection has become in the United States. But it is worth bearing in mind that in England there is no such thing as jury selection. Jurors are pulled from the pool at random, lottery-style. Defense attorneys in England used to have the right of peremptory challenge — that is, to knock someone off a jury panel for no stated reason. But that right was done away with in 1989. Peremptory challenges by the prosecution, while technically still permitted, are quite rare. Even challenges for cause are seldom heard in English courts. Asked about the court’s action, noted barrister and British legal commentator Fenton Bresler told me, “It is a retrogressive step by the judge and mercifully rare. It is against the whole ethos of random selection of jurors.”
At the behest of the defense, the court took steps that the defense itself was unable to take to eliminate from the jury panel those whom he feared — without a wit of evidence — might not be impartial. The judge reportedly announced, “For obvious reasons, members of the jury of the Jewish or Hindu faith should reveal themselves, even if they are married to Jewish or Hindu women, because they are not fit to arbitrate in this case.” According to the Central News Office of the Old Bailey, no one got up to leave and the panel was sworn in. This leaves open the possibility that a banned (but rebellious) individual secretly served on the jury in defiance of the court’s order — and on pain of being held in contempt of court. It does not bode well that we are returning to a time when Jews and others must choose between public humiliation or hiding their identity.
The court simply assumed that Jews and Hindus and those who live in close proximity to them (no matter how long their families have been British citizens) could not serve impartially at el-Faisal’s trial given its incendiary nature. The court left this task to the real Englishmen who presumably could ferret out the truth with a stiff upper lip to prevent them from wallowing in emotionalism. But it is hard to see what basis in truth the court may have had, given the extremity of el-Faisal’s rantings. Indeed, the prosecutor, David Perry, felt compelled to warn the jury that the defendant is not merely a crank and should be taken seriously. Apparently, his warning was heeded: The Jew- and Hindu-free jury deliberated for a week and convicted el-Faisal, who was sentenced on March 7 to nine years in prison.
Thankfully, this weeding out of Jews and Hindus appears to be an isolated incident. But it is still disturbing because thus far it has caused barely a ripple among England’s chattering classes. This may be due to court rules that constrain journalists in England from editorializing about ongoing trials, but it remains to be seen whether they will pick up the thread of this issue now that the jury has rendered its verdict. Indeed, only one of the many press reports on el-Faisal’s sentencing even mentioned the unprecedented juror exclusion maneuver. Somehow, one doubts a firestorm is about to burst loose on this topic, though it is deserving of one. Heaven knows, had this occurred in the United States, the ACLU (God bless them — there are times when they come in handy) would have stormed the courthouse. Yet, with the exception of an op-ed by Harvey A. Silverglate in the Wall Street Journal on February 14, the court’s action has received scant attention even in the United States. The New York Times devoted a one-paragraph article to the el-Faisal trial on January 23. Although the article was written after the commencement of the trial — two days after the court declared Hindu and Jewish jurors to be verboten and subsequent to British press reports about the incident — it failed to mention this little tidbit (as did their one-paragraph follow-up story on el-Faisal’s conviction).
With the impending war with Iraq and a resurgence of European nationalistic squabbling reminiscent of the era before World War II, it is chilling to see an institution such as the British judicial system, which has long held such high moral ground, classify and rank its citizenry with labels such as “Jew” or “Hindu.” The court’s action, no matter how well intended, evokes creepy memories of Europe in the 1930′s, when such labels — sometimes stamped on official documents — often meant the difference between life and death. Even if this odd episode at the Old Bailey doesn’t cause a firestorm, one hopes there will at least be a small flurry of righteous indignation among England’s Jews and Hindus and others of good conscience, now that the trial is over. Silence, as we have learned from history, has an uncanny way of breeding still more racial and religious classifications. The Old Bailey should be setting a better example for Europe at this tumultuous time.
— Carla T. Main edits the opinion page of The National Law Journal.