The Corner

Re: Motion to Exclude Jews from Jury in Case About Islamic Supremacist Terror

Nathaniel, as Fred Cohn well knows, that motion is a loser. It’s been raised and rejected with numbing regularity in terrorism cases.

The issue in jury selection in any case is whether the juror can be fair and impartial, whether he or she is committed to deciding the case based solely on the evidence and the court’s instructions on the law — without fear or favor. There are very few interpersonal relationships, and no ethnic or racial categories, in which we conclusively presume bias. A reasonably close familial tie would do it — e.g., you shouldn’t sit on a case where, say, your first cousin is accused of a crime. But even being acquainted with the accused is not an automatic basis for exclusion — if it were, you’d have a hard time getting a jury in a small town. 

There is nothing offensive about being offended by offensive behavior. If a juror is moved to convict someone because the criminal conduct involved and the hatred that motivates it are horrific, that is what is supposed to happen — that is a conviction based on the evidence, not on a bias against the defendant. If jurors could be removed for cause just because a defendant expressed nasty views about categories of people, a defendant could theoretically render himself un-triable by making nasty statements about a wide range of categories. Women would never be permitted to sit as jurors on rape cases, black Americans would be excluded in trials of white supremacists, and so on.

The motion is what is offensive. In my many years of trying criminal cases, I was always impressed by how honest prospective jurors tended to be regarding their own biases — they will tell you if they can’t be fair and can’t decide the case based solely on the evidence, effectively removing themselves for cause. I always thought it was interesting that, in my case anyway, these disqualification motions — which were directed not only at prospective jurors but at our judge, who was Jewish — were made by defense lawyers who happened to be Jewish. There is, of course, no more reason to conclude that a Jewish judge or juror could not sit fairly on a case involving Jew-hating terrorists than there is to presume that a Jewish lawyer should be excluded from representing a Jew-hating defendant because the attorney-client relationship might be compromised to a degree that frustrates the constitutional right to counsel.

In any event, the motion will be denied, and, if the defendant is convicted, the matter won’t even be raised on appeal because it is frivolous.

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