Exclusion

I once served on a jury decades ago when I lived in New York City. I was working at the time and hadn’t yet entered rabbinical school. During jury selection I was given a questionnaire which asked whether I was willing to vote for conviction on the basis of only one witness. The reason for this question was that the Bible decrees that no one may be convicted of a crime based only on one person’s testimony.

The question gave me pause because I knew that Jewish law, based on Deuteronomy 19:15, rules that a conviction for a crime requires two eyewitnesses. Would I be able to serve on the jury given my religious beliefs? While some might have taken the opportunity to get out of jury duty, I was interested in serving. My job was fine, but it was relatively low level. Missing a few days of work wasn’t going to be a problem for me, especially because I knew it wasn’t going to be my career. I was already planning to enter rabbinical school in a few months.

My reasoning in responding “yes” to the question of whether I would convict on the basis of one witness was the fact that as an American Jew, my responsibilities differed depending on the context. If I were to serve on a beit din, a Jewish court, I would need to follow the Jewish rules of procedure but serving in American court meant agreeing to New York State’s system.

In the end, our jury convicted the defendant of drug possession. If I recall correctly, there was more than one witness who testified at the trial. I remember feeling the verdict in the pit of my stomach as we the jury rose to give our decision. I was confident that the man was guilty, but still we had just determined that his life’s future would almost certainly entail imprisonment. Who knows what consequences this would have for him.

After we had reached our decision, the judge assuaged my conscience when he told us that the defendant was certainly guilty, and we had made the right decision, even without the evidence he was aware of but that had been kept from us for legal reasons.

I recalled my experience from years ago after reading that death row cases in California are being reviewed because prosecutors kept Jews off juries solely because of their religion. These prosecutors felt that Jews opposed the death penalty and so they would vote against the state in these cases. This anti-Jewish bias has been long assumed, but proof was finally provided when investigators looked through notes from an old case. The prosecutor, during jury selection, wrote things like “I liked him better than any other Jew but no way” and “Banker. Jew?”

Striking a juror based on their race or religion is unconstitutional so lawyers use other means to exclude those they think will vote the “wrong” way, but here was conclusive evidence that the prosecution wanted to keep Jews off a death penalty case.

Jewish law, based again on the Bible, allows for the death penalty, but the Mishnah states: “A Sanhedrin (court) that executes once in seven years, is called murderous.” (Makkot 1:10) Throughout history, Jews have been leery of trusting non-Jewish courts, which were often used as a means of persecuting the community. Jews do not automatically see the criminal justice system as fair or equitable.

Would these potential Jewish jurors have let their personal or religious beliefs affect their decisions? Maybe. Especially if they saw a system that disproportionally imprisons and executes people of color. Unfortunately, the illegal actions of the prosecutors have now led to the reopening of cases and potential retrials, which will subject victims families to more trauma.

As one California rabbi noted about the exclusion of Jews from juries, “It’s pretty awful. The word disappointing isn’t enough.” With all of the antisemitism we have been experiencing, this news is just another blow, but perhaps the discovery of the prosecutor’s notes may lead to change. Now that the exclusion of Jews from death penalty juries has been confirmed, the process can be eliminated as one step in creating a criminal justice system that is truly just.