As two pro-Israel lobbyists near trial on charges of trafficking in classified information, a federal judge is preparing to grapple with some thorny questions, such as what to ask potential jurors about their religion and whether it is legal to knock jurors off the case based on their perceived religious affiliations.
At a hearing last month, Judge Thomas Ellis III asked lawyers for the defense and the prosecution to submit legal briefs on whether it would be proper for either side to remove jurors with "obvious" Jewish or Arab names.
"In other words, can the government strike someone just because his name ends in stein, or whatever, or can the defense strike somebody because his name is Mohammed?" Judge Ellis asked. He said there is no clear federal legal precedent on the point in the 4th Circuit, which includes his Alexandria, Va.-based court.
The defendants, Steven Rosen and Keith Weissman, are former employees of the American Israel Public Affairs Committee. The pair, who have pleaded not guilty, are charged with relaying classified information to journalists and foreign diplomats, including Israeli officials.
The Supreme Court ruled in a 1986 case, Batson v. Kentucky, that the Constitution bars prosecutors from removing potential jurors based on race, and that prosecutors had to give a race-neutral reason when challenged over the use of a so-called peremptory challenge against a particular juror. In 1994, the court put similar rules in place against excluding jurors based on gender. (MORE)