Commentary : A Charge to Dim a Would-Be Juror’s Zeal : Law’s Approach to Smuggling Aliens Strikes a Generational Nerve

When the notice to appear for federal jury duty came in the mail, I wanted to serve. I thought it would be a lark, a spree, a great adventure.

All through the morning wait to be called, as I worked one crossword puzzle after another, my enthusiasm never waned. When the clerk of the jury said, “Go to Courtroom 2, third floor, please,” my heart skipped a beat. And when the clerk of the court called out “all rise” as the judge entered, his robe billowing behind him, I stood, looked around the courtroom and felt smug and superior to everyone who had ever pulled strings to get excused.

I wanted to serve on a jury in this courtroom--until I heard the judge say: “The defendant to this complaint has been charged with transporting illegal aliens into the United States.”

I looked from the judge to the defendant, and I remembered my grandparents. Suddenly I knew this courtroom was no place for me.

My grandparents came from Rovno, a provincial town in the Pale of Settlement in Russia, the only place in Czarist Russia where Jews were legally authorized to live, and from where they could not travel without special permits.

In Rovno, my grandparents lived lives without equality, well-being or peace; lived under 600 anti-Jewish decrees that had been enacted from 1825 to 1855, decrees enacted to destroy the Jews as a social and religious group. These decrees encouraged their conversion by force, established a military draft of 25 years’ service for their 12-year-old sons, encouraged the Russian peasants’ belief that the Jews were the enemies of Christ and Christianity, condoned raids on Jewish villages and encouraged plundering, rape and murder.

A Jew could leave Russia by crossing the Austro-Hungarian border illegally, surreptitiously getting to Vienna or Berlin, and then, somehow, moving on to the ports of Hamburg, Rotterdam or Antwerp. The journey was illegal and dangerous, for in all of Eastern Europe Jews were not protected by the law but were the victims of it.

My grandparents were able to leave Russia and to make their way across Eastern Europe to Antwerp because there were guides who would, for a price, take them through forests in the dark of night and smuggle them past border guards and patrols.

From 1881 to 1914, nearly 2 million Jews arrived in America. Without guides to smuggle them across closed national borders, few of them would have ever made it.

Except for a few necessities--and 15 German marks per person to pay the guides--my grandparents brought little with them from Russia but a belief in the American dream: “In America, you work, you study and you can be somebody.”

They brought no national costumes, no memories of folk songs to sing to us or folk dances to teach to us and certainly no picturesque tales of old world life.

The moment they were smuggled across the border and out of Russia the past was done.

At 10 p.m. on July 13, 1942, the ghetto in Rovno was surrounded by a large number of SS troops and about three times their number of Ukranian militiamen.

At 10:30, the electric arc lamps that had been previously set up around the ghetto were turned on, and the SS and the militia began to break into the homes. They smashed windows, forced doors open with beams and crowbars and ordered the people out into the streets.

Most of the Jews refused to leave, and so by kicks and blows and with whips and rifle butts they were forced from their homes and into the streets, by then filled with women wailing for their children and children crying for their parents.

All were driven along the streets toward a waiting freight train.

One freight car after another was filled with the bleeding and battered people, and the screams and the lashing of whips and the sound of rifle shots continued all through the night.

By 6 a.m. the following morning, it was silent and still. The doors of the houses hung askew from their hinges, the windows were smashed, and in the streets lay bits of clothing and a few dozen corpses of every age and of both sexes.

“If you are chosen to be on this jury,” the judge said, “as I will be the judge of the law, so you will be the judge of the facts.”

The facts. Five thousand people were driven from their homes in the ghetto in Rovno on the night of July 13, 1942. You could count on the fingers of one hand the number who returned.

“Can you make a decision based only on the facts you will hear in this courtroom?” the judge asked.

The facts. Before World War I, 1 million immigrants legally entered the United States each year. In 1921, Congress limited the number to 358,000. By 1929, the number had been lowered twice more, down to 150,000 a year.

But, of course, they kept coming. Foolish people who believed the words chiseled into the base on the Statue of Liberty. Determined people who lacked one, two or all of the new requirements: valid passports, visas, documents to prove they were eligible under their countries’ quotas, written testimony to their good character and lack of communist or anarchist affiliation, proof that they would not become public charges. Persistent, tenacious and courageous people who continued to pay guides to smuggle them across closed borders so they could set sail.

The judge looked down at the first prospective juror.

“Can you make a decision based only on what you will hear in this courtroom?”

“Yes,” said the juror and “Yes,” said a second and a third.

I thought of my grandparents waiting for the clouds to cover a full moon, holding a single bundle in one hand, the coins to pay a guide in the other.

I thought of the people who never paid a guide to smuggle them over a border, of the shattered windows and of a waiting freight train.

Up one row and down the next, the judge polled the prospective jurors, and the “yes” answers kept coming.

My grandmothers did not live to see their grandchildren graduate from the colleges and universities in California, then become indistinguishable from our neighbors in the planned suburban communities where we live. They never knew us as good second-generation Americans with all the rights and privileges thereof--including the right to serve on a jury at the trial of someone accused of transporting illegal aliens into the United States.

The judge looked down at me.

“And you, young lady, what do you say?”

(I wanted to say, “This is a hypocrisy and I say the hell with it.”)

“Can you make a decision based only on the facts you will hear in this courtroom?”

“No, your honor.”

“No?”

“No.”

The judge looked at the attorneys.

I looked at the defendant, who was sitting scarcely 10 feet from me, his head cocked to the right to hear the interpreter’s simultaneous translation, and I wondered: Who, on this God’s green earth, are we refurbishing the Statue of Liberty for?

“Excused,” said the prosecutor.

“Excused,” said the defense attorney.

“Dismissed,” said the judge.

I stood up, walked out of the courtroom, and the doors swung shut behind me.