My former AINN colleague Andy Birkey has an article that was republished at the Huffington Post about the fact that it’s perfectly legal to dismiss someone from serving on a jury solely because they’re gay. He writes:
In 2005, a federal court upheld Lewis’ removal, observing that “no federal law” prevents attorneys from removing “cross-dressers or transvestites” from juries.
Lewis’ experience is not unique. Federal courts have consistently declined to prohibit attorneys from openly discriminating against LGBT people during jury selection. And as recently as last year, the U.S. Department of Justice told a panel of judges that it “takes no position” on whether the case law that prohibits attorneys from removing jurors based on race or sex should be extended to cover sexual orientation.
While California has since banned jury discrimination based on sexual orientation, most other states have not.
There’s a bill in Minnesota, where Andy lives, that would fix that if passed. But the problem goes far beyond that:
In the 1986 case of Batson v. Kentucky — and in a series of cases that elaborated on it — the U.S. Supreme Court ruled that jurors could not be dismissed solely because of their race.
Attorneys have two tools to create a jury. They can remove a juror for cause if the juror has an obvious bias such as being related to the defendant or expressing an opinion that makes clear he or she cannot fairly consider the facts.
Attorneys also have a limited number of peremptory strikes, which they can use to remove jurors who don’t have an obvious bias. In most cases, the attorney doesn’t have to state a reason, but if race is the motivation, it’s a violation of Batson.
Under the Batson test, if a defense attorney makes a plausible showing that the prosecutor is dismissing jurors based on their race, the prosecutor must then state race-neutral reasons for the peremptory strikes. The judge then determines whether the jurors were improperly excluded. (It works the other way, as well; prosecutors can object to the defense’s peremptory challenges by arguing they were based on race.)
The Supreme Court has extended Batson to cover discrimination based on sex, but it has never outlawed peremptory strikes based on sexual orientation or gender identity.
But in reality, even the prohibitions on discrimination on the basis of race and sex are virtually meaningless. After Batson, the courts have consistently narrowed its application. Any absurd excuse for a race- or sex-neutral basis is accepted, no matter how transparently absurd it might be. So I’m not holding my breath waiting for them to enforce anything like equality on sexual orientation.
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Michael Heath
May 7, 2012 at 9:50 am (UTC -4) Link to this comment
Do the courts allow juror discrimination by political or religious affiliation? It seems the courts allow discrimination by looking to the classes protected by specific legislation and no further. If true it seems like you could for the former but not for the latter.
jamessweet
May 7, 2012 at 10:03 am (UTC -4) Link to this comment
My uninformed knee jerk reaction here is to wonder if the problem is peremptory strikes, which are practically begging to be used in a discriminatory manner. Even if an attorney was not consciously using her peremptory strikes to discriminate on the basis of race, gender, sexual orientation, etc., it’s a real opportunity for systemic bias to creep in.
What would be the downside on eliminating peremptory strikes and only allowing attorneys to dismiss jurors for reasons they can justify?
Brenda
May 7, 2012 at 10:13 am (UTC -4) Link to this comment
The same thing goes for anti-discrimination laws in many places. If the state is also an “at-will” state, an employer can fire someone for any reason or no reason; the burden of proof that the true reason was discriminatory is on the person fired. Good luck with that.
slc1
May 7, 2012 at 10:31 am (UTC -4) Link to this comment
Re Jamessweet @ #2
The number of peremptory challenges is usually severely limited. If an attorney tries to exclude people from the jury based on issues like religion, race, sexual orientation, etc. he/she will very soon run out of peremptory challenges and and may well be forced to take people who were worse from his/her point of view then the people who were excluded. Thus, any experienced trial attorney will use his/her peremptory challenges sparingly and restrict their use to potential jurors who he/she feels, based on body language when answering questions, have an agenda.
Gregory in Seattle
May 7, 2012 at 10:32 am (UTC -4) Link to this comment
@Michael Heath #1 – In Washington, yes: jurors can be dismissed on the grounds of political or religious affiliation. I was on a jury panel for a capital case: the prosecutor read out a list of denominations, including “humanism,” and asked any jurors who were affiated with them to raise their hand. We were ordered to leave the room, as we could not be counted on to sentence the accused to death.
Gregory in Seattle
May 7, 2012 at 10:36 am (UTC -4) Link to this comment
Actually, thinking back on the case (it was a few years ago), the prosecutor asked for a show of hands of anyone who had objections to the death penalty, and listed off a few organizations known to teach opposition to or otherwise oppose it. We were summarily dismissed. Not sure if that would count as a removal based on religion.
slc1
May 7, 2012 at 10:44 am (UTC -4) Link to this comment
Re Gregory
I assume that it was a death penalty case. Prosecutors have the right to have what is termed a death penalty qualified jury for such a case and anyone who opposes the death penalty will be automatically excluded from serving. This actually gives the prosecution an advantage in the guilt/not-guilt phase of the case because death penalty qualified jurors tend to be older and more conservative law and order types. As I have stated on several occasions on this blog, failure to ask for the death penalty in the OJ Simpson case was a major blunder by District Attorney Gil Garcetti, who did it for political reasons, not justice reasons.
eric
May 7, 2012 at 10:47 am (UTC -4) Link to this comment
I was unaware there were any rules against using preemptive challenges in a discriminatory manner.
I guess I agree that exclusion based on sexual preference ought to be as illegal as exclusion based on sex or race. I’m just not sure there’s a practical point in trying have any such guidelines in the first place. As Ed points out, they are practically unenforceable.
Gregory – in Maryland it used to be part of the constitution that anyone who didn’t believe in God, an afterlife, and eternal judgement was not considered competent enough to be a jurer. Given the age of the clause and the sectarian nature of the early colonies, however, I doubt they were thinking of nonbelievers when they wrote it.
jessicadaniellesmith
May 7, 2012 at 11:12 am (UTC -4) Link to this comment
@Brenda #3:
I live in such a state, a lawyer won’t even take a case. I recently tried when I was dismissed from a job based on medical discrimination (I guess that’s the way to put it). Unless you have some type of recording/documentation that it was Sex/Race/Religion related discrimination, you’re screwed.
d cwilson
May 7, 2012 at 11:26 am (UTC -4) Link to this comment
Jury duty is the one aspect of life that I suspect most people would love to be discriminated against.
Ben P
May 7, 2012 at 11:41 am (UTC -4) Link to this comment
I’ve been 2nd chair in a trial where we used a pre-emptive strike against a minister precisely because he was a minister. I’ve heard other lawyers say to the effect that they never want a preacher sitting on the jury.
It’s not precisely anti-religious, rather, jury selection is about trying to limit outside influences, regardless of the specific nature of the religious belief a minister is going to be carrying a lot of baggage and can influence people.
Political is likewise ok, and in many cases political affiliation is precisely what we’d want to know. But the problem with political affiliation is that you can’t ask about it directly and get reliable responses. You can’t just ask a jury “are there any republicans here?”
As for Gregory in seattle’s anecdote, that seems to me to be an interesting perspective on the part of a prosecutor, but is otherwise ordinary.
Actually in many of the cases I work on (civil rather than criminal, and generally on the defense) I’d love to have a humanist or atheist on the jury. Many of the cases I work on are specifically plaintiffs attempting to appeal to the emotions of the jury versus our contention that the evidence simply doesn’t show us to have done anything wrong, despite the fact some accident occurred. I’d want jurors that can set aside emotion and can be critical of claims not based in evidence.
Gregory in Seattle
May 7, 2012 at 12:29 pm (UTC -4) Link to this comment
*Shrug* The way the dismissal was phrased made it seem that we could not be tossed because of our stand on the death penalty, but could be tossed because of our religious and philosophical beliefs. It left me pretty steamed.
Ben P
May 7, 2012 at 3:16 pm (UTC -4) Link to this comment
Who knows.
I’ll rephrase what I said slightly.
What’s ordinary about the situation is the death penalty being the cause of jurors getting dismissed. The concept of a “death qualified jury” is well established, but makes me angry a little bit in and of itself.
To explain briefly. The way jury selection works is typically this.
Each side has an unlimited number of “for cause” strikes, that is, you tell the judge why you believe this juror cannot fairly view the situation in this case, and ask the judge to dismiss them. If the judge agrees, the juror is dismissed “for cause.”
However, each side typically also has 3 premptory strikes, where you can strike a juror for any reason, without any explanation. Batson is a very narrow exception which states that if the prosecutor is using premptory strikes based on race, that is a violation of the 14th amendment. (it was brought about by the tendency for prosecutors to pick all white juries for black defendants)
THe idea of a “death qualified jury” is that Courts have held that it is permissible for a prosecutor to ask not only do you “not believe in the death penalty” but “could you sentance someone to death if the facts merited it.”
If you answer no, regardless whether its from a religious objection, or a philosophical one, or just being squeamish, that’s not just a preemptoy strike, but a “for cause” strike because you’ve told the court you couldn’t follow the law if the law merited the death penalty.
The net result is whenever we have a jury on a capital murder case, anyone who says they couldn’t vote to sentance someone to death is already off the jury. Statistically, death qualified juries are much more likely to convict than non-death qualified juries, which is a pretty concerning fact to me.
slc1
May 7, 2012 at 5:10 pm (UTC -4) Link to this comment
Re Ben P @ #13
The net result is whenever we have a jury on a capital murder case, anyone who says they couldn’t vote to sentance someone to death is already off the jury. Statistically, death qualified juries are much more likely to convict than non-death qualified juries, which is a pretty concerning fact to me.
As I have opined on several occasions on this blog. However, if we are going to retain capital punishment, what’s the alternative? Obviously, if individuals who oppose the death penalty are allowed to serve on capital cases, we will start getting hung juries in the penalty phase of the case. As I understand the law in most jurisdictions, unlike a hung jury in the guilty/not-proven phase of the case, where the prosecutor can get a second bite at the apple, a hung jury in the penalty phase automatically defaults to life imprisonment without parole.
However, the notion that death penalty qualified juries are more likely to convict because the makeup tends to be older and more conservative, is a disturbing finding. The only approach I can think of to alleviate the situation, other then abolishment of the death penalty, is to have two separate juries in capital cases, one for guilt/unproven and the other for the penalty phase. In this scenario, only the penalty phase would require a death penalty qualified jury.
Ben P
May 7, 2012 at 5:37 pm (UTC -4) Link to this comment
I believe that’s correct, although these days a lot more states take sentencing decisions out of the jury altogether.
I’m of the opinion that questions about the death penalty should be circumscribed during voire dire, and you should let the chips fall where they may. If we’re keeping the death penalty under the jury system I think it’s only fair that this incorporate the jury’s views on the death penalty itself.
I do agree with a guilt vs non-guilt phase first, then a separate phase for death vs non-death. That removes the “mistrial because we can’t agree on the death penalty” problem.
slc1
May 7, 2012 at 5:58 pm (UTC -4) Link to this comment
Re Ben P @ #15
I may be wrong about this but I thought I remembered a Supreme Court decision that a finding by a jury was require to impose capital punishment.
Childermass
May 8, 2012 at 8:43 am (UTC -4) Link to this comment
Brenda @ 3:
For all practical purposes very state is “at will” sans certain anti-discrimination laws. The only exceptions are for certain government jobs and if you have a contract protecting you from arbitrary firings either personally or via a union.