Juries

Is WV Going to Extend Batson to Sexual Orientation?

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.  West Virginia may soon follow suit.

This week the WV House Judiciary Committee passed an amendment that would include sexual orientation among the factors that courts cannot  use to eliminate potential jurors. Currently WV courts cannot ban jurors based on  race, color, religion, sex, nation of origin, economic status  or disability.  West Virginia Delegate Cliff Moore said that he could think of a million reasons to support  the amendment but not a single reason to oppose it.

To read more about the legislation go here.

Extending Batson to Sexual Orinetation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation. 

The federal government may soon follow suit if Congresswoman Susan Davis has her way.  She has introduced legislation (Juror Non-Discrimination Act) in the U.S. House of Representatives that will prohibit attorneys from striking potential federal jurors because of their sexual orientation or gender identity.  Similar legislation was introduced in the last Congress without success.

According to Congresswoman Davis, “Serving on a jury is one of America’s most cherished civic duties. It is unjust to exclude a particular group of people from participating in civil society because of whom they love or what they look like.  The federal government already prohibits juror discrimination on the basis of race, color, religion, sex, national origin, and economic status and as we pursue greater equality for all Americans, I believe LGBT Americans should be also be free from juror discrimination.”

Those in favor of extending Batson to sexual orientation argue that it is necessary and point to instances where attorneys have used peremptory challenges to remove jurors because of their sexual orientation. Recently, a judge in San Diego chastised a prosecutor for using a peremptory challenge to remove a gay juror because of his sexual orientation.

NV SCT:Hold Batson Hearing Before Dismissing Prospective Juror

In Brass v. Nevada, the Nevada Supreme Court in a three-judge panel opinion overturned the First Degree Murder conviction of Jermaine Brass who along with his brother had been convicted of killing his sister's boyfriend.  The reversal was due to the faulty jury selection process that occurred during the joint murder trial of Jermaine and his brother. 

During voir dire, counsel for the defendant objected to the prosecution using a peremptory challenge to remove juror No. 173 who was a Black female. This was the second African American juror challenged by the prosecution. Defense counsel argued that juror No. 173 was qualified to sit and that the prosecution was exercising its peremptory challenges in violation of Batson v. Kentucky, which prohibits using a peremptory challenge to strike a juror because of his or her race.  After defense counsel raised this issue, the trial court took a 15 minute break.  During that break, the trial court permanently dismissed a number of jurors to include juror No. 173. 

Upon returning from the break, the judge held a Batson hearing and determined that the state had offered sufficient race-neutral reasons for challenging  juror No. 173.  As some may recall, a Batson hearing involves a three-step process. First, the opponent of the peremptory challenge must set forth a prima facie case of racial discrimination.  Second, the proponent of the strike must offer race-neutral reasons for exercising the challenge.  Third, the judge must then decide if the opponent of the strike has proven purposeful discrimination.

In overruling the trial court's actions, the Nevada Supreme Court determined that "[d]ismissing this prospective juror prior to holding the Batson hearing had the same effect as a racially discriminatory peremptory challenge because even if the defendants were able to prove purposeful discrimination, they would be left with limited recourse."  The Court then went on to say that failing to hold a Batson hearing is a structural error requiring reversal of defendant's conviction. 

As an aside, Associate Justice Gibbons noted in a concurrence that the reason offered by the prosecutor for challenging juror No. 173 (she held democratic views) was inappropriate.  According to Justice Gibbons, "[p]olitical affiliation is not a proper component as a basis for asserting a challenge to a juror." 

 

Extending Batson to Sexual Orientation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.  

The federal government may soon follow suit if Senators Jeanne Shaheen (D-NH), Susan Collins (R-ME), and Sheldon Whitehouse (D-RI) have their way.  They recently introduced a bill entitled the Jury Access for Capable Citizens and Equality in Service Selection (ACCESS) Act of 2012.  This bill prohibits attorneys from striking potential federal jurors because of their sexual orientation or gender identity. 

According to Senator Shaheen, “[d]iscriminating against a potential juror because of sexual orientation or gender identity is unacceptable, and it should not be tolerated. Our country is founded on principles of inclusion and acceptance and the jury selection process should be no different.”  Earlier this year, Representative Steve Rothman introduced a similar bill HR 5848 in the U.S. House of Representatives. 

Those in favor of extending Batson to sexual orientation argue that it is necessary and point to instances where attorneys have used peremptory challenges to remove jurors because of their sexual orientation. Recently, a judge in San Diego chastised a prosecutor for using a peremptory challenge to remove a gay juror because of his sexual orientation.  

9th Circuit: No Ex Parte Batson Explanations

Last week in a split panel decision (2-1), the 9th Circuit Court of Appeals ordered a new trial for a man sentenced to death.  In Ayala v. Wong, the court determined that the defendant's constitutional rights were violated during his 1989 trial for capital murder. 

In this case, the defendant raised a Batson/Wheeler challenge after the prosecutor used peremptory strikes to remove prospective minority jurors.  After the defense counsel raised the Batson/Wheeler motion and established a prima facie case for bias, the trial judge allowed the prosecutor to provide his race neutral reasons for his peremptory challenges during an in camera hearing where defense counsel and the defendant were excluded. 

According to Judge Stephen Reinhardt of the 9th Circuit who sat on the panel, "[w]e hold that this procedure violated the Constitution..."  This constitutional violation was compounded by the fact that part of the trial transcript was lost.

For more on this case go here and here.

 

Symposium Issue on Batson: New Law Review

For those who can't get enough of Batson v. Kentucky, I highly recommend reading the latest edition of the Iowa Law Review.  This symposium edition is dedicated to examining the impact of Batson over the past 25 years. 

Twenty-Five Years of Batson: An Introduction to Equal Protection Regulation of Peremptory Jury Challenges

by James J. Tomkovicz    View Article

 

Statistical Proof of Racial Discrimination in the Use of Peremptory Challenges: The Impact and Promise of the Miller-El Line of Cases As Reflected in the Experience of One Philadelphia Capital Case

by David C. Baldus et al.    View Article

 

Prosecutors and Peremptories

by Alafair S. Burke    View Article

 

Batson “Blame” and Its Implications for Equal Protection Analysis

by Robin Charlow    View Article

 

Batson’s Grand Jury DNA

by Roger A. Fairfax, Jr.    View Article

 

A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials

by Catherine M. Grosso & Barbara O'Brien

View Article

 

Civilizing Batson

by Nancy Leong    View Article

 

Batson Revisited

by Nancy S. Marder    View Article

 

Batson Remedies

by Jason Mazzone    View Article

 

Policing the Borders of Democracy: The Continuing Role of Batson in Protecting the Citizenship Rights of the Excluded

by Melynda J. Price    View Article

 

Jury Selection and the Coase Theorem

by Dru Stevenson    View Article

 

The People’s Peremptory Challenge and
Batson: Aiding the People’s Voice and
Vision Through the “Representative” Jury

by Andrew E. Taslitz    View Article

 

Why Batson Misses the Point

by Tania Tetlow    View Article

 

Extending Batson to Sexual Orientation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.  

The federal government may soon follow suit if Representative Steve Rothman has his way.  He recently introduced the Juror Non-Discrimination Act of 2012. This bill, known as HR 5848, prohibits the exclusion of individuals from service on a federal jury because of their sexual orientation or gender identity. Similar legislation was introduced earlier this year in Minnesota. 

Those in favor of legislation such as HR 5848 argue that it is necessary and point to instances where attorneys have used peremptory challenges to remove jurors because of their sexual orientation. Recently, a judge in San Diego chastised a prosecutor for using a peremptory challenge to remove a gay juror because of his sexual orientation.   

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Extending Batson to Sexual Orientation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.  Minnesota may soon follow suit if state Senator Scott Dibble has his way.  He recently introduced SF 1777  (Jury service exclusion due to marital status or sexual orientation) in the Minnesota state senate.  The bill prohibits excluding anyone from jury service because of their sexual orientation and marital status.  At present, Minnesota law currently bars discrimination in jury selection based on race, color, religion, sex, national origin, economic status, or a physical or sensory disability.

For more background on this topic see the articles below.

Huffington Post: Discrimination Against LGBT Jurors Remains Legal

‎Union Tribune: Judge slams prosecutors for dismissing gay juror

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Application of Batson in the Courts of Appeal: New Law Review Article

Emily C. Jeffcott adn Mikal C. Watts, What's Required to Remedy Juror Discrimination?  A Brief Discussion on Batson and Its Available Remedies, 13 Scholar 615 (2011).

Abstract: [T]his Article serves as a geographical “primer” of sorts by explaining the essential steps to presenting a Batson challenge within each circuit. Ultimately, the goal of this Article is to provide a thorough analysis of recent circuit court Batson jurisprudence while concurrently issuing “rules of the road” useful to all practitioners, wherever their cases may be driving them.

Update: Extending Batson to Sexual Orientation

Since this issue has received additional attention since last week, I am updating this blog post from Friday.

News Articles.

Time: How a Fight over Jury Selection Could Advance Gay Rights

Gayapolis: Should Jurors Be Dismissed for Being Gay?

‎This week the 9th Circuit heard arguments in United States v. Daniel Osazuwa.  This case involves a gay defendant who was convicted of assaulting a prison guard.  In his appeal, the defendant claims that his trial was flawed because the judge failed to grant his Batson challenge.  The Batson issue arose because the governement used a peremptory challenge to remove a lesbian from the jury pool. 

To date, Batson, at least on the federal level, has only been applied to race, gender and ethnicity not sexual orientation.   Previous attempts to extend Batson to sexual orientation have been unsuccessful.  However, the legal landscape has changed since those efforts.  Most significantly, the current administration now believes that sexual-orientation classifications should be reviewed at a heightened level of scrutiny as opposed to the lowest level of scrutiny (rational basis) which was used in the past.   With this change, it is quite possible that the Osazuwa case may lead to one more classification added to Batson.

For more information on this topic see the articles below and the government's brief here.

Care2.com (blog): Lesbian's Exclusion from Jury Duty Raises Legal Scrutiny Question

LA Times: Potential jurors shouldn't be dismissed for being gay, court told