Juries

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

Will the 9th Circuit Extend Batson to Sexual Orientation?

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 expand the reach of 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

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ABA CLE (Oct 21) on the Prosecutor's Improper Use of Race Based Peremptories

The ABA is holding a CLE on October 21st to discuss a recent report (Illegal Racial Discrimination in Jury Selection: A Continuing Legacy) which examined the improper use of race based peremptory challenges by prosecutors in several Southern states. The report is available here and a NY Times article discussing the report is available here.  

The CLE format is both teleconference and live audio.  To register go here.

Program Description:

As recently reported in the New York Times, "Today, the practice of excluding blacks and other minorities from Southern juries remains widespread" and, according to the Equal Justice Initiative and defense lawyers, is "largely unchecked." There is a continuing indifference to prosecutors' race-based exclusions of prospective jurors.  Prosecutors have learned how to claim that their exclusions are race-neutral, even where they do not exclude white jurors whose answers during jury selection are indistinguishable from those of jurors of color whom the same prosecutors do exclude.

At this program, the renowned Executive Director of the Equal Justice Initiative, Bryan Stevenson, will discuss his organization's June 2010 report on this subject (a report which was the basis for the Times story and other media reports) and will join with other expert panelists and discussing the report's implications and what those who attend this program can do to rectify this situation.  There will be special focus on Tennessee, Alabama, Arkansas, and Mississippi.

Program Faculty

Veronice Coleman-Davis, President/CEO, National Institute for Law & Equality, Memphis, TN

Bryan Stevenson, Executive Director, Equal Justice Initiative, Montgomery, AL

Can't Strike or Keep a Juror Solely Because of Race

I think most regular readers of this blog are aware that an attorney cannot base a peremptory challenge solely on the juror's race (Batson v. Kentucky). Today, the MI Supreme Court in Pellegrino v. AMPCO System Parking addressed the issue of whether a trial judge could overrule an attorney's peremptory challenge in order to ensure a racially diverse jury.  In Pellegrino, the trial judge denied defense counsel the opportunity to strike an African-American juror because the judge wanted "to have a jury that represented the racial composition of this county."

In deciding that the trial court overstepped its bounds, the MI Supreme Court held that to "deny a party the use of of a peremptory challenge on the basis of the court's desire to attain a racially proportionate jury...violates the rule of Batson that jurors must be 'indifferently chosen.'"

Interestingly, up to today, the trial court's decision had been upheld by the Michigan Court of Appeals which found that "although the trial court had not followed Batson procedures, no constitutional error occurred because such an error occurs only when a prospective juror is excused on the basis of race, rather than included on that basis."

Detroit News: Michigan high court rules race can't be considered in jury picks

UPI.com: Race can't be used in jury selection

Study Examines the Impact of Race on Jury Service in the South

A new study (Illegal Racial Discrimination in Jury Selection: A Continuing Legacy) by the Equal Justice Initiative finds that prosecutors, especially in the South, continue to try and keep Blacks of juries. 

The  EJI describes the study as follows:

Nearly 135 years after Congress passed the Civil Rights Act of 1875 to eliminate racial discrimination in jury selection, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases. EJI today released a new report, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which is the most comprehensive study of racial bias in jury selection since the United States Supreme Court tried to limit the practice in Batson v. Kentucky in 1986.

Other media outlets reporting on the study

ABA Journal: Blacks Still Widely Excluded from Southern Juries 

NYTimes: Study Finds Blacks Blocked from Southern Jury Service

Jury Expert and Thaler v. Haynes

The latest version of the Jury Expert is now available.  This edition has a good analysis of Thaler v. Haynes, the SCT's most recent effort to clean up and clarify the world of peremptory challenges and Batson v. Kentucky.

Batson and Peremptory Challenges in Washington State

State v. Rhone

It "appears" that the state of Washington has created a new bright-line rule for the first prong of a Batson claim.  As most know, Batson established a three-part test to determine whether a prospective juror was peremptorily challenged for improper reasons e.g., because of the juror's race or gender. 

To maintain a successful Batson claim, one must first establish a prima facie case of purposeful discrimination in the use of a peremptory challenge against a juror. Second, the burden then shifts to the opposing party to come forward with a race-neutral explanation for challenging the prospective juror. Finally, the trial court determines whether the party making the initial challenge has established purposeful discrimination.

According to the dissent in State v. Rhone, which was adopted by the Washington Supreme Court Chief Justice, and thus became the rule of law:  

 a defendant establishes a  prima facie case of discrimination when, as here, the  record shows that the  State exercised a peremptory challenge against the sole remaining venire member of the defendant's constitutionally cognizable racial group.

In Rhone, the defendant was black and the prosecutor used a peremptory challenge to strike the only blck person in the venire (pool of potential jurors). Unfortunately, for the defendant in Rhone, this rule will be applied to all future trials and thus not impact his case.  For a summary of the Rhone case see, Wash. must explain when striking minority jurors.