Juries

Gay Bias and Jurors

Here is an article in the Jurist discussing the discrimination gay people face in the criminal justice system.  The article primarily examines the harm that arises with jurors who have a gay bias.  The article advocates for the SCT to take up the case of Charles Rhines v. Darin Young.  The petitioner, Charles Rhines, claims that the South Dakota jury that sentenced him to death harbored an anti-gay bias. 

As a general rule, courts don't like to interject themselves into the jury deliberation process.  However, in 2016, the SCT in Pena-Rodriguez v. Colorado overturned a defendant's conviction because members of his jury harbored racial biases against Latinos.  If the SCT were to take up this case and side with the petitioner, it would most likely be viewed as an extension of Pena-Rodriguez to sexual orientation.

Jurist.org: Anti-Gay Bias Has No Place in Our Juries

 

Good Reason for Challenging Juror Doesn’t Negate Bad One: California v. Douglas 2018 S.O.S. 2135

Metnews.com: California v. Douglas 2018 S.O.S. 2135

The Third District Court of Appeal has declared, in a 2-1 opinion, that a gay man convicted in connection with a shooting is entitled to a new trial because two prospective jurors who are gay were excused by the prosecution partially based on their sexual orientation, even though there was a valid ground for rejecting each of them independently of that factor.

One dismissed venireman told of a close relationship with a deputy public defender who portrayed prosecutors as being on the “dark side” of the legal profession and the other, by demeanor, evinced antipathy to the prosecution.

Writing for herself and Presiding Justice Coleman Blease, Justice Elana Duarte said in an opinion filed late Thursday:

“This case is about fairness and equality in our criminal justice system. When a party exercises a peremptory challenge against a prospective juror for an invidious reason, the fact that the party may also have had one or more legitimate reasons for challenging that juror does not eliminate the taint to the process. We reject the application in these circumstances of the so-called ‘mixed motive’ or ‘dual motive’ analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision. We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”

LGBT Juror Non-Discrimination Bill Introduced

Members of both the U.S. House (Juror Non-Discrimination Act of 2017) and Senate (Jury Access for Capable Citizens and Equality in Service Selection, or ACCESS, Act of 2017) have introduced legislation to extend Batson to include a juror's sexual orientation. While the 9th Circuit Court of Appeals and some states prohibit lawyers from using peremptory challenges to remove jurors because of their sexual orientation, there is no federal law preventing them from being struck.  Members of Congress have been trying for the past 5 years to get similar legislation passed without success.

NJ May Extend Batson to Sexual Orientation

As some may 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.  Right now, NJ is considering legislation (A3676) that would extend Batson-like protections to sexual orientation and gender identity.  A few other states, like California and Oregon, have similar laws.  A3676 has already passed the NJ Assembly and a companion bill, S2460, has been introduced into the NJ Senate. There have been similar legislative measures on the federal level but they have all been unsuccessful.  

 

 

Reversible Error Not to Allow Voir Dire on Sexual Preferences: Bates v. U.S.

Interesting unpublished opinion out of the 11th Circuit Court of Appeals.  In Bates v. U.S. a three-judge panel found the following: 

Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr. Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.

H/tip Southern District of Florida of Florida Blog