Can jurors be struck due to sexual orientation?

When I was a young Assistant District Attorney prosecuting criminal cases in rural Georgia, the emphatic order from the District Attorney was to strike all African Americans (that’s certainly not the term he used) from jury panels.

When I started work as an associate in an insurance defense law firm in Atlanta, the rule passed down from the senior partner was to strike from juries all ethnic minorities – black, Hispanic, Jewish, etc.

In those days, we did not need any reasons to exercise peremptory strikes of jurors. With rare exception, I did as the guys approving my paychecks dictated, whether or not I believed their bias was justified. No excuses. I just needed my paycheck and did as I was told.

Then in 1986, the U. S. Supreme Court held, in the case of Batson v. Kentucky , that systemic discrimination in jury selection was a violation of constitutional provisions guaranteeing the defendant an impartial jury and a jury composed of persons representing a fair cross section of the community. Thus, strikes of African American jurors had to be justified with a nondiscriminatory explanation if challenged.

There has been over a quarter century of case law parsing what is a sufficient nondiscriminatory explanation and what is merely pretextual. Many cases have been decided extending Batson to from criminal cases to civil cases, and extending it to aspects of ethnic or gender discrimination beyond black and white. I’m not writing a law review article on all that.

Over time, I grew to recognize that stereotypes in jury selection are dangerous and generally invalid. You simply cannot and should not judge a book by its cover. Humans with their individual attitudes and life experiences are far too complex and varied for stereotypes to be universally reliable.

Once I was trying a case for an African American client in a rural Georgia county when the insurance defense lawyer struck all the African Americans in the jury pool, just as I had been directed to do when I was an insurance defense lawyer. I made a “Batson motion” asking that the court require the lawyer to state nondiscriminatory reasons for those strikes. He responded: “I don’t know why I struck [her]. If I’ve got to come up with an excuse, I’m sure I could come up with an excuse. I might ask [plaintiffs' counsel] why he struck the people he struck. I resent it. I resent it that every time a black person is in court or in any place in this society, the first thing that comes to mind from people like [plaintiffs' counsel] is that there’s something racial about a case, that there’s something racially involved in the case. I resent it, I strongly resent it, I think the system ought to resent it, and I think your Honor ought to resent it. That’s the only thing I have to say about this. I would ask that the Court reject his motion, whatever it is. I don’t deal in those kind of things so I don’t even know what kind of motion he’s talking about.”

While the trial court didn’t do anything about it, the Georgia Court of Appeals did, holding that statement was “wholly insufficient” as he failed to give a “‘clear and reasonably specific,” explanation of his “legitimate reasons” for exercising the challenges.’  Franklin v. Tackett, 209 Ga.App. 448, 433 S.E.2d 710 (1993).

Another time in Fulton County, I struck everyone who looked like me.  Judge Roland Barnes (who was murdered on the bench years later in an infamous courthouse shooting), beckoned me up to the bench and said with a smile that he was surprised the defense lawyer – who was African American — did not make a Batson motion over my striking all white males.

Today’s news includes a report that the Ninth Circuit Court of Appeals has extended Batson to the exercise of peremptory strikes of jurors on the basis of sexual orientation. The Ninth Circuit decision states, “Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation.”

The Eighth Circuit Court of Appeals in St. Louis reached the opposite conclusion in 2005, holding, “We doubt Batson and its progeny extend constitutional protection to the sexual orientations” of potential jurors.

With a conflict between circuits, it is more likely that this issue will reach the U. S. Supreme Court in a year or two. I will not venture a guess how the Supreme Court might rule in light of its decision last summer in U. S. vs. Windsor.

To some extent I am a product of my raising – conservative, rural, traditional, Southerner – so the necessity of articulating reasons for jury strikes other than old stereotypes has been a growth experience for me.

But forcing lawyers to think through jury selection choices beyond old prejudices helps us to be better lawyers and to do a better job for all our clients. Dr. King, whose birthday was observed this week, famously said, “I look to a day when people will not be judged by the color of their skin, but by the content of their character.” During my lifetime that has been extended gradually beyond questions of color alone.

 

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.