May 23, 2012
By Scottie Thomaston
Jurors who are LGBT can be removed from trials simply because of their sexual orientation or gender identity. Federal law doesn’t prohibit juror discrimination on that basis, though the Supreme Court has ruled – in Batson v. Kentucky that jurors can’t be discriminated against on the basis of race. The Department of Justice had an opportunity to address the issue in 2011 after it decided that laws affecting gays and lesbians should be subject to heightened scrutiny, but it declined:
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.
Now a congressman – Steve Rothman (D-New Jersey) is proposing a bill, the Juror Non-Discrimination Act of 2012, to prevent jurors from being dismissed for being LGBT:
The Juror Non-Discrimination Act of 2012 will prohibit potential jurors from being dismissed because they are part of the LGBT community.
“The fact that it is still lawful for lawyers to dismiss potential jurors solely on the basis of a person’s sexual orientation or gender identity is wrong and has to change,” said Rothman said in a statement.
“Until the 20th century, women in many states were barred from serving on juries and it was not until the 1980s that prosecutors were prohibited from systematically excluding African-Americans from juries. It is past time for America to take the next step against bigotry and inequality and pass the Juror Non-Discrimination Act.”
This is an important issue, in part because of the institutional bias that exists in the criminal legal system:
[I]n a great many cases, prosecutors tend to play on LGBT stereotypes in order to obtain a conviction. They have used the idea that being transgender is sneaky and deceitful to get a guilty verdict from jurors that might be swayed by homophobic language. They’ve even, in some cases, used homosexuality in family court to accuse the person suing for custody of being an alcoholic and sexually promiscuous, based on completely incorrect but long-held stereotypes.
LGBTs and gender non-conforming people are also often denied effective counsel. This happens on purpose in some instances, but in others, their lawyers are just ineffective. They are unaware of the lives of their LGBT clients and what’s an acceptable way to represent them and what is not. Another problem with lack of effective representation is the fact that many LGBTs are – despite the common stereotype – poor and unable to afford good lawyers who would do the research required for effectiveness.
Since stereotypes about LGBT people are often used to get convictions, and since in a lot of cases even defense attorneys aren’t adequately informed on LGBT issues, it’s even more important to at least allow a case to be heard by a jury of someone’s peers. At some point in the process of arrest and trial, the accused person should be able to have their defense heard by people willing to take it seriously instead of dismissing it based on long-held views about LGBT people.
Even when there’s direct evidence of discrimination nothing is done:
A 2003 civil case in Missouri hinged on a juror’s “alternative lifestyle.”
After Nissan Motor Acceptance Corporation attempted to repossess a vehicle belonging to William and Jennifer Brooker, the Brookers filed a counterclaim saying that Nissan sold them a car that had previously been in an accident without disclosing that fact.
During jury selection, lawyers for Nissan struck a juror named Mitchem.
“Mr. Mitchem is different, that’s the best I can put it. I think he’s just someone who would not necessarily be defense minded,” the attorney for Nissan said. The attorney later added, “I have tended to find that people with alternative lifestyles are — or perceived alternative lifestyles — tend to be fairly liberal in their thinking.”
The Brookers, according to the appeals court, claimed that the removal of Mitchem “constitutes grounds for a new trial because he was impermissibly kept from the jury on the basis of ‘sexual orientation.’”
The court disagreed, writing that Nissan’s counsel “did not inquire into Mr. Mitchem’s sexual preference, he simply surmised, based on Mr. Mitchem’s appearance and demeanor, that he was potentially biased against corporate defendants.”
“Missouri has not declared that it is a Batson violation to use a peremptory challenge on the basis of perceived alternative lifestyle,” the court wrote. The court went on to note that Missouri has not adopted legislation protecting LBGT people from discrimination, adding: “If the Missouri legislature desired to protect this class in jury selection, as California has, it would have enacted such a statute. Moreover, the United States Supreme Court has yet to include sexual orientation within the purview of Batson. … Thus, there is no reason for this Court to expand the boundaries of Batson at the present time.”
At least until the courts decide to include sexual orientation and gender identity in challenges against the removal of a juror, this law would be a necessary step toward justice.