Equality In The Jury Box

by Crystal A. Proxmire

Among the lesser-known places discrimination takes place is inside the courtroom, particularly in states where it is not illegal to dismiss jurors because of their sexual orientation or gender expression. Michigan is one of those states.

The Jury ACCESS (Access for Capable Citizens and Equality in Service Selection) Act of 2013, recently introduced by Sen. Jeanne Shaheen (D-NH), seeks to amend title 28, United States Code, to prohibit the exclusion of individuals from service on a federal jury because of their sexual orientation or gender identity. The bill was co-sponsored by U.S. Sen. Sheldon Whitehouse (D-R.I.) and U.S. Sen. Susan Collins (R-Maine). On Jan. 22 it was introduced and referred to the Committee on the Judiciary.

In a press release Shaheen said, "Our country is founded on the principles of inclusion, acceptance, and equality. The jury selection process in federal courts should reflect those principles. We simply can't tolerate discrimination against a potential juror because of sexual orientation or gender identity."

Potential jurors currently cannot be excluded based on race, color, religion, sex, national origin or economic status. The Act would expand that to include sexual orientation and gender identity. The Act would only apply in federal court. States will continue to regulate the jury selection process for the lower courts.

The Process

Voir Dire is the process through which jurors are questioned and selected. This process is supposed to help find a jury that both sides think will be fair.

Jury selection is an important part of criminal and civil trials. An attorney on either side might find it useful to know if a juror is gay or if they hold any animosity towards, or any strong affiliation with LGBT people.

In 2009, Seattle-based attorney Sean Overland wrote "Strategies for Combatting Antigay Sentiment in the Courtroom," a piece that discussed the acceptance ratings at the time, as well as techniques for identifying juror feelings about gay clients.

He recommended the attorneys use questions like the following to help determine juror attitudes:

"Would you feel bothered if a gay or lesbian couple moved in next door to you? Do you think employers should be able to refuse to hire someone because of his or her sexual orientation? Would you feel bothered if you had to work closely with someone who was gay or lesbian?"

He also recommended asking questions about how much one is motivated by religious beliefs. However, as more and more communities of faith embrace the LGBT community, this is less of an indicator of anti-gay bias.

Michigan

Here in Michigan there are no state laws or court rules that explicitly protect against discrimination in jury selection based on sexual orientation or gender identity. Because it is not prohibited, discrimination is permitted, and to a certain extent even protected. Attorney John Allen of Allen Brothers Attorneys and Counselors in Detroit explained the way jury selection happens.

"It isn't always like you see on TV," Allen said. "A lot of it comes down to the judge. How much latitude parties get in questioning potential jurors is up to the judge. Some judges don't want the lawyers to take too much time. Sometimes the scope of voir dire is narrow. And sometimes judges require that lawyers give their questions to the judge ahead of time so the judge decides what potential jurors can be asked and what they can't be asked.

"The first gatekeeper is the judge. Most judges understand that if someone is on trial for their liberty it can take longer to question jurors," Allen said.

He added that attorneys can reject jurors for good cause, such as an obvious bias, or they can eliminate up to three at their discretion and without explanation, called peremptory challenges. If based on any current state protected classes, it can give cause for appeal later on. Michigan law goes further and prohibits any attempt to influence racial makeup of the jury, even for the sake of having jurors of the same color as the plaintiff or defendant. This means, for example, that a black defendant could legally be tried by an all-white jury.

In Michigan current LGBT battles are focused on amending Elliot Larsen so LGBT citizens will finally be protected against discrimination in housing, the workplace and public accommodation, and on working towards marriage equality and second parent adoption. However, many other systematic inequalities, such as potential jury bias, continue to harm the LGBT community as well.

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