Thursday, November 4, 2010

Criminal defendants cannot kick women off the jury

The trial in Connecticut involved a man accused of sex trafficking. Through peremptory challenges, his lawyer wanted to excuse women from the jury "because he believed that, in light of the nature of the charges, men would be 'fairer' to [defendant] Paris than women." The district court said the Constitution prohibits this. The Second Circuit agrees with the district court.

The case is United States v. Paris, decided on September 17. Like many criminal cases, the facts leading up to the arrest are ugly. The Court of Appeals says, "From at least 1999 until his arrest in 2004, Paris forced or induced teenage girls and young women to engage in sex with men for money. Paris operated his prostitution business in and around Hartford, and recruited his victims to work for him as prostitutes from around Hartford and as far away as New Hampshire." The guilty verdict and lengthy sentence prompted this appeal.

The appeal arising from the presence of female jurors fails. Give the defense lawyer credit. He did not hide his strategy, telling the trial court at the start of jury selection that he wanted a male jury. He said:

[W]omen feel about this case very, very, very differently from men. And ... probably the major factor in how a juror will approach this case is her gender. And having reached that conclusion, I intend to make gender one of the primary -- one of my primary reasons for striking jurors .... I would doubt that I will exercise a peremptory against a male juror. My objective here is to get as many male jurors on the jury as I can, because I think that they will be fairer to Mr. Paris than female jurors will be.

The Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), said that blacks cannot be kept off juries in civil cases. Batson was later extended to criminal case. The Supreme Court after then then said that women cannot be kept off civil juries. The open question in the Second Circuit is whether Batson means that women cannot be kept off criminal juries. The Court of Appeals (Jacobs, Wesley and Chin) says No.

Paris's argument is not as off-the-wall as you might think. Justice O'Connor, the first woman on the Supreme Court, wrote a concurrence in 1994 that said that only the government (and not the defendant) should be prevented from making gender-based jury strikes, reasoning:

We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. ... Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case.

That language from Justice O'Conner was not majority language, though. It does not bind the Second Circuit, which rejects Paris's argument and says "discriminatory jury selection harms not just the parties to the case but also the prospective jurors as well as 'the entire community' as it 'undermine[s] public confidence in the fairness of our system of justice.' There is no principled basis for distinguishing between civil and criminal cases for these purposes, or between the exercise of a peremptory strike by the government and a defendant."

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