Out of the 28-member jury pool in jury selection this week was a large contingent of WILDS (white, impressive, Latter-Day Saints), including a well-spoken, slightly heavy-set, attractive, single-female temple-grounds gardener. Also, among the jury pool sat two gay individuals who acknowledged (without pause or diffidence) their gay partners when asked to indicate their spouse’s occupation.
This openness by the LGBT community rarely happened just a few years ago. In my opinion, this is a welcome societal shift because it shows progress in bringing these members of our community within the circle of our humanity, culture, and communion. It also engenders honesty, and thereby conveys important information.
However, this openness has adverse consequences in jury selections. This is because we do not select a jury of our peers; we winnow the pool by the process of elimination – first, by challenges for cause, and then by each attorney – for any unspoken reasons – eliminating three persons. The remaining first eight are seated. When a party or an important witness to the litigation is a minority, this invariably eliminates any member of his or her class and saturates the sometimes collective bias of the majority.
In my particular case, a gay man was our key witness. The opposing side knew this. We needed a juror who could relate to the peculiar challenges that such a person sometimes faces in our society. Who do you think was peremptorily eliminated from the jury pool by the opposing counsel? If you guessed the temple grounds gardener, you are wrong. It was the lesbian. (The other gay man was too far down the lineup to be selected.)
This is not a diatribe against WILDS or WASPS. It is also not a claim that one member of a minority is invariably lenient or apt to give his or her minority a pass or an unfair advantage. They don’t. They sometimes are more harsh. What I do believe is that we in the majority sometimes are insensitive, ignorant, and even, at times, unfairly biased against minorities. When you are in the minority and know this to be true, you would take great comfort in having a peer or two on your jury sitting in judgment.
Unfortunately, the consequence of jury winnowing is that we don’t get a jury of our peers; we get a jury that is estranged from the issues, experiences, and needs of minority litigants. For instance, imagine being a WILDS in the early 1800s and having a jury trial in the Missouri capitol and having your jury selected from a pool of mainly non-Mormons: Would you want to have at least one member of your faith on the jury?
We should fix our jury system to be sensitive to this issue by retaining challenges for cause and then allowing each attorney to select, rather then eliminate, persons to serve on the jury (half the jury selected by each side). This would, truly, be a jury of our peers.
Loren M. Lambert © June 13, 2014
This openness by the LGBT community rarely happened just a few years ago. In my opinion, this is a welcome societal shift because it shows progress in bringing these members of our community within the circle of our humanity, culture, and communion. It also engenders honesty, and thereby conveys important information.
However, this openness has adverse consequences in jury selections. This is because we do not select a jury of our peers; we winnow the pool by the process of elimination – first, by challenges for cause, and then by each attorney – for any unspoken reasons – eliminating three persons. The remaining first eight are seated. When a party or an important witness to the litigation is a minority, this invariably eliminates any member of his or her class and saturates the sometimes collective bias of the majority.
In my particular case, a gay man was our key witness. The opposing side knew this. We needed a juror who could relate to the peculiar challenges that such a person sometimes faces in our society. Who do you think was peremptorily eliminated from the jury pool by the opposing counsel? If you guessed the temple grounds gardener, you are wrong. It was the lesbian. (The other gay man was too far down the lineup to be selected.)
This is not a diatribe against WILDS or WASPS. It is also not a claim that one member of a minority is invariably lenient or apt to give his or her minority a pass or an unfair advantage. They don’t. They sometimes are more harsh. What I do believe is that we in the majority sometimes are insensitive, ignorant, and even, at times, unfairly biased against minorities. When you are in the minority and know this to be true, you would take great comfort in having a peer or two on your jury sitting in judgment.
Unfortunately, the consequence of jury winnowing is that we don’t get a jury of our peers; we get a jury that is estranged from the issues, experiences, and needs of minority litigants. For instance, imagine being a WILDS in the early 1800s and having a jury trial in the Missouri capitol and having your jury selected from a pool of mainly non-Mormons: Would you want to have at least one member of your faith on the jury?
We should fix our jury system to be sensitive to this issue by retaining challenges for cause and then allowing each attorney to select, rather then eliminate, persons to serve on the jury (half the jury selected by each side). This would, truly, be a jury of our peers.
Loren M. Lambert © June 13, 2014
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