During the process of selecting a jury for trial, after jurors (if any) are struck for cause such as bias towards one of the parties, the lawyers then use what are called “peremptory” challenges. That is, at least traditionally, the lawyer can strike a certain number of jurors for any reason known only to that attorney. The courts have over the years extended constitutional protection to the process of excluding jurors, as illustrated by a case last week in Maryland’s intermediate appellate court, Andre Jerome Elliott v. State.
According to the opinion, the evidence at trial showed that the victim was stabbed by her estranged husband 14 times in her home and left for dead. She had previously separated from him and gotten a protective order, but two days later he entered her home and attacked her. She was able to call 911, and when the police came identified her husband as the attacker. There was other physical evidence introduced of his guilt.
A jury convicted the defendant of attempted second degree murder and other crimes, and he was eventually sentenced to 50 years in prison. He then appealed, raising among other issues the way in which the jury (which included at least 7 men) was selected. Specifically, during the jury selection process the defense attorney objected twice that the prosecutor was striking mostly men from the final panel of 23 men and 25 women available. In all, the State used 8 of 9 of its challenges on male jurors.
When the defense attorney objected to this, the prosecutor pointed out that the defense lawyer had struck mostly women, though the State had not objected. The prosecutor then admitted that that State “felt the need to balance out” the gender of the jury, and if it had struck mostly men had done so “because we wanted a balanced jury.”
The appellate court reviewed whether this admitted practice violated constitutional law which began with the 1986 Supreme Court opinion in Batson v. Kentucky. In that case the court ruled that the Equal Protection clause of the constitution made it improper to strike potential jurors solely on the basis of race. This ruling was later extended in Maryland (and adopted after that by the Supreme Court) to the use of gender as the sole reason to challenge seating a juror.
The procedure by which this is determined is that one side first must present a case on its face of purposeful discrimination, in a criminal case by counting the number of jurors who belong to a particular group that are challenged. If such a case is made, the burden shifts to the other attorney to give a neutral explanation, overall, for the jury challenges. If that attorney does so, her opponent may still try to convince the trial judge that those reasons are a pretext for improper use of race or sex in jury selection.
The appellate court had no trouble in finding that the State had violated the Batson rule, since it admitted use of gender in its strikes of jurors. Even if its goal of a “balanced” jury was true, the State could still not used gender alone as a reason to exclude jurors. The court said the only remedy was a new trial. This illustrates how seriously the courts take constitutional protections in jury selection.