Masking of Bias a Risk In Jury Selection Now

Lawyers analyze result of Supreme Court's bar of sex discrimination

THE Supreme Court's decision this week that bars sex discrimination in jury selection will not affect their trial strategies, many courtroom lawyers say.

But the ruling will impose an additional burden on lawyers to justify even legitimate challenges to prospective jurors, lawyers say, and they suspect that some attorneys or their clients will simply mask bias in jury selection behind other rationales.

The high court ruled Tuesday that, under the Constitution's equal-protection guarantee, trial lawyers may not exercise ``peremptory'' - automatic - challenges to reject prospective jurors solely on account of gender. In most jurisdictions, lawyers for each side in a case may excuse a designated number of juror candidates without explanation, just because instinct or research suggests that certain people will not look favorably, or at least impartially, on a lawyer's position.

(In addition, lawyers usually may exercise an unlimited number of challenges ``for cause,'' based on concrete evidence that potential jurors may be biased.)

The ruling is consistent with a line of cases dating back to 1986 in which the Supreme Court held that it is unconstitutional to reject jurors because of race.

Many women's groups are praising the decision as an advance toward sexual equality. Ironically, the ruling came in a case where Alabama state lawyers for a mother in a paternity and child-support lawsuit excluded men from the jury, fearing that men would sympathize with the male defendant, who denied that he was the father of the woman's child.

Case to be retried

After losing in the trial before an all-female jury, the defendant challenged the use of peremptory challenges to eliminate men from the panel, and the Supreme Court sustained his appeal. The case will be retried before a new jury selected without regard to gender.

Will the ruling affect lawyers' jury-selection strategy - especially in trials involving gender issues such as sex discrimination, sexual harassment, rape, or cases in which battered women are accused of violence against their abusive partners?

No, according to trial lawyers interviewed for this article.

``In our firm, it has never been a policy to exclude men or to try to get an all-women jury in sex-discrimination or sexual-harassment cases,'' says Margaret Harris, an employment lawyer in Houston who has represented women in such trials. ``It all depends on the individual juror.Women often misunderstand sexual harassment as much as men do.''

``Sometimes it's easier for a woman juror to understand the victim's situation [in a sex-discrimination or harassment case], but that's not always true,'' says Patricia Shiu, a lawyer with the Employment Law Center in San Francisco. In selecting jurors in such cases, Ms. Shiu says, ``gender may be a factor in a lawyer's thinking, but it's actually a much more complex process of trying to get inside the head of a prospective juror and figure out how he or she will look at the case.''

In writing the high court's opinion, Justice Harry Blackmun wrote that Alabama state lawyers seemed ``to assume that gross generalizations that would be deemed impermissible if made on the basis of race are somehow permissible when made on the basis of gender.... African-Americans and women share a history of total exclusion.''

Although she sided with the majority in Tuesday's decision, Justice Sandra Day O'Connor expressed concern about the ruling's effect on cases in which a battered woman is accused of killing or injuring her abuser. ``Will we preclude her from using her peremptory challenges to insure that the jury of her peers contains as many women members as possible? ... I hope we will not,'' Justice O'Connor wrote.

But Cristina Gutierrez, a criminal-defense lawyer in Baltimore, says: ``I've tried many battered-women-syndrome cases, and I wouldn't want to have only women on the jury. But I also don't want the prosecutor to be able to remove all the women from the jury.'

Some problems

Like the other lawyers interviewed, Ms. Gutierrez said she supports the high court's ruling. She foresees difficulties in its application, however. More frequently, she predicts, lawyers will be challenged by their opponents to prove that their exercise of a peremptory challenge was not based on sex discrimination.

Gutierrez worries that in such hearings, defense lawyers may be forced to reveal trial strategy and tactics. She also suspects that some lawyers may engage in subterfuge to conceal bias in the use of peremptory challenges.

Some experts anticipate that the Supreme Court's decision marks the beginning of the end for peremptory challenges altogether. ``Given the latitude with which judges will accept challenges for cause, there's really no need for peremptory challenges, which generally are irrational,'' says Rod Smolla, a constitutional-law scholar at William and Mary Law School in Williamsburg, Va.

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