Jury of Our Peers
Contrary to popular belief, the Constitution does not give citizens the right to a trial by a jury of one’s peers. The Sixth Amendment only guarantees a trial by an impartial jury. However, the idea that we should be judged by people like us–by our peers–has been strongly ingrained into the minds of most Americans. Indeed, the jury is often used as a measurement to determine who we are as a country.
In criminal cases covered by the media, the makeup of the jury is closely analyzed and criticized. The George Zimmerman trial, for example, featured an all female jury–but no African Americans. This fueled feelings that Trayvon Martin was deprived of justice. Although it is folly to believe an African American would have automatically found Zimmerman guilty, having someone “like” the victim on the jury would have given the impression that the jury was more representative of the population. A jury of one’s peers gives legitimacy to jury verdicts.
There is no law which requires racial diversity on a jury. In fact, a portion of the jury system functions much like the nation’s employment system: a candidate can be released from service for any reason as long as it is not an illegal reason. Attorneys who help pick jurors, like employers, are not obligated to give good reasons to let someone go. Indeed, the standard for jury selection is so low that the reason for striking a person from a jury does not even have to be persuasive. For example, a person has been discharged from jury selection because a lawyer did not like his beard.
Diversity is not a jury requirement, but there are rules regarding jury makeup. Race and gender, for instance, cannot be a reason for dismissing a person from jury service. Race and gender were singled out for legal protection because race and gender had historically been used to keep groups of people out of society entirely. Excluding people from jury duty on the basis of race or gender was merely one more way to ignore these groups of people. The rules regarding race or gender discrimination in jury selection was part of a larger effort to correct past injustice. People with beards have not been historically targeted for persecution (if they were, it was because of religion, and not the fact they wore beards).A recent anti-trust appeal in Oakland, California, will test whether sexual orientation can be added to this short list of exceptions.
Extending Court Discrimination Rules
GlaxoSmithKline v. Abbott Laboratories does not appear to be a remarkable case at first glance. The defendant, Abbott Laboratories, was accused by GlaxoSmithKline of illegally raising the price of Norvir, an AIDS drug, to drive out the competition. During jury selection, Abbott wished to kick out a possible juror, while Glaxo wanted to keep him on the basis that the juror “is or appears to be, could be, homosexual.” The juror’s sexual orientation was important, Glaxo’s attorney claimed, because gay men have an interest in AIDS medication. The juror was ultimately released because of his sexual orientation. Glaxo “won” the case and a $3.4 million damage award.
Both parties appealed. Glaxo felt that the damage award was too small, while Abbott wanted the verdict thrown out completely. A major point of contention on appeal is whether Abbott’s attorney made a mistake by claiming that sexual orientation was a valid reason to throw out a juror. The attorney could have given any number of other reasons for wanting the man off the jury, but he gave the most controversial reason.
State courts in California have long held that excluding homosexuals from juries based on their sexual orientation is unacceptable. Most state judges would accept that homosexuals have been historically persecuted because of their sexual preferences, just as African Americans have been discriminated against because of their race. On the other hand, sexual preference is not a topic that lawyers should pursue when interviewing possible jurors.
Federal courts in the Ninth Circuit, however, have not given a definite answer on the issue. Most legal experts will observe that forbidding sexual orientation discrimination will only be symbolic, since lawyers can give other (legal) reasons if they really want a homosexual to stay off a jury.
Although it is true that making sexual orientation discrimination illegal in jury selection would only be symbolic, symbolism counts for a lot in our political system. The Zimmerman case is an example of how our juries reflect on our society. The political fallout from that case lends credence to how a diverse jury can increase legitimacy in the jury’s verdict. By including homosexuality in the list of illegitimate reasons to dismiss a jury member, the law would possibly move a little closer to providing an ideal jury–a jury of our peers.