New York Law School

Art Leonard Observations

Posts Tagged ‘jury selection’

Appellate Courts Rule on Discrimination Against Gay Jurors

Posted on: May 7th, 2018 by Art Leonard No Comments

 

On May 3, two appellate courts issued rulings on appeals of criminal convictions in which gay men in the jury pool were dismissed on “peremptory challenges” by the prosecuting attorneys.  The California 3rd District Court of Appeal decided that the defendant in People v. Douglas, 2018 Cal. App. LEXIS 403, a gay man, is entitled to a new trial.  The Nevada Supreme Court ruled in Morgan v. State, 2018 Nev. LEXIS 31, 134 Nev. Adv. Rep. 27, against the defendant’s appeal.  While both courts agree that striking jurors from a panel just because they are gay violates the constitution, they adopted different approaches to the issue.

Brady Dee Douglas’s former boyfriend, described in the opinion for the California court by Justice Elena J. Duarte as “a male prostitute,” told Douglas that a man, identified in the opinion as Jeffrey B., had “shorted him money following a prearranged sexual encounter.  Douglas and another man “tracked down Jeffrey and demanded payment,” but Jeffrey fled.  The men gave chase.  “During a high-speed freeway chase, [Douglas] pointed a gun at Jeffrey and shot at his car several times.”  The court does not mention how Douglas and his confederate came to be arrested.

Douglas was prosecuted on multiple charges and convicted by the jury.  The trial judge sentenced him to six years in prison.  Appealing his conviction, he objected that the trial judge allowed the prosecutor to strike the only two openly gay men in the juror pool using peremptory challenges.  During the jury selection process, parties can move to strike potential jurors “for cause” by convincing the judge that the juror could not fairly decide the case.  In California, each party is allowed to excuse a certain number of jurors without providing any explanation – called a peremptory challenge – but the other party can object if it appears that the challenger is engaging in unconstitutional discrimination based on the juror’s race, sex or sexual orientation.

Douglas’s lawyer objected to the peremptory challenges to the gay jurors.  The trial judge asked why they were being challenged. The prosecutor said he challenged one man because he had a close friendship with a public defender (a lawyer employed in defending indigent people charged with crimes) who had told the juror that she considered prosecutors to be on “the dark side.”  The other man was challenged based on his demeanor during voir dire, the prosecutor noting that the man leaned forward and seemed attentive when defense lawyers were speaking but leaned back and gave short and non-descriptive answers when the prosecutor was speaking.

Then the prosecutor added, as to both of them, “In addition, in a case in which the victim in the case is in a relationship and is not in a relationship with a female but is not out of the closet and actually was untruthful with the police about the extent of his relationship with a male prostitute, I think that that particular person’s testimony may be viewed with bias by those who are willing to be openly gay and not – not lie about it and can be frank about it, and he would view that as a negative character trait, and an individual who attempts to maintain given whatever grave idea, sexuality he has, but is willing to lie about it.  So I think there is a number of reasons, both specific to the case that are sexuality neutral, not – I’m not asserting in any way that is an adequate basis for a Wheeler motion, but even given that I think there are bases not only in their reaction in court to answering questions, but also given the specific facts of this case.”  The quote above is from the transcript made during jury selection, which suggests the prosecutor is verbally challenged or the court reporter had trouble keeping up with the statement.  A Wheeler motion relates to a California Supreme Court opinion, People v. Wheeler, 22 Cal. 3d 258 (1978), concerning objections to peremptory challenges.  Clearly, the prosecutor assumed that openly gay men would be biased against a closeted gay witness (Jeffrey B.) who patronized escorts.

The defense attorney responded that “under that justification, anyone who is openly gay” would automatically be challenged, and the lawyers for both defendants formally objected.  The trial court denied the defense’s objection to the peremptory challenges, and excused the two gay men from the jury pool, after finding that the prosecutor’s objections to the two gay men were non-discriminatory justifications.  “In effect,” wrote Justice Duarte, “that was the rough equivalent to applying a mixed-motive analysis to the challenges,” although not entirely so because that trial judge had questioned “in passing whether a Wheeler motion based on sexuality discrimination was appropriate.”

In a prior ruling on Douglas’s appeal, this panel of the Court of Appeal sent the case back to the trial court, confirming that a Wheeler motion based on sexuality discrimination is appropriate, and directing the trial judge to reconsider whether these jurors should have been dismissed.  If not, a new trial would be needed. But Douglas petitioned for a reconsideration by the Court of Appeal, arguing that a mixed-motive analysis is inappropriate on a Wheeler motion, and that the verdict should be vacated and a new trial ordered because it was clear that the prosecutor challenged the jurors because they are openly gay.

The Court of Appeal agreed to reconsider its ruling, and amicus briefs were submitted by Equality California, Lambda Legal, and National Center for Lesbians Rights, and the Los Angeles County Public Defender’s Office.

In a rare move, the three-judge panel changed its mind and decided, by a vote of 2-1, that a mixed-motive analysis is improper in such a situation, so the conviction must be vacated.

Justice Duarte summarized the decision simply: “This case is about fairness and equality in our criminal justice system.  When a party exercises a peremptory challenge against a prospective juror for an invidious reason, the fact that the party may also have had one or more legitimate reasons for challenging that juror does not eliminate the taint to the process.  We reject the application in these circumstances of the so-called “mixed motive” or “dual motive” analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision.  We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”

In this case, the prosecutor assumed that openly gay men as jurors would be biased against the victim, a closeted man who hired escorts, when the defendant was an openly gay man.  By this thinking, any openly gay man, even if he swore during voir dire that he could be unbiased, would be presumed to be biased and excused from the jury.  This is exactly the kind of thinking that the U.S. Supreme Court was combatting in the leading case of Batson v. Kentucky, 476 U.S. 79 (1986), where it condemned the practice of prosecutors using peremptory challenges to keep African-Americans off juries in cases involving African-American parties.  This issue isn’t just one of fairness as between the parties, but also fairness to the potential jurors. The Supreme Court observed that people called to jury duty should not suffer discrimination based on bias and stereotypes about them.  Citizens have an equal right to serve on juries, regardless of their race or, as the California courts have held, their sexual orientation.

Associate Justice Harry Hull, Jr., argued in his dissenting opinion that the mixed-motive analysis was the correct one, that the defendant was tried “before an impartial judge and found guilty beyond a reasonable doubt by an unbiased jury while represented by competent counsel.”  He objected to the idea of vacating this verdict where, according to him, “the record is devoid of any evidence showing the non-neutral reason was determinative in striking the prospective jurors or that the two facially valid reasons were unsupportable.

Of course, vacating the verdict is not the end of the case, since the prosecutor can retry the defendant.

In the Nevada case, a criminal prosecution in which the defendant was African-American, sexual orientation was not really an issue.  However, the defense objected to the prosecution’s use of a peremptory challenge that kept a gay man off the jury after he had expressed approval of media criticism of the police in their dealings with African-Americans.  The prosecution relied on this comment to justify its peremptory challenge, but the defense argued that heterosexual jurors who expressed similar views had not been excused from the panel.

The Nevada Supreme Court ruled that the trial judge had correctly overruled the defendant’s challenge to the removal of the gay juror.  However, before stating that conclusion Chief Justice Michael Douglas wrote for the court, “Before addressing Morgan’s contention that the district court erred in  overruling his Batson challenge based on sexual orientation, we take this opportunity to first address whether sexual orientation should be recognized under Batson – a novel issue before this court.  In answering in the affirmative, we align this court with the Ninth Circuit.”

The reference is to the U.S. Court of Appeals for the 9th Circuit, which ruled in a 2014 case that as a result of the U.S. Supreme Court’s ruling striking down the Defense of Marriage Act in 2013, it appeared to the 9th Circuit judges that the Supreme Court was treating sexual orientation discrimination as meriting “heightened scrutiny” in equal protection cases.  This is, in fact, the test for whether a party can challenge discrimination in the jury selection process.  If it appears that a party is trying to eliminate jurors due to a characteristic that gets heightened scrutiny in a constitutional discrimination case, the other party can bring a Batson challenge, and the reasons for striking the juror become a subject of inquiry for the court.

The Nevada Supreme Court found the 9th Circuit’s reasoning persuasive, particularly noting that this was not just a question of fairness for the litigants but also for prospective jurors, quoting the 9th Circuit opinion, which stated that “strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rights and rituals.” Such strikes “deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

Turning to the peremptory challenge in this case, the court held that the trial judge was correct to allow it over the defense’s objection.  As in the Douglas case, there were two jurors in the pool for Morgan’s case who revealed by their answers during voir dire that they were gay.  But the prosecutor challenged only one of them, and the prosecutor did not bring a peremptory challenge to the other gay juror.  “Accordingly, there is no pattern of strikes against gay members, and no disparate treatment of gay members,” wrote Chief Justice Douglas.  Furthermore, he noted, “the nature of Morgan’s criminal case did not involve an issue sensitive to the gay community.  Therefore, because we are not convinced that the totality of the circumstances gave rise to an inference of discrimination, Morgan failed to make out a prima facie case of discrimination.”  The prosecutor had also given an explanation having nothing to do with the juror’s sexual orientation, the juror’s approval of media criticism of the police, and the court found this a satisfactory reason, noting that some heterosexual jurors may have voiced criticisms, but they were not as strongly stated as by the gay potential juror.

It is possible that the California Court of Appeals would have agreed with the Nevada Supreme Court’s handling of the case, since the Nevada ruling did not embraced a mixed-motive analysis, but instead concluded that there was no basis to infer that the challenged juror’s sexual orientation had anything to do with the prosecution’s decision to keep him off the jury.

Gay Man Wins New Trial of His Claims Against Key West Police

Posted on: October 9th, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Atlanta-based 11th Circuit Court of Appeals ruled on October 5 that Raymond Berthiaume is entitled to a new trial of his claims against the City of Key West and Police Officer David Smith stemming from Berthiaume’s arrest by Smith early on October 27, 2013. A jury ruled against Berthiaume at the first trial, after the judge had refused Berthiaume’s request that potential jurors be questioned about any anti-gay bias.  Berthiaume v. Smith, 2017 WL 4422465, 2017 U.S. App. LEXIS 19403 (note: the case will be published in Fed. Appx., not Fed. 3rd).

The court summarized the evidence introduced at trial:

Berthiaume was in Key West to attend the Fantasy Fest Parade on October 26 together with his then-partner and now-husband, Jhon Villa, his friend Corey Smith, and his former partner, Nelson Jimenez. After the parade, the group remained in the area for a street party.  By the early morning hours, all but Jimenez were ready to go home.  Jimenez remained in a bar while the others returned to their car, parked on a side street.

After waiting by the car for some time, Berthiaume went back to the bar to get Jimenez so they could finally go home. He led Jimenez out of the bar with his hand on Jimenez’s upper arm.  Jimenez grabbed the car keys and twisted out of Berthiaume’s grasp, running down an alleyway with Berthiaume in pursuit.

The two men were spotted by Lieutenant Smith and several other police officers, who thought they were seeing a fight between the two men and gave pursuit. Smith testified that Berthiaume appeared to be swatting and grabbing at Jimenez with both hands as Jimenez tried to pull away, but another officer who testified said that the only physical contact he saw was Berthiaume’s grasping of Jimenez’s upper arm as he attempted to bring Jimenez back to the car.  Testimony differed as to whether Berthiaume was running or walking after Jimenez.

When Smith caught up with Berthiaume, he pushed him in the shoulder to stop him from pursuing Jimenez. Berthiaume fell to the ground, suffering a fractured wrist and jaw (both of which ultimately required surgery).  Smith spoke to Jimenez, who thanked him for intervening but stated that nothing wrong had happened and he did not want to press charges against Berthiaume.  He also told Smith that the men were former partners and were trying to get back together.  Smith arrested Berthiaume anyway, based on his belief that this was a domestic dispute and that the standard practice of Key West police was to arrest a suspected domestic abuse assailant to assure separation of the parties for at least one night.

Smith also testified that it was appropriate for him to make the arrest despite Jimenez’s refusal to press charges, because Smith had seen (or so he believed) Berthiaume assaulting Jimenez. After investigating the situation, the local prosecutor decided to drop the charges against Berthiaume, who then filed suit against Smith and the City of Key West.

Berthiaume filed his lawsuit in the U.S. District Court, claiming violations of federal civil rights laws and Florida tort law, alleging claims of excessive force, false arrest, false imprisonment, battery/unnecessary force, and malicious prosecution. There was a three-day jury trial.

During jury selection, the judge questioned jurors about possible bias they might have against the police, but declined Berthiaume’s request that the jury be questioned about any possible bias they might have against gay people.   After the jury returned a defense verdict, Berthiaume moved for a new trial, arguing that he was deprived of a fair trial before an impartial jury.  He argued that gay people had only recently begun to gain acceptance in society, and many people still are biased or prejudiced against gay people.  Thus, he argued, in a case such as this, involving both a gay plaintiff and gay witnesses, it was necessary for the court to inquire into prospective jurors’ potential anti-gay bias before empaneling the jury.  The trial judge denied the motion, and Berthiaume appealed.

The appeals court pointed to Rosales-Lopez v. U.S., 451 U.S. 182, a 1981 Supreme Court decision, holding that under “special circumstances” the Constitution might require judges to ask questions about racial bias during jury selection in cases where racial issues are “inextricably bound up with the conduct of the trial” and there were “substantial indications” that the jurors might be affected by racial prejudice. In that criminal case, the Supreme Court said that the failure to ask such questions would lead to reversal of the conviction if the circumstances of the case indicated a reasonable possibility that racial prejudice might have influenced the jury.

Building on this precedent, the 11th Circuit had ruled in an unpublished decision in 2014, U.S. v. Bates, 590 F. App’x 882, that failure to inquire into anti-gay bias could also be grounds for reversing a criminal conviction. A gay man had been charged with possession of child pornography.  Police investigators examining his computer also found evidence that the defendant sought gay men for sex on the internet, including photos of him engaged in sex with other men.  The trial judge refused to question the jurors about anti-gay bias or to exclude the evidence, asserting that it was relevant to the charges against the defendant.  The man was convicted, after the prosecution “repeatedly paraded before the jury” the evidence regarding the defendant’s sexual activities with other men.  The 11th Circuit decided in that case that it was reasonably possible that anti-gay bias had affected the verdict and ordered a new trial.

“Here,” as in the earlier case, wrote the court, “Berthiaume’s sexual orientation and that of his witnesses became ‘inextricably bound up with the issues to be resolved at trial.’ In describing the events leading up to Berthiaume’s arrest, the witnesses repeatedly testified about Berthiaume’s romantic relationships with Jimenez and Villa.  Indeed, in explaining why he felt it necessary to arrest Berthiaume despite Jimenez’s refusal to press charges,” continued the court, “Lieutenant Smith explained that victims are often reluctant to press charges in ‘domestic situations’ such as these because they have mixed emotions about the perpetrator.”

Although the trial judge did pose general questions about bias to the jury, none of them were specific enough to determine whether any of the jurors might harbor prejudices against a gay man based on his sexual relationships. While the judge asked if the jurors could be impartial, the appeals court thought this was “not calculated to reveal latent prejudice.”  Thus, the court concluded, the district court “abused its discretion by failing to inquire about prejudice on the basis of sexual orientation during voir dire.”  Since the Defendants had not shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” wrote the court, “Berthiaume is entitled to reversal.”

Since the jury was not informed during voir dire that the plaintiff and many of the witnesses were gay, they would have no reason to volunteer any information about anti-gay bias in response to the trial judge’s general questions. In this case, said the court, “the risk that latent, undiscovered prejudices may have influenced the jury’s verdict is substantial.”

Although the 11th Circuit, which covers the states of Alabama, Georgia and Florida, had long been seen as a conservative circuit, it experienced a drastic turnaround during the last administration, as President Obama was successful in appointing and getting confirmed five judges. Of the twelve active judges on the court, all but four were appointed by Democratic presidents.  The panel that decided this case included two Clinton appointees (one a senior judge from the 6th Circuit filling out the panel) and one Obama appointee.  Thus far, Donald Trump has appointed one judge to the 11th Circuit who has been confirmed, joining appointees of Presidents Ford, George H.W. Bush, and George W. Bush.

11th Circuit Vacates Child Porn Conviction Finding Jury Might Have Been Biased

Posted on: October 30th, 2014 by Art Leonard No Comments

An 11th Circuit U.S. Court of Appeals panel voted 2-1 in United States v. Bates, 2014 WL 5421846, 2014 U.S. App. LEXIS 20564 (Oct. 27, 2014), to vacate the child pornography conviction of Cameron Dean Bates, who had been convicted by a Southern District of Florida jury and sentenced to 240 months in federal prison for receiving, accessing, distributing, and possessing child pornography.  The majority of the panel concluded that the trial judge erred by denying Bates’ request that potential jurors be questioned about their attitudes concerning homosexuality, and that this was not harmless error in light of the evidence the government proposed to introduce in the case.  Dissenting Judge Robert L. Hinkle, a district court judge from a different district in Florida, contended that the error was harmless because of the overwhelming evidence against Bates, but the majority clearly thought this wasn’t the point; that a criminal defendant is entitled to a fair trial before an impartial jury.

The opinion for the court by Judge Beverly Baldwin Martin does not say how the government got wind of Bates’s activities, but investigators enlisted Bates’s internet service providers to help them trace downloads of child porn to his computer, then obtained a search warrant and did a forensic investigation that yielded not only evidence concerning child pornography but also evidence of Bates’s homosexual activities with other adults and occasional cross-dressing, which the government intended to introduce at trial (and did, over Bates’s objections) in countering Bates’s argument that somebody else was using his laptop to access child porn. Bates sought voir dire about the jurors’ attitudes towards homosexuality, but the obtuse district judge said that he could not see how that had anything to do with the case, and refused the request, just as he overruled Bates’s motions to exclude the evidence going to his homosexual activities.

“In this case,” wrote Martin, “the District Court optimistically declared that our society is beyond prejudice on the basis of a person’s sexual orientation. While we admire the District Court’s optimism, it remains the case that ‘there will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive’ [citing numerous cases].  We have no doubt that evidence of Mr. Bates’s sexual activity and gender non-conforming conduct had the potential to unfairly prejudice jurors.”

As to the District Court’s puzzlement about how this had anything to do with the case, the court of appeals majority found that Bates’s sexual activities “became ‘inextricably bound up’ with the issues to be resolved at trial. This fact should have been obvious to the District Court given its ruling before voir dire that it did not intend to exclude the sexually explicit images of Mr. Bates found on his computer.  And if it wasn’t obvious to the District Court before jury selection began, it should have become obvious when Mr. Bates requested the Court to explore the potential prejudice before striking jurors.  When the District Court expressed confusion about what homosexuality ‘has to do with this case,’ the government explained that it intended to introduce ‘pictures and items from the defendant’s computer to show that he was engaged in homosexual activity. . . which goes to show that he wouldn’t be sharing his computer with other people.”

The court held that the government failed in its burden to prove harmless error. “Because the District Court refused to ask any questions at all about prejudice on the basis of sexual preferences, we have no way to discern whether the jury was biased against Mr. Bates for that reason,” wrote Judge Martin.  “Because the jurors had no reason to know that issues about same-sex sexual practices would be part of the evidence at trial, they had no reason to offer up prejudices they might harbor on that basis when the District Court posed its general questions.”  The court also expressed lack of confidence that the trial judge’s limiting instructions to the jurors cautioning them about the use of the evidence would have adequately cured the “constitutional deficiencies in this voir dire process.”

“In light of the quantity and the explicit content of the evidence about Mr. Bates’s sexuality paraded before the jury,” wrote Martin, “the risk that latent, undiscovered prejudices may have inflamed is great. Indeed, it seems that the government expected the evidence to have exactly that effect at the time it was introduced.  After asking one of Mr. Bates’s family members whether she knew about his same-sex sexual activities and gender non-conforming behavior, the government followed up with this telling question: ‘And would that have affected your opinion of him?’  We can think of no reason to ask this question but to suggest that, perhaps, it should.”

“If Mr. Bates is to be convicted,” Martin continued, “we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high.  His convictions must therefore be vacated, and we remand this case for further proceedings.”  The court also commented that the trial court may have given Bates inadequate time prior to his trial to prepare his defense, as the government added new charges shortly before trial, and concluded, “we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.”

Judge Hinkle’s harmless error dissent ended on a defensive note. “One is left asking why, if the evidence of guilt was as clear as I believe it was, the government asked improper, prejudicial questions?  A possible inference is that the government thought a conviction was not certain.  A possible inference is that the government thought at least some jurors were biased and that appealing to that bias would help bring about a conviction.  Why else would the government do it?  I am left in the uncomfortable position of concluding the government was wrong – that it didn’t need the prejudicial impact it improperly pursued.  It is with no enthusiasm that I dissent.”