Gender in the Jury Box

JAMES J. KILPATRICK

November 17, 1993|By JAMES J. KILPATRICK

WASHINGTON — Washington.--These are the questions on today's pop quiz:

Are women just naturally prejudiced in favor of women? Are men just naturally inclined to side with their fellow men? If so, are men and women so biased sexually that they can't function fairly as members of a jury?

The Supreme Court heard argument on the questions November 2. Technically the case is known as J.E.B. v. T.B., but there's no secret about the parties. This is a proceeding brought by the state of Alabama against James E. Bowman Sr. to determine if he is the father of a boy born to Teresia Bible four years ago. If he is the father, Alabama wants him to pay for the lad's support.

When the case came on for trial in October 1991, the opposing sides had to pick a jury from a final panel of 33 -- 23 women, 10 men. The rules permitted Mr. Bowman to strike 11 members of the panel by peremptory challenges. The state could strike 10.

This is what happened: The state struck one woman and nine of the 10 men. Mr. Bowman struck the last male and 10 females. When the dust settled, the jury consisted of 12 women good and true. They brought in a verdict finding that Mr. Bowman was indeed the father. The court ordered him to pay $415.71 a month in child support.

A great deal is at stake in the Bowman case. The gentleman's paternity, of course, is the least of the high court's concerns. What we are talking about, at bottom, is a defendant's right to a fair trial. When members of an identifiable group are purposefully eliminated from a jury, can a trial be fair?

The Supreme Court first tackled the question in 1880. West Virginia had adopted a law in 1873 limiting jury service to ''white male persons who are 21 years of age.'' In October 1874 a former slave, Taylor Strauder, was tried for murder. His counsel objected that the law violated the recently adopted 14th Amendment with its guarantee of equal protection. The high court agreed. Down went the law.

Nothing much happened until 1965, when Robert Swain, a 19-year-old black man, was tried in Alabama for the rape of a 17-year-old white girl. After the prosecution struck all six black members of a panel, an all-white jury found the defendant guilty. The trial court sentenced him to death.

Speaking for six members of the Supreme Court, Justice Byron White ruled that ''in this case'' there was no evidence to show purposeful discrimination. If a pattern could be established of deliberate exclusion over a period of time, it might be a different matter. Otherwise, the court would not tinker with the historic practice of ''peremptory challenge.''

The practice, as Justice White said, has ''very old credentials.'' A peremptory challenge permits either the prosecution or the defense to strike a prospective juror ''without a reason stated, without inquiry, and without being subject to the court's control.''

The system can be traced in English law to 1305. In the United States it dates from 1790. Justice White found no fault in a procedure that permits either side to strike qualified jurors, ''whether they be Negroes, Catholics, accountants or those with blue eyes.'' He regarded peremptories as ''a necessary part of trial by jury.''

Justice White quoted from an 1806 opinion describing the right of challenge as ''a privilege, highly esteemed and anxiously guarded at the common law.'' He also quoted from a 1919 case describing the challenge as ''one of the most important of the rights secured to the accused.''

So matters stood until James Kirkland Batson, a black man, was tried by an all-white jury for burglary in Kentucky. Speaking through Justice Lewis Powell in 1986, the high court put ancient history to one side. ''Procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.'' This time even Justice White agreed. The time had come, he said, to overrule his own opinion in the case of Robert Swain.

This brings us to this month's oral argument. Should purposeful discrimination by sex be equated with purposeful discrimination by race? If so, should the rule be further extended to the exclusion of jurors by reason of religion, occupation or national origin?

The late Justice Thurgood Marshall urged in the Batson case that peremptory challenges be banned entirely. No other justice joined him in that recommendation, but with the case of Mr. Bowman's baby boy, an old institution plainly is in peril.

James J. Kilpatrick is a syndicated columnist.

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