30-j Jury Bias

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

30-J. Jury Bias

The Sixth Amendment of the United States Constitution guarantees defendants the right to trial by a fair and impartial jury in all criminal prosecutions.²²³ If you suspect that homophobic or transphobic (prejudice toward LGBT individuals)²²⁴ attitudes among the jurors who delivered the guilty verdict against you prevented them from making an impartial decision, you may have grounds to challenge your conviction.²²⁵

Your right to a fair and impartial jury is supposed to be protected by a process called "voir dire." Voir dire happens before the trial begins. During voir dire, prospective jurors are asked questions so the judge and the lawyers can learn more about them. Usually the judge asks the questions, although in some jurisdictions the lawyers also ask questions, or are allowed to submit questions to the judge. Generally, the lawyers from each side are permitted to "strike," or exclude, jurors based on their answers to the questions. The lawyers have an unlimited opportunity to exclude jurors "for cause," based on a juror's bias (this argument is based on a lawyer's belief and evidence from a juror's answers to questions). The judge's finding is what allows a juror's dismissal for cause (based on a judge's factual findings). The judge, too, has an obligation to exclude any prospective juror he believes may be biased.²²⁶

You might have a claim that your right to trial by an impartial jury was violated if:

(1) The court failed or refused to question jurors during voir dire about their attitudes towards gay or transgender people, and your sexual orientation or gender identity was raised at trial;²²⁷

(2) The court selected a juror even though that juror had indicated that, due to his homophobia or transphobia, he would have trouble being impartial;²²⁸ or

(3) The prosecutor conducting the voir dire excluded all the gay or transgender people from the pool of prospective jurors because they were gay or transgender.²²⁹

A handful of prisoners have challenged their sentences (which means convictions) for alleged anti-gay jury bias, with little success. For example, in Owens v. Hanks, a Seventh Circuit case, a gay prisoner whose sexual orientation was raised during his murder trial petitioned for a writ of habeas corpus, arguing that he was denied an impartial jury because the court chose several jurors who had expressed their bias against gay people during jury selection.²³⁰ The court found that these expressions of juror bias did not make his trial unfair because there was testimony at trial that witnesses for...