CONSTITUTIONAL LAW - SEXUAL ORIENTATION RECOGNIZED AS PROTECTED CLASS FOR BATSON CHALLENGES - COMMONWEALTH V. CARTER, 172 N.E.3D 367 (MASS. 2021).

• Author: Luciano, Ian

Peremptory strikes allow an attorney to dismiss a potential juror during jury selection without providing any justification. (1) However, in Batson v. Kentucky, the Supreme Court of the United States created a three-prong test to ensure that attorneys do not strike potential jurors from the venire for impermissibly discriminatory purposes. (2) An opposing party may raise a Batson challenge to have the court determine whether a potential juror was struck solely on the basis of their affinity with a protected class, thereby constituting an equal protection violation against that juror and a violation of a defendant's right to an impartial jury. (3) In Commonwealth v. Carter, (4) the Massachusetts Supreme Judicial Court ("SJC") addressed the question of whether such constitutional limits apply when a potential juror is peremptorily struck on the basis of their sexual orientation. (5) The SJC held that a peremptory strike based on a prospective juror's sexual orientation violates the Equal Protection Clause of the Fourteenth Amendment and Articles 1 and 12 of the Massachusetts Declaration of Rights. (6)

Daniel Pinckney and Antwan Carter (hereinafter collectively referred to as "Carter") were indicted for murder in the first degree and possession of a firearm without a license after a victim was shot eight times in a convenience store parking lot in February 2007. (7) Two jury trials were conducted and both resulted in mistrials due to deadlocked juries. (8) Prior to a third jury trial, the Commonwealth exercised a number of peremptory strikes against potential jurors. (9) In response, Carter raised several Batson challenges, one which alleged that the Commonwealth discriminated against a juror based on their sexual orientation. (10)

During jury selection, juror no. 202 was asked by the trial judge to clarify her household status as either "single, married, domestic partner, separated, divorced, or widowed." (11) After the juror responded, "domestic partner," the Commonwealth exercised a peremptory strike and Carter raised a Batson challenge, alleging that the juror was struck because she "may be considered gay." (12) Carter's challenge was dismissed by the trial judge who stated that sexual orientation was not recognized as a protected class in Massachusetts. (13) This third jury ultimately convicted Carter on both counts, and Carter appealed. (14) The SJC held that as a matter of first impression, sexual orientation was a protected class for purposes of Batson challenges. (15) Despite this novel ruling, the court further held that there was insufficient certainty regarding juror no. 202's sexual orientation and therefore Carter had not met their initial burden of making a prima facie showing of discrimination. (16)

Peremptory strikes have long been considered "one of the most important of the rights secured to the accused" and key to "reinforcing a defendant's right to trial by an impartial jury." (17) Proponents for peremptory strikes argue that they allow parties to reject jurors whom they suspect are so partial against them that any subsequent trial would be unfair. (18) By removing those suspected of having extreme bias, parties can be confident that they are trying their case before a neutral jury from the venire. (19) In 1965, the Court in Swain v. Alabama refused to hold that racial discrimination of jurors constituted a violation of the Equal Protection Clause, instead holding that a party must demonstrate that racial discrimination occurred at a systemic level before the court could find such a constitutional violation. (20)

Twenty-one years later, in Batson v. Kentucky, the Supreme Court overruled Swain and held that the Equal Protection Clause forbids the challenge of individual jurors solely on account of their race. (21) The Supreme Court then established a three-step analysis for evaluating claims that a peremptory strike was impermissibly discriminatory: (1) the objecting party must make a prima facie showing of racial discrimination, (2) the striking party must then rebut with a race-neutral justification, and (3) the court must then decide whether purposeful discrimination has occurred. (22) The Supreme Court explained that this first step only requires the party raising a Batson challenge to produce sufficient evidence for a trial judge to draw a prima facie inference of racial discrimination. (23) The Court also clarified that while the second step of Batson shifts the burden to the striking party to articulate a race-neutral explanation, it "does not demand an explanation that is persuasive, or even plausible." (24) While Batson established the framework for assessing objections to peremptory strikes, some jurisdictions have modified its application. (25)

Courts have extended Batson's principles to apply to jurors struck on account of their ethnicity, nationality, or gender. (26) The protections afforded to potential jurors under Batson have also been extended to civil cases. (27) However, the Court has yet to extend Batson to jurors struck based on their perceived sexual orientation, despite the Court's recent trend of protecting other gay rights. (28) Both Carter and the Commonwealth acknowledged that the exclusion of a juror based on their sexual orientation is a violation of equal protection principles, resting their conclusion on the notion that sexual orientation is inexplicably intertwined with sex, a recognized protected class. (29) As a result, both parties urged the SJC to follow California and Nevada in becoming the third state to extend Batson to sexual orientation. (30) Despite the Commonwealth's agreement that sexual orientation should be a protected class for purposes of peremptory strikes, it nevertheless argued that Carter had still failed to make a prima facie showing of discrimination against the struck juror and therefore did not meet their burden under Batson's (31)

In Commonwealth v. Carter, the SJC held that sexual orientation is a protected class for purposes of a Batson challenge. (32) To justify its novel holding, the SJC recognized the pernicious discrimination that has permeated the LGBTQ+ community both historically and in modern times. (33) Additionally, the SJC followed the Supreme Court's reasoning in Bostock by acknowledging how "sexual orientation is 'inextricably bound up with sex.'" (34) Agreeing with both the Commonwealth and Carter, the SJC recognized the impossibility of discriminating against an individual based on their sexual orientation without also discriminating against that individual based on sex, a well-established protected class. (35) Lastly, the SJC discussed the lack of correlation between a juror's sexual orientation and their ability to serve as an impartial juror. (36) By removing a juror solely on account of their sexual orientation, the defendant's constitutional right to a fair and impartial jury is violated. (37)

Despite the SJC's formal recognition of a new protected class, the court dismissed Carter's Batson challenge. (38) Applying the three-step analysis introduced in Batson, the majority found insufficient facts in the record to determine the struck juror's sexual orientation. (39) The SJC noted that meeting the first step of Batson may present difficulties for a party asserting discrimination based on sexual orientation, recognizing the concealability of one's sexuality in comparison to other protected classes such as race and gender. (40) Despite this difficulty, the SJC chose to keep Batson's three-step analysis intact as applied to sexual orientation. (41)

Like other jurisdictions that have addressed the issue, the majority in Carter was correct to conclude that sexual orientation should be considered a protected class. (42) An attorney exercising a peremptory challenge against a gay juror considers two factors--the juror's sex and the juror's attraction to another individual of the same sex--and since the juror's sex is connected to the juror's sexual orientation, discrimination based on sexual orientation is possible. (43) However, unlike race and gender, an individual's sexual orientation is not outwardly identifiable. (44) Therefore, absent a voluntary admission from a potential juror of their sexual orientation, it would be impossible for a court to determine a juror's sexuality with certainty unless the court allows further inquiry. (45) Given the court's inability to determine whether a juror is affiliated with a cognizable group, it is impossible for a challenging party to make a prima facie case of discrimination. (46) As a result, the majority has placed parties raising a Batson challenge on account of a juror's perceived sexual orientation at a unique and significant disadvantage. (47)

In his concurrence, Justice Lowy noted that Batson is unworkable in its current form as applied to sexual orientation, and suggested that Batson's first step should be eliminated when such challenges are raised. (48) Rather than applying the traditional Batson three-step analysis, the majority should have followed Justice Lowy's approach. (49) A number of alternative approaches have been considered to address the shortcomings of Batson when applied to sexual orientation. (50) First, direct inquiry of a juror's sexual orientation would likely resolve any ambiguity, but such questioning is inappropriate where a prospective juror maintains a privacy interest in not being required to disclosed highly personal information to the court. (51) Second, a prima facie showing of discrimination could be made by allowing attorneys to rely on the same stereotypes the striking party may have relied on, but such an approach would essentially amount to a court endorsement of the same discrimination it seeks to eradicate. (52) Lastly, a court relying solely on information volunteered by a juror would be problematic where the striking party...