LOOKING BEYOND BATSON: A DIFFERENT METHOD OF COMBATING BIAS AGAINST QUEER JURORS.

• Author: Tayman, Anna L.

INTRODUCTION I. A HISTORY OF UNEQUAL ACCESS TO THE JURY BOX A. The Controversy Surrounding the Peremptory Challenge B. Batson and Its Progeny C. The Case for Extending Batson to Protect Queer Jurors II. BATSON'S SHORTCOMINGS A. The "Neutral Reason" Test 1. Explicit Bias and Pretense 2. Implicit Bias and Good Intentions 3. The End Results B. Invisible Identities and Identifying Bias III. WASHINGTON'S NEW RULE A. An Overview of General Rule 37 B. How Washington's Rule Could Apply to Queer Jurors 1. Examples of Presumptively Invalid Reasons 2. Lines of Questioning 3. Implicit Bias IV. OBJECTIONS A. The Issues with a Legislative Approach B. The Dangers of Taking the Teeth Out of the Peremptory Rule CONCLUSION INTRODUCTION

On November 27, 1978, Harvey Milk, the first openly gay elected official in California's history, was murdered. (1) He was shot five times, twice in the head. (2) His murderer, Dan White, was convicted of voluntary manslaughter and served only five years in prison. (3)

The Dan White trial is the most famous example of queer juror exclusion in American history. (4) While White's defense attorney, Douglas Schmidt, could not directly ask the jurors about their sexual orientation, he had another strategy: find the gays and allies and keep them out, and find the Catholics and keep them in. (5) Schmidt struck a woman who admitted to walking with some of her friends at a gay pride parade; he kept a retired police officer. (6) He struck a young man who said he lived with a male roommate; he kept the churchgoers. (7) He asked everyone: "Have you ever supported controversial causes, like homosexual rights, for instance?" (8) By the end of the jury selection process, the jury was entirely white and heterosexual. (9) And by the end of the trial, Dan White, who lured Harvey Milk into an empty room and shot him twice in the skull, was only convicted of voluntary manslaughter and served a fraction of the time he would have received for a murder conviction. (10) After he was convicted, in a night of protests that became known as the White Night Riots, crowds took to the street chanting, "All-straight jury. No surprise. Dan White lives. And Harvey Milk dies." (11)

The nation's queer (12) advocates were stunned. (13) There was a sense that "few judges in America would allow black jurors to be systematically excluded from a jury weighing the murder of the nation's most prominent black public official." (14) At the time, of course, there were no such protections for black jurors. (15) Those protections would not properly arise until 1986 with Batson v. Kentucky, (16) and even then, the protections would apply only to racial (and later, gender) (17) classifications. No court would consider protecting queer jurors from peremptory strikes until 2014. (18)

In the past twenty years, scholars have started calling for an expansion of the Batson rule to protect queer jurors. (19) In 2014, the Ninth Circuit became the first to rule that Batson applied in cases of discrimination based on sexual orientation. (20) It based its decision partially on the contemporaneous United States v. Windsor ruling, where the Supreme Court affirmed a Second Circuit decision that relied on the understanding that classifications based on sexual orientation were subject to heightened scrutiny. (21) But while an expansion of the Batson rule is both consistent with Supreme Court precedent (22) and necessary, (23) it is not the only available solution to the problem of bias against queer jurors, nor is it necessarily the best one. (24) This Note calls for a different solution--a rule that goes beyond Batson and addresses both explicit and implicit bias, as well as discriminatory motives obscured by facially neutral excuses.

Part I examines the constitutional and historical basis of the peremptory challenge, the history of exclusion of protected classes from the jury box, and the ruling, reasoning, and practical consequences of Batson. Part II examines Batson's shortcomings, first looking at evidence of its failure to address racial disparities in juries, then at the issue of less visible class distinctions such as sexuality and gender identity and how those identities complicate the problem of implicit bias and stereotyping. Part III examines Washington's newly implemented General Rule 37, which goes beyond the Batson rule and limits peremptory strikes based on both explicit and implicit bias, and attempts to ferret out impermissibly discriminatory motives. Part III then explains how such a standard could more effectively govern the discriminatory striking of queer jurors at a national level. Part IV acknowledges the shortcomings of a legislative approach to reforming the peremptory challenge rule and addresses the potential dangers of so limiting the rule.

1. A HISTORY OF UNEQUAL ACCESS TO THE JURY BOX

   For most of American history, Americans were not judged by a jury of their peers. (25) At first, various openly discriminatory laws kept women and people of color out of the juror pool entirely. (26) But once the Court ruled such laws unconstitutional, lawyers and legislators used other strategies--dishonest voir dire practices, costs associated with jury participation, (27) and explicit training in racist and sexist jury selection--that all resulted in less diverse juries. (28) Abuse of the peremptory challenge is one such strategy. (29)

   1. The Controversy Surrounding the Peremptory Challenge

      Though specific rules vary by jurisdiction, generally attorneys have two tools during jury selection: strikes for cause and peremptory strikes. (30) Strikes for cause apply in cases of obvious bias, like if a juror is related to a party or has some financial interest in the litigation. (31) Peremptory strikes are where Batson kicks in. Each party gets a certain number of strikes that can be used for any reason without stating a cause--unless, the Court in Batson held, that cause is racial (or later, gender) bias. (32)

      Scholars have been predicting the death of the peremptory challenge for decades. (33) Critics believe that the peremptory challenge is an insult to the democratic ideals of the country; (34) skeptics believe that peremptory challenges are ineffective in ensuring a fair trial; (35) cynics argue that the peremptory challenge still exists only because of its perceived deep historical roots. (36) However, many scholars and practicing attorneys argue that the peremptory challenge is not only important because of its roots in the history of the jury, but because it allows counsel to protect against biases that jurors will not admit to during voir dire, or might not even be aware of themselves. (37) It also allows attorneys to have a more active role in juror selection. If only strikes for cause existed, the judge would be in complete control of the makeup of the jury.

      The Supreme Court has both pleased and enraged those on either side of the debate. It has held that "the Constitution does not guarantee a right to peremptory challenges" (38) and that mistaken denial of a peremptory strike is not per se reversible error under federal law or the Constitution. (39) But the Court has also noted the long history of peremptory strikes, including an eloquent and lengthy tribute in Swain v. Alabama, the precursor to Batson. (40) In fact, when Batson was announced, Chief Justice W arren Burger was so displeased by the majority's failure to fully articulate the grand legacy of the peremptory challenge that he took it upon himself to do so. (41) He quoted large sections of Swain and concluded that, if the Court had bothered to consider the State's interest in maintaining the benefits of the peremptory rule, those benefits might very well outweigh the equal protection challenge. (42)

      Regardless of these ongoing fights over the value of the peremptory rule generally, it is undeniable that the rule has grappled with the Equal Protection Clause for centuries. (43) Until the Reconstruction Era, lawyers rarely had to rely on the peremptory challenge to exclude minority racial groups because the legal system simply excluded them at the front end. (44) But as the federal government slowly brought an end to de jure segregation and more black potential jurors ended up in the venire, litigators began using peremptory strikes as a way to keep them off of juries. (45) This led to a series of Supreme Court cases addressing, essentially, the de facto exclusion of black jurors, all of which culminated in the current law: the Batson challenge. (46)

   2. Batson and Its Progeny

      The facts of Batson are straightforward: an all-white jury convicted James Batson, a black man, of burglary, and on appeal, Batson challenged the prosecutor's jury selection process. (47) Before trial, the prosecutor had used his peremptory strikes to strike all four of the black potential jurors. (48) The lower court, relying on Swain, held that Batson had not shown that the prosecution's jury selection process was generally racist across all its cases, only that it might have been in this particular case. (49) The Supreme Court reversed, and the new and highly controversial Batson standard was born. (50)

      Batson did two things: (1) it lowered the burden of proof so that a defendant only needs to make a showing that the jury selection was race-based in the defendant's own case, rather than systematically across the jurisdiction; (51) and (2) it established the test for whether a peremptory challenge must be denied. (52) A Batson challenge works like this: after one party makes a peremptory strike, the other side objects, claiming racial bias. (53) The striking party then must offer a neutral reason for the strike. (54) Importantly, the reason given by the striking party does not have to be, to use the Court's own word, "plausible"; it just needs to be neutral. (55) The objecting party then has an opportunity to try to prove that the strike was in fact racially motivated. (56)

      Since Batson, the...