State v. Lowe: the Supreme Court of Nebraska Correctly Determines Gender Discrimination During Jury Selection Constitutes an Equal Protection Violation Not Subject to Harmless Error Review

• Publication year: 2022

38 Creighton L. Rev. 193. STATE V. LOWE: THE SUPREME COURT OF NEBRASKA CORRECTLY DETERMINES GENDER DISCRIMINATION DURING JURY SELECTION CONSTITUTES AN EQUAL PROTECTION VIOLATION NOT SUBJECT TO HARMLESS ERROR REVIEW

Creighton Law Review

Vol. 38

INTRODUCTION

The peremptory challenge system has a vast history, dating back more than two thousand years.(fn1) The Romans were the first to use the peremptory challenge in 104 B.C.(fn2) The modern day American jury system inherited the peremptory challenge system from English common law in 1790.(fn3) By 1870, the great majority of the American states provided the defense and prosecution alike a specified number of peremptory challenges in judicial actions.(fn4) Since that time, attorneys have used this power to strike potential jurors for any reason they have deemed necessary.(fn5) However, contemporary judicial opinions have curtailed this liberal freedom to exercise peremptory challenges.(fn6) Recently, the Supreme Court of Nebraska had an opportunity to decide whether an Equal Protection violation occurred when the prosecution used peremptory challenges to remove men from the jury panel in a sexual assault case.(fn7) Further, the court addressed, as a matter of first impression, whether discrimination during voir dire was subject to harmless error analysis.(fn8)

In State v. Lowe,(fn9) the Supreme Court of Nebraska was confronted with the task of balancing the freedom to use peremptory challenges with the demands of the Equal Protection Clause.(fn10) This undertaking offered the court the opportunity to analyze the reasoning of prior judicial opinions in order to decipher just how much freedom of choice prosecutors maintained when choosing the jury.(fn11) Specifically, the Lowe court was asked to determine whether a prosecutor could use peremptory challenges to strike men from the jury pool strictly on the basis of gender without violating the Equal Protection Clause.(fn12) The court concluded it was an Equal Protection violation to eliminate jurors on the basis of gender.(fn13) The court reasoned when the prosecution struck men from serving as prospective jurors, the prosecution endorsed and perpetuated objectionable, historical, and overbroad stereotypes concerning the relative capabilities of men and women.(fn14) The court specifically decided the prosecution's desire to achieve gender balance in the final jury composite and the prosecution's desire to maintain a woman's point of view on the panel were not gender neutral reasons for striking men.(fn15) The court reasoned litigants were never entitled to a jury made up of any specific composition.(fn16) The court noted the United States Constitution guaranteed only that every litigant maintained a right to be tried by a jury selected pursuant to nondiscriminatory criteria.(fn17) Additionally, as a matter of first impression, the court concluded gender discrimination in the selection of a petit jury was a structural error that was not reviewable under a harmless error analysis.(fn18) The court agreed with other federal circuit courts in reasoning such error adversely harmed the excluded juror and undermined public confidence in the equality of the judicial system.(fn19)

As this Note will demonstrate, the court's decision in Lowe correctly followed well-reasoned precedent that concluded discrimination in the jury selection process violated the Equal Protection Clause.(fn20) Further, the court correctly adhered to precedent in holding such discrimination was a structural error not subject to harmless error analysis.(fn21) This Note will begin by detailing the facts and holding of Lowe.(fn22) Next, this Note will review prior federal and state cases, wherein the court concluded discrimination during the jury selection process violated the Equal Protection Clause.(fn23) This Note will then review federal cases that have concluded discrimination during voir dire was a structural error not subject to harmless error review.(fn24) Then this Note will highlight the comparisons between these prior cases and Lowe and conclude the Lowe court followed well-reasoned precedent in correctly ruling gender discrimination during voir dire violated the Equal Protection Clause.(fn25) Further, this note will emphasize the similarities between Lowe and other federal court opinions to conclude the Lowe court followed well-reasoned precedent in holding gender discrimination a structural error not subject to harmless error review.(fn26)

FACTS AND HOLDING

In State v. Lowe,(fn27) the state of Nebraska charged James Lowe with Class IIIA felony sexual assault of a child.(fn28) Sexual assault of a child was punishable under Nebraska Revised Statutes § 28320.01(2), which carried a maximum penalty of five years imprisonment and a ten thousand dollar fine.(fn29) After the State filed an information, Lowe proceeded to trial in the District Court of Scottsbluff County.(fn30)

Jury selection commenced on March 12, 2003.(fn31) Throughout the course of voir dire, the prosecuting attorney for the State exhausted all six of the allotted peremptory challenges to remove males from the jury panel.(fn32) After the jurors were chosen and prior to the jury being officially sworn, Lowe objected to the jury selection process, claiming the prosecution's peremptory challenges violated the rule set forth in Batson v. Kentucky.(fn33) Lowe claimed the prosecution violated the Equal Protection Clause of the Fourteenth Amendment when the prosecution struck six male jurors.(fn34) Lowe claimed such action was a form of inappropriate gender discrimination and was therefore unconstitutional under Batson.(fn35)

Following Lowe's Batson challenge, Judge Randall L. Lippstreu, presiding over the trial court, requested the State to provide a gender-neutral clarification for eliminating the six male jurors in question.(fn36) The prosecution stated it chose to eliminate male jurors because the prosecution felt "it's important to have a mix. . .you need to have some women on a jury on a case like this who bring a different sort of experience into the jury room than just having men."(fn37) The prosecution further elaborated by asserting "oftentimes women in our society do provide a lot of the child caretaking and I think that's a legitimate reason for the State to try to have some women on a panel."(fn38)

Lowe contested the validity of the State's alleged gender-neutral explanation for striking the six male jurors and maintained that the prosecutor's reasoning was not gender neutral.(fn39) After listening to the arguments presented by Lowe and the State during a hearing on this issue, Judge Lippstreu overruled Lowe's motion and opined there was no Equal Protection violation because the final construction of the jury panel consisted of an equal number of men and women.(fn40) The court stated a fairly equal mix of men and women on a jury panel would not deny equal protection, and if anything, would comply with the notion of equal protection.(fn41)

After the trial court denied Lowe's Batson challenge, the case proceeded to a trial by jury, and the jury found Lowe guilty of sexual assault of a child.(fn42) Subsequently, Lowe appealed the trial court's decision to the Supreme Court of Nebraska, arguing the trial court erred when it denied his Batson challenge which asserted the State had intentionally discriminated based on gender during the jury selection process.(fn43) Lowe also argued the offered explanation constituted a violation of the Equal Protection Clause of the Fourteenth Amendment.(fn44) The Supreme Court of Nebraska took the case on appeal directly from the trial court.(fn45)

In reviewing the case on appeal, Judge Michael McCormack of the Supreme Court of Nebraska stated the prosecution failed to provide a neutral reason for striking male jurors, thereby violating the Equal Protection Clause, because gender balance on the jury panel was inapposite.(fn46) The court overruled the trial court's determination that gender balance in the jury panel was relevant and did not violate equal protection.(fn47) The court also opined the prosecution's desire to maintain a female perspective on the final jury panel was not neutral because the explanation reinforced objectionable stereotypes concerning the abilities of males and females.(fn48) The court concluded the State violated the Equal Protection Clause of the Fourteenth Amendment when it struck potential male jurors on the basis of gender.(fn49) Additionally, the court held a Batson violation was not subject to harmless error review.(fn50) The court determined a Batson violation was a structural error, and as such, reversed the ruling of the trial court.(fn51)

First, the court stated the prosecution failed to impart a gender-neutral explanation for the prosecution's peremptory strikes of prospective male jurors in violation of the Equal Protection Clause of the United States Constitution.(fn52) The court applied a three-part test, derived from Batson v. Kentucky, which had been used predominately in other similar cases.(fn53) The court stated part one of the Batson test required the defendant to make an initial prima facie showing the State used peremptory challenges to strike potential jurors based on race.(fn54) However, as a result of a more recent United States Supreme Court case, part one of the Batson test also applied to peremptory challenges based on gender.(fn55) The court noted once...