LAW | summer 2004
A Prosecutor Extols Jury Service for Women
Jury Verdicts, whatever the outcome, are often controversial. Was justice served? Was the trial fair? Did both sides have equal or at least adequate resources to make their case?
I believe, for example, that the government’s vigorous prosecution of Martha Stewart was part of an orchestrated “bitch hunt,” but her conviction was made more palatable by one thing: the configuration of the jury. There were eight women and four men, a group reflecting a cross-section of the community and, quite probably, the gender makeup of her audience. From my perspective as a veteran prosecutor, the all-too-elusive search for justice is a function not merely of result, but of process. Without a fair process, a logical result may seem unjust; with a fair process, even a disagreeable result is made more tolerable.
For this reason, I’m infuriated by those who espouse the “common wisdom” that any intelligent person can — and should — avoid jury service. Those who serve, many believe, are either dimwits or retirees with nothing better to do.
Obviously, I am not talking about people for whom jury service presents an actual hardship, financial or otherwise. I am talking about politically engaged, socially conscious individuals who make an exception to duties of citizenship when it comes to serving on a jury.
Many of the same people who would never think of not voting eschew jury service with a vengeance. I frequently get calls from friends and associates asking me for the best way to “get out of ” jury service. I have yet to receive a call from someone sharing the gratifying news that she has just received a jury summons.
Am I the only person on the planet who believes that jury service, to borrow from our beleaguered Martha, is “a good thing”?
I know what you’re thinking: Easy for her to say, because as a prosecutor she’s probably never served on a jury. Never been bored and inconvenienced. Never sat for hours in an uncomfortable chair in a stuffy jury assembly room, with a flickering television tuned to a tedious game show that’s often overpowered by a painfully loud PA system.
Actually, I’ve served on three juries over the years, one criminal and two civil. Surprised that a deputy district attorney would be picked as a juror? Perhaps the federal time my cousin served for destroying his draft card back in the ’60s counterbalanced my presumed conservatism — but that’s another story.
Despite the incommodious accommodations and time subtracted from more personally satisfying endeavors, I am zealous about the jury system, and determined that if I cannot get you to share my zeal, at least I can encourage you to share my commitment.
In 1954, the live TV production “Twelve Angry Men” hit the boards and in 1957 the much-acclaimed movie of the same title was released. No one took issue with the all-male composition of the jury in this fictional account of a murder trial’s deliberations. Maybe that’s because the legal right of American women to sit as jurors wasn’t fully realized until the late 20th century.
For decades after women won the right to vote, states retained the power to discourage women from jury unservice. So, from 1920 onward, women’s rights advocates — recognizing that participation in the justice system is both an entitlement and an obligation — fought to open jury service to women. Their battles were pitched in the legislatures and in the courts.
In 1947, the United States Supreme Court heard the case of Fay v. New York, in which the state’s use of a “blue ribbon” jury was challenged. On such juries, women were granted a special exemption not to serve if they chose — a choice not available to men. In Mr. Fay’s case, only one woman served on the jury at his conspiracy/extortion trial.
Justice Robert H. Jackson, in delivering the opinion of the court, complained about “the cryptic words of the 14th Amendment,” but nonetheless concluded that New York state had not violated either its due process nor equal protection clauses. In his dissent, Justice Frank Murphy, joined by Justices Hugo L. Black, William O. Douglas and Wiley B. Rutledge, argued that the amendment’s equal protection clause does prohibit states from “convicting any person by use of a jury which is not impartially drawn from a cross-section of the community. That means that juries must be chosen without systematic and intentional exclusion of any otherwise qualified group of individuals.”
Fast-forward to 1961 and the U.S. Supreme Court case Hoyt v. Florida. Ms. Hoyt was convicted of the seconddegree murder of her husband by a jury composed of 12 no-doubt-angry men, convened under a Florida statute that read: “[No] female person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.” As you might imagine, a paucity of women in Florida “desired” to serve as jurors.
Ms. Hoyt argued that female jurors might have been more understanding of her “temporary insanity” defense and more compassionate regarding the facts of her case. (Apparently, she had assaulted Mr. Hoyt with a baseball bat “in the context of a marital upheaval involving, among other things, the suspected infidelity of appellant’s husband…”)
Citing the Fay case, Justice John M. Harlan extolled the virtue of the Florida law, which, like the New York statute, gave women “the privilege to serve but does not impose service as a duty.” He reasoned that, “[d]espite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved for men, woman is still regarded as the center of home and family life.”
Amazingly, not a single justice dissented — not even ostensibly progressive Justices Black and Douglas, who had joined in a vigorous dissent 14 years earlier in the Fay case (Justices Murphy and Rutledge had since died). But why no dissent? Could it be that the all-male Supremes could not detect even a whiff of constitutional infirmity in a case involving a woman who beat her unfaithful husband to death with a baseball bat? I expect the highest court was so desirous of affirming Ms. Hoyt’s conviction that they were unservice.able to be dispassionate in their legal reasoning.
Thankfully, Hoyt is not the end of this story. In 1975, the Supreme Court was again asked to face the female juror question, in Taylor v. Louisiana. Mr. Taylor was convicted of aggravated kidnapping by an all-male jury chosen from an all-male panel. Although Louisiana’s jury selection system did not disqualify women from service, it effectively discouraged them: As in the Florida law, a woman could not be seated as a juror unless she had previously declared in writing her desire to serve.
In an opinion delivered by Justice Byron R. White, the court ruled that “it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires [panels] are almost totally male.” The holding in Hoyt was specifically disapproved.
This surely was a unanimous opinion, right? Almost. Justice William H. Rehnquist, now Mr. Chief Justice, dissented. Today, I expect he would be joined by Justices Antonin Scalia and Clarence Thomas. If the current Supreme Court changes composition in a conservative direction over the next few years, the pendulum might be allowed to swing backwards. So, next time you get a jury summons, don’t call me to help you get out of it. Remember that someone like Ms. Hoyt or Ms. Stewart might need you.
Have you been called for jury duty?
Marissa N. Batt, a deputy district attorney for Los Angeles County, is the author of Ready for the People: My Most Chilling Cases as a Prosecutor (Arcade, 2004).