Anti-LGBT Jurors Are Harming Queer People. Here's How We're Putting a Stop to It.

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March 9, 2017
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This blog was co-authored by Eric Lesh, Lambda Legal's Fair Courts Project Director, and Richard Saenz, Lambda Legal's Criminal Justice and Police Misconduct Program Strategist.

This week, in Pena-Rodriguez v. Colorado, the U.S. Supreme Court ruled that racial bias in the jury room can violate a defendant’s right to a fair trial.

The ruling is a victory for fair courts and will help to address the widespread discrimination in the jury system that exists on multiple and intersecting fronts. The Sixth Amendment to the U.S. Constitution states, in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”

This right to an impartial jury is an LGBT issue.

In Pena-Rodriguez v. Colorado, the question before the Supreme Court was whether the usual rule that jury deliberations are secret can bar evidence of racial or ethnic bias when offered to prove a violation of the Sixth Amendment right to an impartial jury.

Federal and state courts are divided on whether the Sixth Amendment requires consideration of juror testimony that racial bias tainted deliberations. In this case, the defendant was convicted, after juror, an ex-law enforcement officer urged others to convict him “because he’s Mexican and Mexican men take whatever they want.”

Justice Anthony Kennedy wrote for the majority opinion, which acknowledged that the progress that the nation has made to overcome race-based discrimination “underlies the court's insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases."

In so doing the Court held that the “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”

In dissent, Justice Samuel Alito wrote that the ruling represented “a startling development” that would intrude on a jurors’ privacy “and argued that it was a slippery-slope towards allowing further erosion of the no-impeachment rule in order to combat bias and prejudice in the jury system.

As with other groups targeted with invidious discrimination, far too often discrimination against LGBT people has found its way into the courthouse and the jury room.

This discrimination denies LGBT people of equal access to justice and an equal opportunity to participate in civic life.

Unfortunately, juror questioning can be an ineffective and insufficient means of weeding out harmful anti-LGBT bias in the jury system. Too often, jurors with anti-LGBT biases serve simply because a judge does not allow questioning, or thinks that the juror can be impartial if they simply agree to set biases aside.

As Pena-Rodriguez held, the Sixth Amendment sometimes requires us to look behind jury deliberations when evidence emerges that those discussions were tainted by bias.

We must continue to fight jury bias, homophobia and transphobia in the courts.

To fight the corrosive impact of bias and prejudice in the court system, Lambda Legal recently filed a brief in the Eleventh Circuit in Berthiaume v. Smith.

This is a case where the trial court judge refused to ask prospective jurors a proposed juror question on to uncover anti-gay bias. The trial court went on to overrule the plaintiff’s objection to defendants’ use of peremptory challenges to strike two jurors who plaintiff believed were gay men.

Supreme Court precedent shows that the use of peremptory challenges to remove LGBT jurors should be prohibited and the constitutional right to a fair trial requires that juror questioning designed to uncover anti-LGBT bias be permitted when it is requested and relevant.

Last year, Lambda Legal’s Fair Courts Project also released Jury Selection and Anti-LGBT Bias: Best Practices in LGBT-Related Voir Dire and Jury Matters. This resource is designed to assist legal practitioners in confronting anti-LGBT bias and discrimination, through effective questioning during jury selection, called voir direAlong with this resource, we are available to provide trainings to practitioners on ethical representation of LGBT clients.

In Protected and Served?, Lambda Legal’s national survey of LGBT people interactions with government institutions, we found that community members faced both overt and subtle discrimination in the courthouse. Respondents reported experiencing a range of negative courthouse encounters, ranging from overhearing negative comments about sexual orientation to having their own sexual orientation disclosed in court against their will.

In addition to our advocacy and community education, Lambda Legal supports the Jury ACCESS Act, which would ban discrimination on the basis of sexual orientation and gender identity in federal jury selection.

We must end discrimination and prejudice in all aspects of our criminal legal system — including juries and courts.

Learn more about how each of us can take action to protect fair courts.