Trial News

After two men convicted of murder challenged the prosecution’s use of peremptory challenges, the Massachusetts Supreme Judicial Court has found that sexual orientation is a protected class for purposes of jury selection. The court also found that although some members of a protected class were already seated on the jury, the trial court still must obtain a neutral justification for strikes of protected class members. (Commonwealth v. Carter, 2021 WL 3612686 (Mass. Aug. 16, 2021).)

Antwan Carter and Daniel Pinckney were convicted of a 2007 murder after two mistrials due to deadlocked juries. During jury selection for the third trial, the men argued that the prosecution’s peremptory strikes of five prospective jurors were impermissible under Batson v. Kentucky (476 U.S. 79 (1986)) and Commonwealth v. Soares (387 N.E.2d 499 (Mass. 1979)). The prosecution had stricken three Black females (juror nos. 165, 171, and 227) and a Black male in his twenties (juror no. 187). The trial court judge allowed this, noting that five of the 14 seated jurors were Black. The prosecution also exercised a peremptory challenge against a woman who listed her household status as “domestic partnership” (juror no. 202). The defense again raised Batson-Soares, arguing that the challenge was “against a person who ‘may be considered gay.’” The judge rejected this line of argument, noting that a domestic partnership could refer to a heterosexual or gay relationship and that regardless, sexual orientation is not a “suspect classification.”

Carter and Pinckney appealed, arguing that the trial court had abused its discretion in rejecting the five Batson-Soares challenges. The Massachusetts Supreme Judicial Court first noted the requirements for challenges to peremptory strikes: the objecting party must establish a “prima facie showing of impropriety,” the party attempting to strike the prospective juror must provide a “group-neutral reason” for the strike, and the judge must evaluate whether that reason is “adequate” and “genuine.”

As to the strike of the potentially gay prospective juror, the Massachusetts Supreme Court, in an issue of first impression, found that a peremptory challenge based on sexual orientation is prohibited. The court noted that gay individuals have endured “pernicious discrimination” both historically and in modern times—including discrimination by the state through bars on military service, exclusion under immigration laws, and burdens on the right to marry or even associate. The court then cited Bostock v. Clayton County, Ga., where the U.S. Supreme Court found that “a person’s sexual orientation is ‘inextricably bound up with sex.’” (140 S. Ct. 1731 (2020)). When a prospective juror is challenged based on sexual orientation, the court concluded, “the challenging party must inherently rely on the person’s perceived sex and . . . gender norms.” Finally, the court said, “a prospective juror’s sexual orientation is not at all relevant to whether that person is able to serve as an impartial juror.” Although the court concluded that the exclusion of a prospective juror based on sexual orientation violates a defendant’s constitutional right to a fair and impartial jury, it found that in the case of juror no. 202, the defense failed to present sufficient facts to establish her sexual orientation.

Regarding the strike of the prospective Black jurors, the Massachusetts high court found that the trial court judge incorrectly “relied all but exclusively on the racial composition of the previously seated jurors.” The composition of a seated jury can be used as a “prism through which to determine discriminatory intent,” the court said, but peremptory challenges are not immunized from scrutiny just because some members of a protected class have been seated on a jury. The court took particular issue with the strike of juror no. 187, who was the first prospective juror of the same race and approximate age as the defendants. Juror no. 187 gave no answers during voir dire that raised concerns, and the judge did not question him further, finding him “indifferent.” Nevertheless, the judge allowed the peremptory challenge without requiring the prosecution to give a race-neutral reason. The court reversed the defendants’ convictions given these findings.

GLBTQ Legal Advocates & Defenders staff attorney Chris Erchull, of Boston, said that with this decision, “the Massachusetts Supreme Judicial Court acknowledged for the first time that LGBTQ people are a constitutionally protected class that merits the same constitutional concern as distinctions based on sex, race, color, creed, or national origin. In addition, by incorporating the U.S. Supreme Court’s 2020 ruling in Bostock into its constitutional analysis, the court agreed that sexual orientation and transgender status discrimination is also appropriately viewed through the lens of sex discrimination.” Erchull added that “as to peremptory challenges specifically, the court moved the needle to uphold both an LGBTQ juror’s right to serve and a defendant’s right to a jury of one’s peers without exclusions based on sexual orientation.”

AAJ LGBT Caucus Secretary Casey Johnson, of Santa Ana, Calif., said that “by unequivocally recognizing sexual orientation as a protected class, the Massachusetts Supreme Judicial Court has confirmed the importance of members of the LGBTQ community fully participating in one of the most fundamental aspects of American democracy—trial by a jury of one’s peers.”