Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, November 3, 1993 TAG: 9311030144
SECTION: NATIONAL/INTERNATIONAL PAGE: A8 EDITION: STATE
SOURCE: Chicago Tribune
DATELINE: WASHINGTON LENGTH: Medium
But the Alabama state government lawyer suing James Bowman on Bible's behalf worked to fashion an all-female jury. Bowman objected, and the case mushroomed into a major Supreme Court examination of gender discrimination.
On Tuesday, Bowman's lawyer, John F. Porter III, told the justices that excluding men or women from juries because of their sex is just as harmful to the criminal justice system as eliminating potential jurors based on their race, something the court has declared unconstitutional.
There is an "injury to the entire community when a group . . . is eliminated by group bias or unwarranted stereotypes," Porter said. "You should not be able to exclude a male or female simply because of their gender."
But Alabama Assistant Attorney General Lois Brasfield argued that the Constitution's guarantee of equal protection of the laws doesn't bar lawyers from dismissing potential jurors based on their sex. Creating such a rule would cause "a great many more problems than it actually fixes," she said.
Many legal observers think the debate is a logical extension of a series of rulings dating to 1986 that forbid discrimination in jury selection in both criminal and civil cases. However, those decisions, starting with Batson vs. Kentucky, all deal with racial bias.
During Tuesday's arguments, several justices appeared concerned that barring sex-based jury dismissals as well could lead to claims that potential jurors were wrongly eliminated because of religion, national origin or even hair color or profession.
Some lawyers believe that new restrictions would gut the system of peremptory strikes that was designed to let lawyers eliminate some potential jurors without stating their reasons. The late Justice Thurgood Marshall advocated doing away with peremptory strikes but never won wide support on the court for his view.
Porter, Bowman's lawyer, suggested Tuesday that the justices draw the line at barring discrimination based on race, sex, religion, national origin or illegitimacy, because the court has already said those groups are entitled to some kind of special protection.
The high court has held that laws treating blacks differently from whites are unconstitutional unless they are narrowly drawn to promote a compelling government interest.
Laws alleged to discriminate based on sex, religion, national origin or illegitimacy are put to a less stringent test: They must be substantially related to an important government interest.
Laws that affect any other groups must simply be rational to be constitutional.
Brasfield said the court was right to bar racial bias in jury selection because of a widespread problem of lawyers' systematically excluding blacks from serving.
But Justice Ruth Bader Ginsburg, a former women's rights advocate, pointed out that women were barred from Alabama juries until 1967, even after blacks were finally allowed to serve.
"There's no other group that was excluded from juries as long as women," Ginsburg said.
In the 1970s, Ginsburg argued and won Supreme Court cases that struck down Louisiana and Missouri laws broadly exempting women from jury service.
Supporting a ban on gender-based dismissals, Justice Department lawyer Michael Dreeben told the court that nine states, including New York, California and Massachusetts, as well as one federal appeals circuit already have adopted such a ban.
But Justice Antonin Scalia asked why lawyers should not be entitled to work from the notion that men and women might approach rape or custody cases differently.
Brasfield argued that Bowman didn't lose the paternity fight "because of a biased all-female jury."
A blood test showed a 99.92 percent probability that Bowman had fathered Phillip Rhett Bowman Bible, who was born in 1989.
There were 23 women and 10 men in the pool from which the jury was chosen. The state's lawyers dismissed nine men and one woman; Bowman's attorneys struck one man and 10 women.
Dreeben said the issue isn't whether barring gender-based strikes would produce more accurate verdicts but whether potential jurors and the general public consider the system fair.
"The community itself has less confidence in the integrity of the process if biased processes are used," he said.
by CNB