A Jury of Their Peers

Defendants' rights should supercede those of jurors.

When Lemrick Nelson Jr. was acquitted nearly two years ago in the racially motivated stabbing of Yankel Rosenbaum, an Australian Hasidic scholar, Rosenbaum's friends were, naturally, upset.

They though Nelson, A 17-year-old Black youth from Brooklyn, had gottten away with murder. And they blamed the jury of six Blacks, four Hispanics and two whites for letting him. "Yankel Rosenbaum's fate was decided by a jury of what was certainly not his peers," one protestor said then.

The protestor's complaint was understandable. He felt that, as minorities, most of the jurors were inclined from the start to sympathize with the minority defendant, and against the white victim.

But the protestor was wrong in one respect. it wasn't Yankel Rosenbaum's fate that the jury was deciding--it was Lemrick Nelson's . Whether or not the verdict was fair, it was the product of a judicial system that, quite logically, favors the accused over the victim.

The United States gives defendants in criminal trials the benefit of the doubt. They are considered innocent until proven guilty, they are guaranteed legal counsel, and they have to right to be tried before a jury of their peers.

These safeguards are founded on an important moral doctrine--that finding a few guilty people innocent is better than finding a few innocent people guilty.

This week, the Supreme Court took a major step toward undermining that moral system, by dramatically limiting defendants' rights to pick juries they think will be most sympathetic to them. By a vote of six to three, the Court ruled that jurors cannot be excluded from a case based on their gender.

The ruling, though unfortunate, was not unexpected--it extended an unfortunate decision the Court made eight years ago barring the exclusion of jurors on the basis of race. Though made in a civil case, the decision will have its most profound effect on criminal defendants, infringing on their right to "peremptory challenges." Such challenges allow litigants to disqualify a limited number of jurors for any reason.

The court based its decision on the Equal Protection Clause of the 14th Amendment, which, it said, protects potential jurors from unfair discrimination. Condoning race and gender-based peremptory challenges, it determined, risks perpetuating "invidious, archaic and overbroad stereotypes about the relative abilities" of the different genders and races.

This argument is flawed for two reasons: first, because it mistakenly assumes that people's experiences as members of particular races and genders do not influence their judgment; and, second, because it improperly ranks the rights of jurors over those of defendants.

Justice Sandra Day O'Connor, who voted with the majority because she felt the government should not have the right to discriminate in the juror selection process, nevertheless noted these difficulties. "To say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact," O'Connor wrote. She said her decision should not seen as pertaining to defendants in criminal cases.

"Will we, in the name of fighting gender discrimination, hold that the battered woman on trial for wounding her husband... [is precluded] from using her preemptory challenges to insure that the jury of her peers contains as many women members as possible," O'Connor asked. "I hope...not."

That's good to hear. But as far as innocent defendants in criminal trials are concerned, O'Connor's hope may be too little, too late.

Stephen E. Frank's column appears on alternate Thursdays.