When Antwan Carter was on trial in a Massachusetts court, Black and LGBTQ jurors were improperly excluded from the jury. Black and Pink MA partnered with GLAD, the Charles Hamilton Houston Institute for Racial Justice, and Lambda Legal to argue to the Supreme Judicial Court that the discrimination in jury selection in Antwan Carter’s trial was not only unfair, it was unconstitutional.

For citizens of the United States, jury service is a pillar of participation in civic life. Much like voting, the right to serve on a jury is fundamental to understanding ourselves as Americans. Indeed, the Sixth Amendment to the United States Constitution guarantees that everyone accused of committing a crime is entitled to a trial before “an impartial jury.” The right to a fair trial is constitutionally linked to the right to serve on a jury. As with voting rights, the rights tied to jury service are precarious and must be guarded. As always, it is often the most marginalized among us whose rights are at stake.

“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” [1]

What Justice Thurgood Marshall articulated in 1972 after decades of litigation about race-based exclusions from jury service—that diversity among jurors is key to fair and effective deliberations—is an ongoing struggle today.

In 1966 attorneys Pauli Murray and Dorothy Kenyon briefed a case for the ACLU against the Jury Commissioner in Lowndes County, Alabama, on behalf of Gardenia White. Ms. White was a voting rights activist who was excluded from the juror rolls, both because she was a woman and because she was Black. At the time, Lowndes County excluded women from jury service by law and African Americans by practice.

Each a prominent pioneer of civil rights litigation, Murray and Kenyon understood that limiting the right to be a juror because of defining aspects of our personhood is a form of disenfranchisement. They won their case with legal arguments that highlighted the evil of intersectional discrimination in jury service.

The ACLU hoped the case would result in a Supreme Court ruling to establish sex as a protected classification under the Fourteenth Amendment. Still, Lowndes County wisely decided to change its policies rather than invite a lengthy public court battle by appealing the decision. Ruth Bader Ginsberg, at the time a lawyer with the ACLU, later credited Murray and Kenyon for the argument that ultimately applied equal protection to sex-based classifications in Reed v. Reed, even signing their names to the brief in deference to their ingenuity.

Courts have long recognized that a fair trial depends on an unbiased jury. If people are excluded based on sex, race, ancestry, or religion, the U.S. Constitution’s promise of an impartial jury of one’s peers is illusory. A venire, also known as a jury pool, cannot reflect a cross-section of the community if classes of citizens are systematically excluded from participation. As Thurgood Marshall explained, the exclusion of any class of people “deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” [2]

Diverse juries tend to be better at making decisions. A racially diverse group, for example, is more likely to talk to each other about implicit bias. Diversity also leads to more thoughtful creativity and better recall of information.

Today, we are less likely to see the intentional exclusion of a class of people from a jury venire, but discrimination nevertheless persists in jury selection. When jurors are selected from the venire, attorneys are typically granted the right to dismiss some individuals from the panel by exercising a designated number of “peremptory strikes,” which the attorneys may exercise for any reason or no reason at all. The only limitation to that right is that an attorney may not strike a juror based on a protected trait.

Of course, proving trait-based discrimination against a prospective juror is a difficult task. Too often, prosecutors in criminal cases rely on that difficulty to gain an unfair advantage against defendants. Jurors of color are most frequently the target.

Prosecutors have an incentive to eliminate members of marginalized communities from juries. As a Ventura County District Attorney training document (initially cited in a California Attorneys for Criminal Justice and Hueston Hennigan LLP amicus brief from for Johnson v. California) confessed, “people who are marginalized by societal norms” should be viewed with caution by prosecutors because they are presumably more empathetic to the experience of other marginalized people, including criminal defendants.

As a result, courts have devised an imperfect process to ferret out discrimination in jury selection. An attorney may object when a juror is dismissed by opposing counsel. It is up to the judge to decide if it looks like potential discrimination is playing out. In this case, the judge may ask the dismissing attorney to provide a neutral justification for dismissing the juror. Then the judge must decide if the neutral reason is the pretext for discrimination.

In Antwan Carter’s trial, that process failed to prevent the exclusion of Black and LGBTQ jurors. When the defense attorney in Antwan Carter’s trial raised objections to the prosecutor’s strikes, the judge ruled that she could not inquire into the possibility of discrimination based on two incorrect and unacceptable justifications. First, she ruled that the presence of Black jurors on the panel meant that there was no pattern to imply race discrimination. This cannot be correct because a prosecutor cannot have a license to discriminate against jurors based on race just because he allowed some people of color to be seated on a jury. Second, the judge said there is no constitutional rule against LGBTQ discrimination. Surprisingly, the Massachusetts Supreme Judicial Court has not yet ruled definitively that sexual orientation and gender identity are protected classes under the state’s Declaration of Rights. It is past time for the Court to clarify that LGBTQ people are equal citizens whose rights are constitutionally protected from governmental discrimination.

As we wait to see if the Court will acknowledge this judge’s mistake and reverse the verdict against Antwan Carter, state legislatures across the country are considering and even passing laws aimed at further restricting voting rights. In a country where so many people don’t have a meaningful right to participate in civic life, either because of incarceration or prior conviction even if they have served their sentence has been served, or because of disability, or even blatant discrimination based on race or gender or sexual identity, we must remain vigilant as we continue to fight for full citizenship for everyone.

Learn more about the case, Commonwealth v. Carter

[1] Peters v. Kiff, 407 U.S. 493, 503 (1972) (Marshall, J., plurality opinion).

[2] Peters v. Kiff, supra, at 503–04.