Ex Parte Dysart

"InBatson, the Supreme Court held that the equal protection clause of thefourteenthamendment prohibits a prosecutor from exercising peremptory challenges on the basis of a venireperson's race.476 U.S. at 89,106 S.Ct. at 1719. We now address the question whether the principles established inBatsoncompel us to prohibit the exercise of peremptory challenges on the basis of the venireperson's gender. At the outset, however, we must note that the constitution treats gender classifications differently than racial classifications. While the constitution will not allow racial classifications unless they are suitably tailored to serve a compelling state interest, the constitution tolerates gender classifications that are substantially related to the achievement of important governmental objectives. SeeCity of Cleburne v. Cleburne LivingCenter,473 U.S. 432,440-41,105 S.Ct. 3249,3254-55,87 L.Ed.2d 313(1985) (discussing the different levels of constitutional scrutiny to which different classifications are subjected). Peremptory challenges are a necessary means for achieving the important governmental objective of impaneling a fair and impartial jury. SeeSwain v.Alabama,380 U.S. 202,211-12,85 S.Ct. 824,831-32,13 L.Ed.2d 759(1965);Batson,476 U.S. at 123,106 S.Ct. at 1737(Burger, C.J., dissenting). A party is not always able to justify his sudden and immediate impression that a particular venireperson will be partial. See id.;Lewis v.United States,146 U.S. 370,376,13 S.Ct. 136,138,36 L.Ed. 1011(1892).

"But challenges explained by a venireperson's gender are not based on a party's sudden impression of a particular venireperson's ability to be impartial. Rather, like racial challenges, they are based either on the false assumption that members of a certain group are unqualified to serve as jurors,Batson,476 U.S. at 86,106 S.Ct. at 1717(citingNorris v. Alabama,294 U.S. 587,599,55 S.Ct. 579,584,79 L.Ed. 1074(1935)), or on the false assumption that members of certain groups are unable impartially to consider the case against a member or a non-member of their group, cf.Batson,476 U.S. at 89,106 S.Ct. at 1719(assumption that members of a certain group are unable to consider a case against a member of their group is false). Peremptory challenges exercised on the basis of a venireperson'sPage 547gender, therefore, are not substantially related to achieving an impartial jury. See id. at 98-99,106 S.Ct. at 1723-24(prohibiting discriminatory peremptory challenges will not undermine the contribution of peremptory challenges to the administration of justice).

"In addition to their failure to relate substantially to the important governmental interest of an impartial jury, gender-based peremptory challenges also fail to relate substantially to other important governmental interests including public confidence in the judicial system and the absence of community prejudice. Racial discrimination during jury selection harms the excluded venirepersons, undermines public confidence in the judicial system, and stimulates community prejudice. Id. at 87,106 S.Ct. at 1718. Because gender discrimination during jury selection is not substantially related to the achievement of an important governmental interest, thefifthamendment's equal protection principles compel us to prohibit peremptory challenges on the basis of gender.

"Peremptory challenges based on gender, like those based on race, harm the excluded venireperson because discriminatory challenges are based on group membership whereas juror competence depends upon an individual's qualification. Id. Just as 'a person's race simply "is unrelated to his fitness as a juror," ' id. at 99,106 S.Ct. at 1724(quotingThiel v. Southern Pac. Co.,328 U.S. 217,227,66 S.Ct. 984,989,90 L.Ed. 1181(1946) (Frankfurther, J., dissenting)), so too a person's gender is unrelated to her ability to serve as a juror.Taylor v. Louisiana,419 U.S. 522,537,95 S.Ct. 692,701,42 L.Ed.2d 690(1975). Gender bears no relationship to an individual's ability to participate on a jury. Cf.Frontiero v. Richardson,411 U.S. 677,686,93 S.Ct. 1764,1770,36 L.Ed.2d 583(1973).

"Furthermore, full community participation in the administration of the criminal justice system, whether measured by race or gender, is critical to public confidence in the system's fairness. SeeTaylor,419 U.S. at 530,95 S.Ct. at 697. A jury is not truly representative of the community unless both sexes have the same opportunity to serve. SeeBallard v. United States,329 U.S. 187,193-94,67 S.Ct. 261,264-65,91 L.Ed. 181(1946). The exclusion of men, or of women, is as incongruous with traditional notions of the jury as a representative body ' "composed of the peers of equals of the person whose rights it is selected or summoned to determine," 'Batson,476 U.S. at 86,106 S.Ct. at 1717(quotingStrauder v. WestVirginia,100 U.S. 303,308,25 L.Ed. 664(1880)), as exclusion of a racial minority.

"And, just as racial discrimination in the judicial system is a stimulant to community prejudice that impedes fair treatment for racial minorities,Batson,476 U.S. at 87-88,106 S.Ct. at 1718-19, so too is gender discrimination in the judicial system a stimulant to community prejudice which impedes fair treatment for women. SeePersonnel Administrator v. Feeney,442 U.S. 256,273,99 S.Ct. 2282,2293,60 L.Ed.2d 870(1979) (like classifications based on race, gender classifications have traditionally been the touchstone for pervasive and often subtle gender discrimination).

"We conclude, therefore, that equal protection principles prohibit peremptory challenges exercised on the basis of a venireperson's gender."