Few cases today actually go to trial. However, the ones that do go to trial involving juries necessarily mean that a jury has to be picked first. Jurors aren’t so much picked as they are eliminated. With respect to jury selection, there are three kinds of jury challenges. First, there is a peremptory challenge. Peremptory challenges are challenges made by an attorney for any reason whatsoever. That is, the attorney, depending upon the jurisdiction, has a certain number of challenges they can use for whatever reason they want and no explanation is necessary. For example, if an attorney did not like the color of a prospective juror’s shirt, it is theoretically possible that the attorney could use a peremptory challenge to eliminate that person from the jury pool. The second kind of challenge is a challenge for cause whereby an attorney can exercise a challenge if he or she can convince the court that the prospective juror is hopelessly biased. For example, a prospective juror that is totally opposed to the death penalty would be able to have a challenge for cause exercised against him or her if that prospective juror was serving on a capital murder case. Finally, there is something called a Batson challenge, which comes from the case of Batson v. Kentucky, which has its civil equivalent in Edmondson v. Leesville Concrete Company, Inc., 500 U.S. 614 (1991). In a Batson challenge, an attorney that is using peremptory challenges to exclude jurors based on a prohibited characteristic, such as race or gender, can be challenged by the other attorney to show cause to the court as to why the peremptory challenges are being used in that way. If the explanation the attorney gives the court for using the peremptory challenges in that way is not sufficient for the court, then the court can impose penalties upon the attorney using the peremptory challenges in the discriminatory fashion. The question that this blog entry deals with is whether Batson challenges can be used when a prospective juror is one with a disability.

Batson challenges can only be used on behalf of a person falling into the equal protection class of intermediate scrutiny or strict scrutiny. See Batson v. Kentucky, 476 U.S. 79, 96 (1986). As mentioned in a previous blog entry the equal protection class that persons with disabilities fall into depends upon the fact of the case. In the third edition of my book, I spend a great deal of time talking about statutes that discriminate against people with disabilities wanting to serve as jurors. I also talked about peremptory challenges and Batson.

With respect to statutes that allow for discrimination against persons with disabilities in jury selection, I argued that the supremacy clause trumps any state statutes allowing for such discrimination. With respect to Batson challenges, I argued that Tennessee v. Lane, 541 U.S. 509 (2004), and the reasoning contained therein necessarily led to the conclusion that Batson challenges would be permissible when exercised on behalf of a person with a disability. Did I get it right?

Of course, I happen to think that I did get it right. However, I am not the final authority. What are the courts saying in decisions on this issue after Tennessee v. Lane. The issue has simply not come up much. However, it did arise in 2007 in the D.C. Circuit Court of Appeals. In that case, U.S. v. Watson, 483 F.3d 828 (D.C. Cir. 2007), Watson in a protest against the treatment of tobacco farmers by the government, drove a tractor along with a Jeep and a trailer holding a metal box into a pond and remained there for two days. Id. at 829. He also drove a tractor onto an island in the middle of the pond that he had driven into causing a 3 1/2 foot wave. Id. Finally, when Park service employee caught up with him and noted a metal box, he implied that the chemicals in the metal box were an explosive and that he was willing to die for his cause. Id. He was then indicted for threatening and conveying false information concerning the use of an explosive and for destruction of government property. Id.. During jury selection, the prosecutor used peremptory challenges to eliminate from the jury pool two visually impaired prospective jurors. Id. Watson’s attorney essentially exercised a Batson challenge. Id. at 829-830. However, the District Court overruled the challenge saying that there was a substantial amount of visual evidence in the prosecution’s case. Id. at 830.

On appeal, Watson argued that the Batson challenge should have been granted. Rejecting that claim United States Court of Appeals for the District of Columbia Circuit argued as follows. First, the court said that disability has never been given strict scrutiny by the Supreme Court. Is this true? The answer is sort of. That is, the case that the court immediately cites to, City of Cleburne v. Cleburne Living Center, Inc. is a case where the U.S. Supreme Court claimed that they were using rational basis to find that a group home for persons with mental retardation had a right to be located wherever it wanted to be. However, unlike most cases involving rational basis, the U.S. Supreme Court engaged in a very extensive discussion of the discrimination faced by those with mental retardation and then threw the restriction out. Cleveland v. Cleburne living Center, Inc. 473 U.S. 432, 446-50. It is probably more accurate to say that this decision about a rational basis plus case rather than just regular rational basis. Id. at 456, 458 (Justice Marshall, concurring and dissenting in part)

Second, Tennessee v. Lane specifically says that they’re going to be situations where persons with disabilities will fall into at least intermediate scrutiny classification if not higher. More specifically, U.S. Supreme Court said: “title II is aimed at the enforcement of a variety of basic rights, including the right of access to the court at issue in this case, that call for standard of judicial review at least as searching, and in some cases more searching, then the standard that applies to sex-based classification.” [Italics added] Tennessee 541 U.S. at 529.

Third, the Watson court cited to language from the Cleburne decision where the Cleburne court referred to the mentally retarded and how singling out the retarded for special treatment reflected the real and undeniable differences between the retarded and others. Watson 438 F.3d at 831 (citing to City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442-44 (1985). Accordingly, the U.S. Supreme Court declined to presume that any classification drawn on the basis of disability was the result of unconstitutional discrimination. Id. at 446. However, the citation to this language of Cleburne is not without its own problems. First, the language of that opinion is quite jarring to persons with disabilities and to those who are familiar with the terminology vis a vis persons with disabilities. For example, the Cleburne court uses the phrase, “mentally retarded.” That is a phrase that has not been used for some time with respect to people sensitive to terminology regarding persons with disabilities. For quite a while, the phrase used was a, “person with mental retardation.” Now, even that phrase is passé. Rather, now the phrase being used is a, “person with intellectual disabilities.” Second, the Cleburne decision came down five years before the Americans with Disabilities Act was even signed by the first George Bush and seven years before the Americans with Disabilities Act went into effect. Third, the original Americans with Disabilities Act contained language within it, as mentioned in earlier editions of my book, that suggested Congress intended for persons with disabilities to fall into an equal protection class higher than rational basis.

Fourth, the Watson court said that the U.S. Supreme Court has declined to treat disabled as a suspect class because they recognized the reality that states may have legitimate reason for treating differently persons with reduced ability to perform certain functions. Id. at 832. However, this ignores the reality that title II of the Americans with Disabilities Act And the Rehabilitation Act of 1973 both demand that governmental entities make reasonable modification to their programs and activities so that persons with disabilities can reach the same starting line as people without disabilities.

Fifth, the court went on to say that it would follow U.S. v. Harris, 197 F.3d 870 (7th Cir. 1999), which held that persons with disabilities were in the rational basis class, and therefore, a litigant who was otherwise able to exercise a Batson challenge could not do so. Of course, the problem with following this particular case is that it predates the Americans with Disabilities Act.

Finally, the Watson court did give a ray of hope so to speak with respect to challenging peremptory challenges against prospective jurors with disabilities. More specifically, they said that the attorney challenging the peremptory exclusion of the blind jurors did not offer any expert opinion, even in secondary form, that a blind juror would be able to fully assess the strengths and weaknesses of the government’s visual evidence. Watson 483 F.3d at 834. For that matter, the attorney challenging the peremptory challenges did not suggest any means of accommodating blind jurors, much less request that the government provide an accommodation by presenting, by way of example, descriptive oral testimony of the scenes and events depicted in the videotapes. Id. At 834-835.

In short, can a person use Batson to challenge the exclusion of prospective jurors with disabilities. I still remain convinced that it can and that Watson has difficulty withstanding in-depth analysis. Regardless, Watson creates an opening for attorneys to successfully use Batson challenges on behalf of persons with disabilities if they are willing to make the effort to put an expert on the stand as to how persons of various disabilities would be able to do their jobs as jurors effectively and by showing that all the prospective juror with a disability needs is certain specified reasonable accommodations/modifications in order to do the job of a juror effectively. In other words, if you are an attorney on the opposing side of an attorney using peremptory challenges to eliminate persons with disability from the jury pool, a two-step process is suggested. First, argued that Batson challenges are permissible. Second, in conjunction with or in addition to that argument, have an expert ready to be called who can discuss how people of various disabilities process information and what specific accommodations they need in order to do so. Finally, if the court refuses to allow the accommodations, argue violation of title II of ADA and since the court no doubt accepts federal funds as well, argue violation of the Rehabilitation Act of 1973.