Gender Stereotypes Shape Jury Strategies

Article excerpt

James Paul Linn likes women. He likes the way they think. He likes the way they respond to him. And when they are in a jury box, Linn said, he can usually get his client off the hook.

That, said the defense lawyer in Oklahoma City, is why he has spent the last 42 years trying to pack his juries with women.

"Gender makes a big difference when you're picking a jury," he said. And after four decades of assembling these panels, he has his own sex-based rules of thumb, some of which go like this: Women are more compassionate than men in most criminal cases, but they can be ruthless when it comes to sex crimes. Men tend to be harder on defendants. Heterosexual men tend to respond negatively to gay men. Homosexuals, men and women alike, are sympathetic to mistreatment. ("Like black people, they are sensitive to injustice because they have had a lot of it put on them.")

Those differences _ real or perceived _ were very much on the public's mind when 12 jurors in Los Angeles deadlocked in the case of Erik Menendez, one of two brothers accused of killing their parents.

Like a grade-school contest, the jury split "girls against boys." The six women voted to convict the 23-year-old Menendez of manslaughter. The six men voted for murder. The split by sexes, jurors later told reporters, was not a coincidence.

Sympathetic, victim-sensitive women. Money-conscious, merciless men. Rightly or wrongly, these are the kind of stereotypes that trial lawyers have come to rely on in both criminal and civil cases. Sometimes they hold true. Sometimes they don't.

Regardless, they are, in part, what kept women (and blacks) off juries in this country until well into the 20th century. And they are now at the heart of a debate gathering steam in courtrooms and living rooms across the country over how much a juror's sex affects how he or she votes.

Last fall, the Supreme Court heard arguments in an Alabama paternity and child-support case in which the state used its peremptory challenges to strike men from the panel. The all-female jury decided in the government's favor, and lawyers for the man cried foul.

The court has been asked to decide the constitutionality of excluding jurors solely on the basis of their sex.

Exclusions based on race, instead of sex, are already forbidden. But those in the business of guessing how jurors will vote still try to pick them with those characteristics in mind.

In many cases, the assumptions are predictable. In sexual abuse and harassment cases, paternity suits or lawsuits alleging bias, trial lawyers agree that women are usually more friendly to the plaintiffs.

While there are always exceptions, "my experience is that in a sexual harassment case, it's easier to explain it to women," said Roxanne Barton Conlin of Des Moines, the former president of the Association of Trial Lawyers of America.

On the other hand, prosecutors tend to like male jurors for trials involving complicated financial dealings, or when a conviction might lead to the death penalty or a long prison term. "If you want to punish someone, and you find them guilty, men will punish them," said David B. Graeven, a trial consultant in San Francisco.

But some of the stereotypes trial lawyers live by an surprise people who don't spend much time in court. …