Two men convicted in Prince George's County for murder in the shooting death of James Stanley Bias two years ago will now have to be retried because the prosecutor bumped some women off the jury because they were women. So ordered the Court of Appeals last month.
The immediate result of this decision is that the murderers will probably be out on bond soon and that a few hundred thousand dollars of taxpayers' money will be spent on a new trial. The longer range result may be that an element of Anglo-American jurisprudence of hundreds of years duration may disappear in Maryland. That is the right of lawyers to use so-called "peremptory" challenges dismissing prospective jurors without cause if they believe such jurors are less likely than others to be persuaded by their arguments.
The U.S. Supreme Court ruled in 1986 that using such challenges to jurors on the basis of race was unconstitutional. But it has never ruled that such challenges on the basis of sex was. The trial judge in Prince George's and a unanimous three-judge panel of the Maryland Court of Special Appeals rejected the sex-based argument. But the Court of Appeals by a vote of 4-3 said that since Maryland has a sex-based Equal Rights Amendment to its Constitution, lawyers may not excuse a juror solely on the basis of sex.
It is a decision that only a legal pedant (or a criminal defense lawyer) could love. The Supreme Court made clear in its 1986 decision what the wrong was that it had in mind: "The Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."
Nothing like that was involved in the P.G case. Two men were on trial. The prosecutor wanted as many male, older jurors as he could get. But not only such jurors. In fact, the trial jury was composed of eight women and four men, and the three alternates were all women. If the prosecutor had not used peremptory challenges to excuse some women, the jury would have been all women.
In Maryland, a lawyer may not now peremptorily excuse blacks just because they are blacks, whites just because they are white, women just because they are women, men just because they are men or, perhaps, any individual members of any class or category of citizens. That is probably true even if not using such challenges in particular cases would produce the specific wrong the Supreme Court set out to abolish -- all-white juries trying black defendants. It is perhaps true that the peremptory challenge will soon be a memory in Maryland. It is hard to see how this decision advances the cause of jurisprudence or justice -- in general or in the murder case that precipitated it.