Women and Jury Service

From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book

Revision as of 22:36, 13 August 2010

In A Place in the Palladium: Women's Rights and Jury Service, 61 U. CIN. L. REV. 1139 (1993), I describe women’s quest for jury service “as one facet of a greater struggle for recognition in the public life of the community.” I think it is important to see the fight for jury service as one with that for the vote and for entry into the legal profession. The same arguments were made against women doing each of the three, the same women fought for all three. The unity of the causes, or at least their close connection, seems to me both to reflect the history accurately, and to be a useful explanatory tool. On the other hand, Cristina Rodriguez, Clearing the Smoke Filled Room: Women Jurors and the Disruption of an Old-Boys’ Network in Nineteenth Century America, 108 YALE L. J. 1801 (1999) urges that disaggregating jury service from suffrage helps analyze the objections to women in the courtroom. She does, however, acknowledge a strong nexus between women being lawyers and serving on juries. Though I don’t agree with the disaggregation thesis, this is an excellent discussion of the cases and scholarly treatment of women jurors, an is especially interesting and insightful on the Washington and Wyoming experiences. See Gretchen Ritter, Jury Service and Women’s Citizenship Before and After the Nineteenth Amendment, 20 L. HIST. REV. 479Autumn (2002), for an account of the litigation and arguments over whether the federal suffrage amendment necessarily implied the duty or right of women to perform jury service. In Women's Jury Service: Right of Citizenship or Privilege of Difference, 46 STAN. L. REV. 1117 (1994) Joanna Grossman illustrates how the jury service campaign, which originated in the nineteenth century women’s rights movement, argued from principles of representativeness and citizenship – that a woman defendant had a right to a representative jury of her peers, and that all women had a right to serve on juries as a privilege of citizenship. Note, Beyond Batson: Eliminating Gender-Based Peremptory Challenges, 105 HARV. L. REV. 1920, 1924-27 (1992) also contains an account of the history of women’s jury service. For a good historical summary of stereotypes of women jurors, see Carol Weisbrod, Images of the Woman Juror, 9 HARV. WOMEN'S L.J. 59 (1986). Gretchen Ritter’s THE CONSTITUTION AS SOCIAL DESIGN (2006), Deborah Rhode’s JUSTICE AND GENDER 48-50 (1989) and Linda Kerber’s NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1999) also cover women’s historical exclusion from juries and successful feminist challenges to restrictive jury service laws from the nineteenth to the late twentieth centuries.

In Women Defenders in the West, 1 Nev. L. J. 1 ( 2001), WLH website; see article for detailed footnotes, I wrote about the connection between women as criminal defense lawyers and women serving on juries.

Women Defenders and Women Jurors

The women lawyers themselves were not the only ones who would be defiled by allowing women to defend in criminal cases. Other women, symbolically and actually, would be corrupted. The opponents had several well-elaborated arguments about how this would occur. First was the assumption that once women invaded the courthouse as lawyers, then the only way to offset their bad effects on justice, would be to put women on juries. “Upon such a panel the woman lawyer’s seductive and persuasive arts would be wasted.”

Though this argument -- that women lawyers would produce women jurors-- might initially appear far-fetched, it gained credibility from the women lawyers themselves. Clara Foltz and Laura Gordon, Lelia Robinson and Lavinia Goodell were working for the day when women would be jurors. Becoming lawyers, and serving on juries were joined as causes, along with voting, in the movement for equal citizenship.

To their male adversaries, the prospect of women jurors was as ugly as that of women lawyers. Jurors, like the women lawyers would be degraded—first by the evidence they would be forced to hear in criminal cases—“ all the unclean,” etc. Even worse, they would hear this evidence in the forced company of men. Also raised was the specter of the woman mingling in a new social relationship with men in that most intimate setting: the jury box.

Another set of arguments against women jurors had to do with their competence. These arguments were not perfectly consistent. First it was said that women had special expertise, and could help the jury overcome the feminine wiles of women lawyers. On the other hand, some adversaries urged that women as jurors would tend to support their fellow women; and often in the same breath, that jurywomen would vote for the handsomest man. Either way, the argument was that women jurors would not be deciding on the basis of the evidence.

The contentions were often reduced to a syllogism: women lawyers will bring on women jurors (and that’s what you strong-minded women want ); women jurors will be defiled by hearing dirty evidence and by being sequestered with male strangers; therefore there should be no women lawyers. All of the early women defenders met this argument repeatedly. Few of them were able to refute it from actual experience with women jurors. Thus, when Clara Foltz passed through Washington Territory on a lecture tour, she rushed to the courthouse as soon as she arrived in Seattle—in order to see the wondrous sight, and to experience the vision of mixed juries that had drawn Lelia Robinson across the continent.

The sight – the “grand evidence of progress” -- moved her so much that Foltz ”had hard work to maintain my self-control.” Responding to the common claim that that there was something indecent, even lewd, about a woman being on the jury, Foltz went on to describe one of the "ladies of the jury: a motherly-looking, intelligent woman, with hands encased in cotton gloves and bonnet strings tied snugly under her chin, listening with conscientious intent to the argument. This earnest woman,” Foltz continued indignantly, was "the reality, the fiction of which has been made the theme of ribald jest and unseemly denunciation for lo! these many years."

Wyoming and Washington Territory

A contemporary article,which argued that jury service should follow from the grant of suffrage also discussed why the western states were quicker to grant the vote than the rest of the country. Constitutional Obligations and Woman’s Citizenship, 45 CENT. L.J. 244 (1912). Grace Raymond Hebard, The First Woman Jury, 8 J. Am. Hist. (1913) tells of first petit jury on which women served in Wyoming. Women were granted suffrage by statute in Washington Territory in 1883, after a persistent campaign over some years. T.A. Larson, The Woman Suffrage Movement in Washington, 67 PAC. NW. Q. 49 (1976). Immediately after gaining suffrage, women started serving on grand and petit juries under a statute which required that members of petit juries be electors and grand jurors be electors and householders. The grand juries with women on them returned numerous indictments against various forms of vice. In a series of criminal appeals, convicted defendants objected to the composition of grand juries which included women. The first line of attack was on the householder requirement and the first case to reach the appellate court was against Mollie Rosencrantz accused of running a brothel. Rosencrantz made the argument that married women could not be householders within the meaning of the statute. She lost that case with the court upholding women grand jurors in a strongly positive opinion about women’s rights. Rosencrantz v. Territory, 2 WASH. TERR. 267, 5 P. 305 (1884). Lelia Robinson was on the brief attacking women’s right to serve on grand juries, representing Mollie Rosenkrantz. Ruefully she explained that “my business associations made it necessary.... so that while my sympathies were on one side of the question, my work was done on the other, as sometimes must happen.” Lelia J. Robinson, Letter to the Equity Club, 1887, reprinted in Virginia Drachman, Women Lawyers and the Origins of Professional Identity in America 66 (1993). Robinson was maintaining the ideal of law practice in raising all a client’s valid points even if they conflicted with the attorney’s own beliefs. Women, moreover, could not succeed as lawyers if they refused to argue certain issues, especially ones like the illegal constitution of a grand jury which could be useful to many clients.

Less than three years after the victory for women grand jurors, there was a change in the personnel of the Court. That and the persistent appeals of defendants challenging women grand jurors led to an effective reversal of Rosenkrantz. In Harland v. Territory, 3 WASH. TERR. 131, 13 P. 453 (1887), a judge who had vehemently dissented in Rosenkrantz wrote the majority opinion holding that the underlying statute giving women suffrage was unconstitutionally drafted, and thus women did not meet the elector requirement for grand jury service. Lelia Robinson wrote her article on Women Jurors before Harland was decided. 1 CHI. L. TIMES 22, 33 (case was reported pending). It would have been interesting to see her comment on the use of her own case in Massachusetts refusing her admission to the bar for the proposition that sweeping change must be made by explicit legislation. The court also cited from Myra Bradwell’s Supreme Court case for this view. 3 WASH. TERR. 131, 140-42 (1887).The next term of a legislature elected with women voting passed a new woman suffrage statute. But in a case widely believed to be set up and financed by the liquor interests, the wife of a saloon-keeper sued officials she said refused her vote, and the new suffrage statute was also found unconstitutional. Bloomer v. Todd, 3 WASH. TERR. 599, 19 P. 135 (1888). The next year, a constitutional convention composed of men chosen without woman suffrage, decided that Washington would enter statehood with a constitution that limited the vote to men. The whole legal story is told very clearly in Aaron H Caplan, The History of Women's Jury Service in Washington, 59 WASH. ST. BAR NEWS March 2005 (a Loyola Law School Legal Studies Paper, No. 2008-22) (abstract available at http://ssrn.com/abstract=1184048) (visited July 28, 2008).