Reverse-Batson: Did Harvey Weinstein Discriminate in Jury Selection

On Monday morning a jury of five women and seven men will return to the courtroom to continue the work that they have been a part of for nearly a month now. With the prosecution now having rested its case, the defense for Harvey Weinstein has begun to swing into action as the first witnesses have been called to testify on his behalf. Already, the controversy over the jury has hit news several times. From a supermodel that was likely dismissed both due to her celebrity status and because she knew both the defendant and several witnesses to a juror dismissed over a public tweet about jury service, the entire ordeal of jury selection in such a high profile case was widely reported in the news earlier this year. In the case of the dismissed juror, his tweet, although only obliquely referencing the fact that he was potentially serving on a high-profile case, was enough for the judge to counsel him to return next month "with an attorney to show cause why you should not be held in contempt."

Perhaps most interesting, however, has been the concern that the defense may have been stacking the jury in such a way as to eliminate the possibility of white female jurors who might sympathize with the white female victims of Harvey Weinstein. In the end, exactly half of the jury were white men, like Weinstein. Of the remaining six people, one is a black man and the other five are women. Although the lead defense attorney for Weinstein, Donna Rotunna, claimed that the challenges "had nothing to do with race or sex," the prosecution claimed that the defense was using its peremptory challenges to systematically eliminate every young white woman on the jury and, in fact, that the defense had objected to every single white woman. In the end, two jury spots were filled with white females–both of which came after the defense had used all of its possible peremptory strikes. One of these jurors, a novelist, the defense unsuccessfully attempted to strike for-cause because she had failed to specify that her upcoming book focused on relations between young women and 'predatory' older men.

The prosecution's objections as to the defense counsel's use of peremptory strikes serve to pave the way for a potential reverse-Batson challenge, where the prosecution accuses the defense of using its peremptory strikes in a discriminatory way that is motivated by the race or sex of the prospective jurors. Six years after the Supreme Court held that prosecutors could not use peremptory strikes to exclude potential jurors based on their race, the Supreme Court applied this same standard to the defense and held that the use of racially discriminatory peremptory challenges by the defendant violated not only the rights of potential jurors but undermined the integrity of the judicial system as a whole.

This case is somewhat unusual in that the alleged discriminatory strikes where not based on race or sex alone–in fact, the defense showed preference for white males and allowed three non-white females to be seated without complaint. It is specifically white females jurors to whom the defense objected. Whether this issue sees further litigation will likely depend on the outcome of the Weinstein trial, which will largely hinge on the jurors' perceptions of the credibility of the women who accused Weinstein of sexual assault many years after the conduct occurred. If convicted, Harvey Weinstein could face the rest of his life in prison, as the highest charge (felony predatory sexual assault) carries a possible maximum sentence of life in prison.