Equal Treatment

With Donald Trump's first criminal case under way in New York, and with the case well into jury selection as this is written, it's unfortunate that the public cannot view that process, formally known as “voir dire.” Sometimes some surprising things can happen.

Just ask Carolyn Bobb. In January, 1982, Bobb appeared for jury duty in the Monterey County, California, Municipal Court. When she took her place in the jury box for a criminal case, the judge asked some questions of other prospective jurors and then reached Ms. Bobb.

In response to some preliminary questions, Bobb revealed that she was an attorney. When the judge asked whether she practiced criminal law, she responded that her practice was limited to bankruptcy.

That may have been the first tip-off something might go awry — there are no juries in bankruptcy cases.

The judge next asked her if there was “a Mr. Bobb.” At that point, she bridled a little, responding, “I have some difficulty with that question because I've noticed only the women have been asked to answer that.”

The judge, heedless of the deep water into which he was wading, actually said, “Yes, I know,” but persisted, “Do you have a Mr. Bobb — is there a Mr. Bobb?”

At this point, she inquired whether the judge was going to ask the male jurors the same thing. He first ordered her to answer, and when she still refused, threatened to hold her in contempt, adding, “You're an attorney, you understand these rules, don't you?” She responded, “No, I do not understand why only the women are asked certain questions and the men aren't asked the same questions.”

The judge asked her about a husband again. When she flatly refused to answer, he held her in contempt.

And then, in front of the other jurors, he had her placed under arrest. She was taken to a holding facility for transfer to the county jail, but after about 15 minutes, the judge released her on condition that she return that afternoon for sentencing.

When Ms. Bobb showed up for sentencing, she and the judge had more discussion about her refusal to answer the question — during which the judge acknowledged her sincerity. But he sentenced her to one day in jail, with credit for the “time served” in the holding cell that morning.

That was not, however, the end of the case. Ms. Bobb first appealed her conviction to the superior court, and when that court upheld it, took it to the court of appeal. This provoked an unusual split of opinion — two of the three judges agreed that her conviction was wrong, but for entirely different reasons.

In its main opinion, the appeals court concluded that the judge violated Ms. Bobb's rights under the Equal Protection Clause of the California Constitution. It analogized her situation to a case heard by the United States Supreme Court in 1964.

In that case, from Alabama, a black woman had refused to answer questions so long as the opposing attorney insisted on addressing her only by her first name. In overturning her contempt conviction, the Supreme Court said that the attorney's insistence on using her first name was a “relic of slavery.” The court concluded that in Ms. Bobb's case, there was similarly no constitutional basis to ask questions about marital status only to the women on the jury panel. Bobb had therefore been within her rights to refuse to answer, and her contempt conviction accordingly had to be overturned.

Justice J. Anthony Kline agreed with this result, but would have gone further — he believed her conviction improper even if the questioning had been constitutional. To his mind, the issue “relates more to the proper treatment of jurors than the rights of women.”

Kline found that Bobb's conduct was similar to cases in which a person had a religious or moral objection to participating in a court proceeding. In one case, for example, a juror cited the Biblical injunction, “Judge not, so you will not be judged.”

For Kline, the critical points were, first, that Bobb had been sincere in her reasons for refusing to answer; and second, that she was willing to answer if both men and women were asked the same questions. If a person could be excused from service altogether, Kline reasoned, then someone should not be held in contempt for simply refusing to answer a question.

So, even though the legal basis was a little muddled, Bobb's conviction was set aside. One thing, however, was clear: refusing to answer a judge's questions is a foolproof way to avoid jury service — but one not likely to be followed by many people.