by Grace Mead
Justice Scalia: But the prosecution isn’t limited to striking jurors based solely on their prior illegal acts, is it?
Farrar: No, Justice Scalia, but I respectfully submit that the prosecution cannot strike jurors based solely on their sexual orientation.
Justice Scalia: How is this any different from the question of whether the prosecution can strike a juror with a fifteen-year-old criminal conviction? Why isn’t it a question of state law for state courts?
Farrar: Justice Scalia, it’s different because the prosecution was attempting to insulate the jury from the view of a representative member of the community so the jury would be more likely to consider the defendant’s sexual orientation as reflecting negatively on his truthfulness.
Justice Scalia: The prosecution is excluding a representative member of the community whenever it exercises a preemptory strike, isn’t it? And what do you mean by “representative”? Does the jury need mirror the demographics of the local population?
Farrar: Yes, every strike does exclude a potential juror, but not based on the defendant’s sexual orientation.
Justice Roberts: Mr Farrar, did the trial court undertake the sort of inquiry that we’ve mandated in the Batson line of cases to determine whether the prosecution has correctly excused a minority juror?
Farrar: No, Justice Roberts, the trial court did not reach that question.
Justice Roberts: Even if we ruled in your favor, why wouldn’t we remand to the trial court to make that determination based upon whatever factual findings it makes after following the sort of inquiry we’ve mandated in the race and gender cases?
Farrar: Your Honor, two points. First, any advantage that the trial court had at the time of jury selection in this case has diminished with the passage of time. Judge Masterson evaluated the demeanor of these lawyers and jurors years ago.
Justice Roberts: But on remand couldn’t Judge Masterson ask the prosecutor why he or she exercised the preemptory strike?
Farrar: That’s correct, Justice Roberts, but so can you. Mr Thibedeaux was the prosecutor in the trial court. And I would suggest that the evidence is overwhelming in this case that the prosecution struck the juror because of his sexual orientation. First, the prosecution readily approved other jurors who indicated they would be less likely to believe a gay witness. Second, as we spell out in our brief, the prosecution engaged in one-sided and slanted questioning about minimum penalties and the death penalty that this Court has previously found suggest a bias based on the race or sex of jurors. Finally, the sexual orientation of the defendant and the likelihood he would be victimized based on that sexual orientation were the central issues in this case. It would be as if the prosecution had struck every black juror in the murder trial of an African-American defendant accused of killing a Klansman.
Justice Roberts: But in the race and sex cases, we also look at how the prosecution handled other black or female prospective jurors. Can you present any evidence that the prosecution exercised preemptory challenges against multiple gay jurors?
Farrar: No, Your Honor, but we suggest that’s simply because gays are only about four percent of the population. I submit it would be a perverse result to rule that because there are fewer members of a minority, it should be more difficult to prove discrimination against that minority. I’d like to reserve some time for rebuttal.
Justice Roberts: Very well, Mr Farrar. Mr Thibedeaux, we’ll hear from you now.
Thibedeaux: In every state and the federal system, the prosecution and defense have the power to strike jurors for any reason whatsoever. The principal check in the process is that each side receives the same number of preemptory challenges. And the prosecution and defense traditionally maneuver to choose jurors that may be to their relative advantage based upon intangibles ranging from demeanor, to tone of voice, to facial expression, to posture. Race and gender are narrow exceptions that, not surprisingly, are subject to stricter scrutiny under all of this Court’s constitutional jurisprudence.
Justice Ginsburg: Mr Thibedeaux, Mr Farrar and Mr Durant suggest that the trial court erroneously refused to excuse for cause several jurors who expressed the opinion gay witnesses were less likely to be truthful. What do you make of that argument?
Thibedeaux: I dispute both its accuracy and relevance. Mr Farrar neglected to mention those jurors also testified they could follow an instruction to disregard the witness’s sexual orientation in determining his truthfulness. And Judge Masterson gave such an instruction.
Justice Ginsburg: Mr Durant did mention it in his brief.
Thibedeaux: He mentioned it in passing without explaining how the instruction was insufficient. There’s a strong presumption jurors follow instructions in both state and federal courts. I also believe the issue of whether a juror should be excused for cause is a question of Louisiana state law to be decided by Louisiana courts, just as if a juror expressed an opinion about prosecutors generally, criminal defense attorneys generally or police officers generally. The federal Constitution shouldn’t arbitrate those disputes.
Justice Ginsburg: Can you agree that a refusal to excuse a juror for cause would violate due process if the juror said he or she would convict the defendant regardless of the evidence or law?
Thibedeaux: In the most egregious case, it could violate due process. But that’s not what happened here. This case is the precise opposite of your hypothetical. The jurors who expressed doubts about the truthfulness of homosexuals also said they could follow an instruction not to consider the witness’s sexual orientation. And those close questions about whether a juror should be excluded for cause should be decided by state trial courts applying state law.
Justice Kennedy: What reason was there for excusing the prospective juror who was gay other than his sexual orientation?
Thibedeaux: Justice Kennedy, I didn’t believe he could follow the instructions regarding the minimum sentence in the case or necessarily divorce the application of the death penalty from his political views.
Justice Kennedy: But that was based on the sort of onesided questioning about potential sentences that we’ve condemned in our race and gender cases, correct?
Thibedeaux: It was based on my perception that the witness was unwilling to apply the minimum sentence or the maximum sentence. In this case, that sentence was death.
Justice Kennedy: Did the gay potential juror testify about whether or not he could follow instructions regarding the maximum and minimum sentences?
Thibedeaux: I don’t recall, Your Honor.
Chief Justice Roberts: Your time has expired, Mr Thibedeaux. Mr Farrar, you have two minutes for rebuttal.
Farrar: Mr Chief Justice, and may it please the Court. The name of the juror Mr Thibedeaux excluded was Mr Whitley. At page P459, Mr Whitley testified, quote, “If the judge instructed me if we reached certain factual conclusions, the defendant should be executed under the laws of the state of Louisiana, then I would make the necessary findings without regard to my opinions on the death penalty.” End quote. At page P450, Mr Whitley testified that he was not aware of the minimum penalty for first-degree murder and that if the judge instructed him that the minimum penalty was life imprisonment, then it would not affect his determination of guilt. So much for Mr Thibedeaux’s strongly held belief that jurors follow instructions.
Mr Thibedeaux, who was personally unwilling to rely on instructions to guide Mr Whitley’s decision-making on this jury, just told this Court such instructions should have been enough to protect Matt Durant from jurors who’d expressed doubt and hostility about Mr Durant’s sexual orientation. Mr Thibedeaux can’t have it both ways. If he believes jurors always follow instructions, he had no legitimate reason to strike Mr Whitley. If he believes jurors don’t always follow instructions, then seating jurors who expressed a bias against gays was wrong.
Unless there are any additional questions, I have nothing further.
The concluding exchange made Matt gasp and he didn’t mind the resulting twinge in his
ribs. Farrar had exploited the synergy between the trial court’s two errors to the maximum and—even better—had shown that Thibedeaux’s reasons for excusing Whitley were disingenuous.
Chapter 29
A week later, Matt lay in his infirmary bed trying to read, when he heard shoes tapping across the linoleum and glanced up to see Lieutenant Dietrich looming. Matt closed the book and placed it in his lap.
“Is this a good time?” Lieutenant Dietrich asked.
Matt nodded. He thought it odd Dietrich would bother to ask.
“The doctor tells me you’re healing well, all things considered. Are you in pain?” The feigned sympathy grated, but Matt kept his facial expression neutral.
“My ribs ache, but they’re getting better.” He gave himself wriggle-room to exaggerate or downplay the pain, depending on whether he wanted or needed to stay in the infirmary.
“The doctor seems to think that you can be released in the next few days. We need to talk about where you’re going next.”
“Am I going to be safe from Parnell anywhere?” Matt asked.
“We control this prison, not Parnell.” Dietrich crossed his arms over his chest. “And I think he’s taken his revenge. You can probably just return to Building 2.”
“You’ve got to be kidding me.” Matt squeezed the book and his knuckles whitened. “Parnell and his goons almost killed me.”
“No one else has said Parnell was responsible for the attack.”
Matt flushed. “Well, you damned well know that anything that happens in Building 2 has to be approved by Parnell.” His pitch rose as he teetered on panic’s edge.
“But Parnell can’t be held responsible for failing to prevent your beating. What are you gonna do—sue him? I don’t think he has any money.” Dietrich sneered.
Matt collected himself, forcing himself to remember that if he won this argument on debaters’ points but angered Lieutenant Dietrich, he would lose everything. “What are my alternatives to Building 2?”
“We should discuss that.” Dietrich uncrossed his arms. “I want to make sure you’re not going to file any nuisance lawsuits against the prison or any of the guards first.”
“Putting aside that the threat itself is probably illegal, you must have talked to someone about the Eighth Amendment case that I told you about,” Matt said.
“We just want to avoid a frivolous lawsuit. You don’t have a right to file a nuisance lawsuit.”
“And if I hypothetically agree not to sue, what are the options?”
“We have an opening in Building 3.”
“Building 3 is Bill’s building. Bill might not hate me personally as much as Parnell, but he hates me enough to put me back in here.” Matt shook his head, the book fell to his lap and his hands shifted to gripping the sheet. “And you know damned well the White Brotherhood hates gays.”
“If you said wouldn’t file a lawsuit and requested it, we could transfer you to one of the solitary confinement cells at Angola.” Dietrich cocked his head to the side.
“Those cells contain the most violent criminals from both prisons.” Matt began kneading the sheet and stared at the wall opposite his bed.
“The only time you’d see other prisoners is when you’re escorted down the hallways. The other inmates won’t have a chance to do anything without being seen by the guards.”
“Guards like Ted?” Matt asked, glanced up at Dietrich, brows raised.
“Ted had an accident,” Lieutenant Dietrich said. “He went to the library and somebody hit him from behind with a table leg. Luther and Reggie were the only ones there. First neither would admit to doing it, then I’ll be damned if they didn’t both admit doing it. We’ve thrown them in solitary, but I doubt that’ll get us an answer.” He paused. “The courts won’t let us keep them there forever anymore as punishment.” Matt wondered if he could ever be safe outside of solitary. Maybe he’d trade the risk of having his mind broken instead of his body, but he also knew in any contest between the two, he’d always choose to preserve his mind.
“What about when Ted returns?” Matt asked.
“He probably won’t. He applied for a job at the Orleans Parish Prison months ago because he wants to move to a bigger city. Word is they’re going to hire him.”
“But will the other guards bother to act quickly enough if something happens? Most of Parnell’s flunkies are here for life, so they might kill me anyway.” Matt looked Dietrich in the eyes, thinking perhaps this conversation was headed toward keeping him safe from at least one threat.
“I have to say that the guards will be more watchful if you don’t do anything to threaten this institution.”
“In other words, you have an insurance policy against my filing a lawsuit based on the beating that you allowed Parnell and his thugs to give me.”
“I didn’t say that; you did.”
Matt sensed that Ted’s transfer was Dietrich’s attempt to offer him a reward for not suing and pressed: “If I refrained from filing a frivolous lawsuit, could you get Luther and Reggie out of solitary? Could I get my job in the library back?”
“Maybe. George has taken over Luther’s responsibilities for now, but we might be able to use three of you there. Let’s both sleep on it and talk again tomorrow. I hope you feel better.”
The insincerity of the parting courtesy chafed. And Matt suspected his only choice—at least from Dietrich’s perspective—was solitary confinement, but he hated the idea of being trapped alone in a room all day to stew in his regrets.
Then another possibility occurred to him. Luther had mentioned Parnell had been sent to Wheaton to separate him from the Angola prisoners and that the white population at Angola was much smaller—Parnell and Bill should have far less influence there. What if he asked for a transfer to the general population in Angola? It was counterintuitive, but it just might work.
The following day, Lieutenant Dietrich returned. “So, have you thought any more about where you want to live after this?” he asked.
“I care more about Reggie and Luther right now,” Matt said. “Have they been released from solitary?” He didn’t want his failed attempts to protect himself to cost others.
“Yeah, they’re out in Angola’s general population, but you need to consider your own…predicament. I won’t have time to see you before you’re released tomorrow.”
Matt doubted it and suspected Dietrich just wanted to ratchet up the pressure. It had the opposite effect. “I’d like to be transferred to the general population at Angola,” Matt said.
“What?” Dietrich asked, eyes widening. “You know, no matter how bad things get in Wheaton or Angola, they can always be made worse.” He narrowed them again.
Matt didn’t care about the threat. The same emptiness that had overtaken him in the rodeo ring overtook him again; whatever happened would happen; he couldn’t spend the rest of his days locked up in isolation with himself.
“Well, it’s your choice,” Dietrich said. “You can hardly sue for that.”
The next morning, two guards arrived to escort Matt to Angola. They loaded him into the back of an ancient Jeep, which took off, stirring the top layer of the dirt road into a cloud of dust. He began to panic, terrified that he was committing suicide by transfer.
Unnerved and second-guessing his choice, he began whispering the words his mother had taught him as a child, kneeling by his bed at night, which had kept worries and nightmares at bay: “Our Father who art in heaven, hallowed be thy name. Thy kingdom come, thy will be done, on earth as it is in heaven. Give us this day our daily bread. And forgive us our trespasses, as we forgive those who trespass against us. And lead us not into temptation, but deliver us from evil: For thine is the kingdom, and the power and the glory, forever. Amen.”
Matt still didn’t know whether being gay was a sin, but the Lord’s Prayer at least took no position. And if it was a sin it seemed a trivial one, especially here. In a world where no one has complete control, perhaps he needed to cede it—if only
for a moment—not to those eager to define God for him but to God.
The Jeep stopped. He was escorted to a barracks building identical to those at Wheaton and the guards showed him the door and gestured toward it—Matt wondered if they feared entering. He grasped the rusty iron handle and wrenched it open, stepping into the gloom.
Silence greeted him as he stood backlit in the doorway and then, as his eyes adjusted, he heard claps multiplying to applause. A large man sidled up and threw an arm around his shoulder, gripping it in—comfort. What?
“Welcome home,” said the man. It was Reggie. “Parnell warn’t welcome in Angola when he came back, but you sure are, partly ’cause I’d love to kill that sunovabitch. Anyone he hates so much cain’t be too bad.”
Another man came up to him. “I ain’t seen nothin’ like what you did durin’ convict poker. You didn’t jes’ outlast the rest of ’em. You beat the bull.” Matt exhaled, holding back tears as he realized he had at last—at least—found temporary safety.
Chapter 30
Weeks later, Matt sat in Butler Park with other Angola inmates waiting for Eric. For the first time since his imprisonment, he felt at ease. Reggie had far more influence than he’d let on before and he seemed to trust Matt based on his respect for Reggie’s determination to learn. It didn’t hurt that he hated Parnell and the other inmates loved the story of convict poker. He’d found himself doing legal work for others again, but now found it engaging and diverting, as he had in private practice.