I’ve written before about how we might go about doing jury duty barefoot. In Barefoot Jury Duty?, I looked at some of the attire requirements around the country and how being a barefoot juror really doesn’t fit the definition of contempt (not that a judge couldn’t go after you anyways). In Call to (Jury) Duty, I talked about what to do when refused entry by a guard who thinks there is a rule against going barefoot in a courthouse.
We now have a real case in which people called to jury duty were refused entry because they were wearing sneakers.
The concern in United States v. Sotolongo, et al., comes not from the potential jurors, but from the defense. The defense is claiming that a rule saying that sneakers (or any kind of casual dress) are not allowed has limited the jury pool illegally. Here’s what’s on the jury page for the Orlando court in the middle district (federal) of Florida:
Juror Attire & Conduct:
You are expected to conduct yourself with reserve and courtesy, and when appearing at the courthouse, must dress appropriately to preserve the dignity of the Court. Proper attire includes coat and tie for men and similarly appropriate attire for women. No jeans, polo shirts or sneakers.
[Underlining in the original.]
There is also a brochure that says the same thing (but with a lot of red emphasis) that claims it is for “United States Federal Jury Service”, but it is really only restricted to this particular court.
That is really extreme. I know it doesn’t say that bare feet are banned, but if you tried to go in barefoot, pointing to the rules and saying they didn’t say no bare foot would not work at all.
In Sotolongo, the defendants were convicted and their attorneys have filed a motion for a retrial. One of their points is that this dress code unconstitutionally restricted the jury pool.
They point out two things wrong with it.
First, the rule severely limited the number of African-Americans available for the jury. Out of the 50 prospective jurors for the trial, only one was black, and she was unavailable due to a prior commitment. Considering the fact that the population of the area has 15-20% blacks, getting only one out of 50 says something odd is going on.
The motion goes to point out the dress code for jurors. As the attorneys point out:
The rule does not articulate how complying or not complying with a dress code either enhances or diminishes a person’s qualifications to serve as a petit juror.
(Of course, that would also apply to a barefooted juror.)
Second, according to the motion, guards at the security station routinely were refused entrance for not following with the dress code. They were simply sent away but the guards. It’s not clear how the guards knew these people were jurors (were they refusing entrance to anybody wearing sneakers?), but it could be there was a special line for jurors, or it was obvious that they were jurors because they were required to arrive so early in the morning.
As the motion points out
The possible reasons why a prospective juror did not dress in accordance with the code are numerous and could include an economic inability to comply, religious beliefs that mandate an individual dress in a certain fashion, or simply that an individual chooses to dress in accordance with the accepted fashion norms of a racial minority. Alternatively, a prospective juror may have to wear sneakers for medical reasons. An exclusion of a potential juror based on religion, economic status or race is violative of 28 U.S.C. § 1862, which specifically provides, in pertinent part, that “[n]o citizen shall be excluded from service as a grand or petit juror in the district courts of the United States … on account of race, color, religion, sex, national origin, or economic status.”
What is so egregious about this (and what forms the basis for a new trial) is that these decisions were being made by guards, and not the judge. The potential jurors had no opportunity to explain before the judge whether they had a religious reason for dressing the way they were, or whether their economic status prevented them from wearing a coat and tie. (Heck, did some of they even own one?) I also note that the motion includes medical reasons as another reason one might not follow that dress code.
Quoting again from the motion
The decision to exclude these prospective jurors from jury service was a decision that could lawfully only be made by the Court after a hearing fully developing the facts and during which the defense was given a full their opportunity to be heard. Under no circumstances does a court security officer unilaterally have the right to exclude prospective jurors and thus impact the composition of the venire and, ultimately, the jury selection process.
This squares with what I wrote in Call to (Jury) Duty. There I suggested talking to either the Jury Manager, or the Administrative Judge in order to get to serve on a jury barefoot.
Of course, many of the people turned away probably didn’t want to serve, and were quite happy to be turned away.
But what is important is that you cannot arbitrarily be turned away. You need to have the opportunity to explain yourself before the judge. Certainly there are many barefooters who have, at least, either medical or religious reasons for going barefoot. The guards really shouldn’t be able to just turn them away—that has to be up to the judge.
So this is a case I will be watching carefully. Even if a new trial is not granted (and judges rarely reverse themselves this way), this seems to me to be the sort of thing that will be appealed and make some interesting law regarding juror dress codes.
I’ll keep you updated.
[H/T: Scott Greenfield at Simple Justice.]