Do you have a right to a jury of your peers?

Do you have a right to a jury of your peers?

by Beverly Rice, December 2009

Hell has no fury like a woman scorned. Especially when she's 79 and packing heat. Lena Sims Driskell couldn't accept the fact that her 85-year old ex-boyfriend Herman Winslow had found another mate. One day she pumped him with four bullets.

Mrs. Driskell went on trial June 20th and was convicted three days later on felony murder, malice murder, aggravated assault, and possession of a firearm. Murder and the state of Georgia don't mix; the judge gave the lovelorn grandmother a life plus 5 years sentence.

During jury selection, defense attorney Deborah Poole complained that Mrs. Driskell could not receive a fair trial with a jury of her peers because the juror pool lacked enough older people from which to select. Of the 58 jurors in the pool, a scant few were over 60.

Georgia law allowing people over age 70 to request an exemption from jury duty also contributes to the dearth of elder statesmen and women in the juror mix.

Does attorney Poole have a valid claim for appeal? Did Mrs. Driskell receive a fair trial if her "peers" were a lot younger than she? At jury selection, only 3 prospective jurors said they could not pass judgment on a defendant older than themselves.

The 6th Amendment guarantees the accused the right to a speedy and public trial by an impartial jury. The phrase "jury of one's peers" is not included in the Amendment, however, the courts interpret peer to mean equal, i.e., the jury pool must include a cross section of the population of the community in terms of gender, race, and national origin. The jury selection process must not exclude or intentionally narrow any particular group of people.

A jury of one's peers does not mean a black defendant must be tried by an all black jury or a female defendant must be tried by an all woman panel. The objective is to select an impartial jury from a randomly selected juror pool who will be fair, listen to the facts of the case, and render a just verdict based on the evidence.

There have been challenges to jury pools based on gender but not on age. The Supreme Court in the 1979 Duren vs Missouri decided a state statute exempting women from jury duty upon request violated the 6th and 14th Amendments. The statute failed the ensure a jury selected from a cross section of the community because women would not be fairly represented in the jury pool.

Attorney Poole may have a fighting chance if she appeals the Driskell case based on the age issue. A successful appeal would probably force Georgia (and any other states which do so) to end its age 70 exemption for jury duty. Given the cut and dry evidence - Driskell shouted to police, "I did it, and I'd do it again" - it's doubtful a jury full of 70 and 80 somethings would reach a different verdict.