Berthiaume v. Smith Summary

The National Association for Public Defense (“NAPD”), in conjunction with the ACLU of Florida and Lambda Legal, recently played an instrumental role as amici curiae in protecting and advancing the rights of the LGBT community.

In Berthiaume v. Smith, the Eleventh Circuit Court of Appeals held that jury members may be questioned during voir dire regarding latent bias predicated on sexual orientation.   Relying on its decision in United States v. Bates and the United States Supreme Court’s decision in Rosales-Lopez v. United States, the Eleventh Circuit concluded that, where matters of sexual orientation are “inextricably bound up” with the facts of the case, LGBT litigants are entitled to constitutional protections against jury bias.  

In so holding, Eleventh Circuit found that “the risk that latent, undiscovered prejudices may have influenced the jury’s verdict” was “substantial.” Furthermore, the Court emphasized that “general inquiries regarding the jurors’ ability to be impartial,” coupled with the trial court’s instruction “that jurors not be prejudiced against witnesses based on the witnesses’ backgrounds” failed to sufficiently apply the Rosales-Lopez and Bates standards. For these reasons, the Eleventh Circuit vacated the trial court’s decision a remanded the case for a new trial.  In response to the decision, D’Arcy Kemnitz, the executive director of the National LGBT Bar Association, stated that “LGBT individuals facing trial have the same right to jury of their peers, free from prejudice, as every other American.”

The Eleventh Circuit’s decision and reasoning reflects the arguments presented by the NAPD in its amicus brief, which emphasized the critical role of voir dire in preserving the constitutional right of stigmatized and marginalized groups to a fair and impartial jury trial. As D’Arcy Kemnitz explained, “[n]o one should ever face a jury filled with potential animus, and it is time that members of the judiciary recognize sexual orientation and gender identity as legitimate classes in need of protection.” In the Eleventh Circuit, that time has arrived.