A novel defense: Convict's bid for retrial hinges on alleged anti-trans discrimination against potential juror

At first glance the murder trial of Roxbury gang member Sam Smith, known as "Fat Sam" according to press reports, seems to have little to do with transgender civil rights. In June 2001 a jury convicted Smith of first-degree murder for shooting and killing a member of a rival gang in Roxbury's Ramsey Park in 1991. But Smith and his attorney, David Mirsky, are hoping that the U.S. Supreme Court will force the state to grant Smith a retrial on the grounds that one of the prosecutors in the case allegedly dismissed a juror because the juror appeared to be transgender.

To be clear, Smith, currently serving a life sentence at MCI Cedar Junction, is no transgender rights crusader. Mirsky said his ultimate goal in filing with the Supreme Court is to win a retrial. But in order to get to that point Mirsky will have to make the case to the highest court in the land that it is a violation of the 14th Amendment's equal protection guarantee to deny someone a seat on a jury for being transgender.

"If there's an equal protection violation in jury selection ... then that is considered structural error, and you cannot have a fair trial regardless of what occurs after that," said Mirsky. In January the Massachusetts Supreme Judicial Court (SJC) ruled that no such violation had taken place because there was not sufficient information available at the time of the trial to show the prosecution's allegedly discriminatory intent.

During jury selection for Smith's 2001 trial Suffolk County Assistant District Attorney James Coffey, now a Dorchester district court judge, attempted to challenge a juror for cause because the juror had what Coffey described as "identification issues." Coffey told the judge that the juror, who worked as a hairdresser's assistant, appeared to be a male who had breasts and who wore female clothing. The legal record does not contain any information about the juror's name or whether the juror identified as transgender.

Superior Court Judge James McDaniel denied Coffey's challenge. Coffey then exercised his right to remove the juror through a peremptory challenge, which allows both sides in a case to ask the judge to dismiss a certain number of jurors without having to provide a legal justification, as long as neither side uses its challenges to remove jurors because of their membership in a particular group. Smith's attorney at the time - Mirsky was not yet involved in the case - complained that Coffey seemed to be excluding the juror for being "a homosexual white male," but Coffey answered that he was concerned not with the juror's sexual orientation but with the juror's gender identity and expression.

"Just so I may be crystal clear, there's absolutely no pattern [of challenging gay jurors]. I don't even know of any even homosexuals that have been before us," said Coffey, according to a transcript reproduced in the SJC's January ruling. "This particular gentleman was dressed, in my opinion, like a female, and he has breasts and so forth. And, frankly, I was just looking at this from a common sense point of view. This guy has a lot of identification issues, and I don't -,"said Coffey, before the judge interrupted his comments. The judge allowed Coffey to dismiss the juror.

After the jury returned a guilty verdict Smith appealed and pushed for a retrial, claiming that there were a number of flaws and legal violations during the trial, including the alleged discrimination against the juror who appeared to be transgender. Smith's attorney also argued that the judge unfairly allowed jurors to see evidence of Smith's gang affiliation and that he introduced prejudicial evidence during his instructions to the jury, among other complaints. The case reached the SJC, which ruled against Smith.

Writing for the court, Justice Margot Botsford said that the SJC would not rule on the question of whether it is illegal to use a peremptory challenge to remove a juror because of their sexual orientation or gender identity or expression. She noted that Article 12 of the Massachusetts Declaration of Rights prevents the use of a peremptory challenge to remove a juror because of their affiliation with "particular, defined groupings in the community."

"To date, this court has not considered the question of whether the exercise of a peremptory challenge to remove a juror because of his or her sexual orientation or because the juror was transgendered would violate the guarantees of art. 12 or the equal protection clause," wrote Botsford. "Nor, it appears, has any other court. We do not reach the question in this case because the record does not supply the necessary factual foundation."

She wrote that there was no information in the record about the juror other than the attorneys' comments about the juror's appearance. Botsford wrote that the juror's sex, sexual orientation and potential transgender status are all unknown. She wrote that Smith's attorney at the time failed to file an objection to the peremptory challenge, giving the trial judge no impetus to determine formally whether discrimination had taken place.

Despite the SJC ruling Mirsky said he believes the record of Coffey's comments is sufficient to show discriminatory intent. He filed a petition for writ of certiorari with the Supreme Court appealing the SJC decision last month, and he is hopeful that if the court decides to hear the case it will rule in Smith's favor. Despite the court's purported conservative tilt and the absence of any important prior Supreme Court decisions in favor of transgender rights, Mirsky said he believes they will rule in favor of transgender rights.

"We should have confidence in the court, and I do. I think they'll protect the rights of transgender individuals," said Mirsky.

Smith's petition to the Supreme Court also repeats the argument that the trial judge unfairly allowed the introduction of evidence about Smith's gang affiliation.

Gary Buseck, legal director for Gay and Lesbian Advocates and Defenders (GLAD), said he suspects the Supreme Court will pass on reviewing the case for the same reason the SJC declined to rule on the question of whether it is unconstitutional to deny someone a slot on a jury because of their sexual orientation or gender identity or expression. He said the SJC likely declined to do so because of the small amount of information available in the record about the juror, which might make it difficult to determine definitively whether an instance of unconstitutional discrimination took place. Buseck said that since Smith's attorney did not make an objection, McDaniel had no reason to inquire about the charge of discrimination during the trial.

"My hunch would be that this one does not set up for Supreme Court review, and I think the SJC was uncertain on this record, what were they really looking at," said Buseck. He added that "there was something very strange and something that seemed inappropriate on the face of the dialogue" between Coffey, McDaniel and Smith's attorney during the trial, but he was not familiar enough with the law around juror challenges to know if it was illegal.

Buseck said Mirsky contacted GLAD after filing with the Supreme Court to ask whether they were interested in getting involved in the case. He said if the Supreme Court does decide to weigh in GLAD and the other LGBT legal advocacy organizations would likely confer about submitting an amicus brief stating their perspectives on the case.

"We never foreclose the possibility of offering some assistance if the case should go to the Supreme Court. ... We would want to think very carefully in a broad collaborative fashion about what we could or couldn't do that would be helpful," said Buseck.

Jake Wark, a spokesman for Suffolk County District Attorney Daniel Conley, rebutted Smith's claims of discrimination by pointing to the SJC's finding that there was no evidence of a pattern of exclusion. He declined to address the substance of Coffey's remarks during the trial about the juror's appearance and anatomy but said Conley's office does not discriminate in jury selection on the basis of gender identity or expression. Smith's trial took place while Ralph Martin, Conley's predecessor, served as Suffolk County District Attorney.

"The information I have at hand is simply not sufficient for me to go into the prosecutor's motive, but I know in policy and in practice we have no desire and no reason to desire exclusion of anybody from a jury based on gender identity or expression," said Wark.

He said all new prosecutors go through an extensive ethical training period that includes training on the ethical selection of juries. Seasoned prosecutors also go through the training periodically as part of a continuing education program. Under Conley that training includes instructions that prosecutors may not discriminate against potential jurors because of their gender identity or expression, Wark said. He did not know whether there was overt discussion of transgender discrimination under Conley's predecessors.

Harry Pierre, a spokesman for Massachusetts Attorney General Martha Coakley, said her office would not file a response to Smith's Supreme Court petition in defense of the state. He said Coakley's office was not required to do so unless specifically instructed by the court.

Gunner Scott, executive director of the Massachusetts Transgender Political Coalition (MTPC), said that he has generally had a positive working relationship with the Suffolk County D.A.'s office, and he said the office has reached out to MTPC to build on that relationship. At the time of Smith's trial Scott worked for The Network/La Red, which advocates for lesbian and bisexual female and transgender victims of domestic violence. Scott said he found the office's victim witness advocates to be professional and respectful when dealing with LGBT victims and witnesses.

"As with any entity, training needs to happen, and it needs to be ongoing, and I think there are definitely strong areas within the DA's office, and their may be other areas that need more education," said Scott.

He said regardless of whether the juror in the case identified as transgender, it is discrimination on the basis of gender expression to single out a juror because they appear to be a male dressed in female clothing or because they appear to have breasts. He cautioned that he was unfamiliar with the case and did not have firsthand knowledge of Coffey's comments.

"Even if that person wasn't trans, if that person was dismissed based on that assumption, that would be discrimination based on gender expression. ... The fact is this person showed up and did what they were asked to do and were not treated fairly, if that is the case," said Scott.
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