THE JURY IS STILL OUT: The Fight for

Women on Juries, particularly in Illinois

By Elsie G. Holzwarth

The Chicago Literary Club

April 19, 2010

The Oresteia by Aeschylus is a trilogy of plays entitled Agamemnon,

Libation Bearers and Eumenides, first performed in Athens in 458 B.C.E. Aeschylus

tells the tale of Menelaus’ wife Helen, who departs with Paris, prince of Troy.

Agamemnon comes to the aid of his brother Menelaus in the war against Troy, but his

ships are hampered by the winds. He kills his and his wife Clytemnestra’s daughter,

Iphigenia, to get a good wind, and sets sail. Clytemnestra is furious at the murder. She

takes up with his cousin Aegisthus while Agamemnon is off at the Trojan War. When

he returns 10 years later, she kills him. Aegisthus is happy because Agamemnon’s father,

Atreus, had killed Aegisthus’ older brothers and fed them to their father, who was Atreus’

brother. Agamemnon and Clytemnestra’s surviving children are furious at the murder of

their father. The son Orestes, egged on by his sister Electra and the god Apollo, kills his

mother and her lover. (This is truly a dysfunctional family.) Mythological female

prosecutors of evil doers called the Erinyes, also known as the Furies, are furious with

Orestes. They bring him to trial. The votes of the Athenian citizen-jurors are equally

split. The goddess Athena, in all her wisdom, casts the deciding vote for Orestes’

acquittal, although one might disagree with her reasoning that killing a woman is not as

bad as killing a man. What is important in The Oresteia is that the cycle of killing,

vengeance and revenge is ended. “Legal justice supersedes private retribution.” [1]

Persuaded by Athena, the Furies are transformed into the Kindly Ones, called the

Eumenides, and they become “essential to the civic cohesion and good order” of the

city. [2]

Fifty-nine years later, in 399 B.C.E., Socrates was brought to trial before a

jury of 500 or 501 male Athenian citizens. He was charged with not acknowledging the

gods of the city, introducing new ones, and corrupting the young men of Athens. Found

guilty, he was sentenced to death, but refused an opportunity to escape. What we know

comes from Plato and Xenophon, and the many ensuing commentaries. One more

commentary might be added here: Socrates, for all his wisdom, had forgotten the lessons

of The Oresteia. He failed to comprehend the contribution of females to the

administration of justice. He neglected to demand women on his jury. Perhaps, upon

realizing this error, he was so abashed, he took the hemlock.

* * *

The history of our tradition of jury trials is not completely clear. Some credit

England’s King Alfred the Great, others Henry II, still others King John and the signing

of Magna Carta in 1215. Be that as it may, one thing is clear. Women were not allowed

on juries. Yet every rule has its exceptions. Under the laws of England, if a widow

alleged she was pregnant in order to exclude the next heir, and a fraud was suspected,

a jury of women was to be impaneled to try the question: “whether with child, or not. ” [3]

Also, if twelve women rendered a verdict that a woman, sentenced to death, was

pregnant, her execution would be delayed until the birth, or “proves by the course of

nature not to have been with child.” [4] But the condemned could not use this delay

tactic twice. (Many petty crimes were capital offenses.) Such was the law when the

Declaration of Independence was signed, July 4, 1776, accusing King George III of

agreeing to “acts of pretended legislation. . . depriving us in many cases of the benefits

of trial by jury.”

* * *

Charles Dickens poked fun at juries in The Pickwick Papers, when Mr. Pickwick

is charged with breach of promise of marriage. “Discontented or hungry jurymen, my

dear sir, always find for the plaintiff. . . If it’s near dinner-time, the foreman takes out his

watch when the jury has retired, and says, ‘Dear me, gentlemen, ten minutes to five, I

declare! I dine at five, gentlemen.’ ‘So do I,’ says everybody else, except two men who

ought to have dined at three, and seem more than half disposed to stand out in

consequence. The foreman smiles, and puts up his watch: – ‘Well, gentlemen, what do

we say, plaintiff or defendant, gentlemen? I rather think, so far as I am concerned,

gentlemen – I say, I rather think – but don’t let that influence you – I rather think the

plaintiff’s the man.’ Upon this, two or three other men are sure to say that they think so

too – as of course they do; and then they get on very unanimously and comfortably. ” [5]

Mr. Pickwick is found guilty and fined seven hundred-fifty pounds by his all-male jury.

In Alice’s Adventures in Wonderland, Lewis Carroll also mocks juries. The

jury is to decide if the Knave of Hearts stole those tarts. “ ‘And that’s the jury- box,’

thought Alice, ‘and those twelve creatures,’ (she was obliged to say ‘creatures,’ you see,

because some of them were animals, and some were birds,) ‘I suppose they are the

jurors.’ She said this last word two or three times over to herself, being rather proud of

it: for she thought, and rightly too, that very few little girls of her age knew the meaning

of it at all. However, ‘jury-men’ would have done just as well.

The twelve jurors were all writing very busily on slates. ‘What are they

doing?’ Alice whispered to the Gryphon. ‘They can’t have anything to put down yet,

before the trial’s begun.’

‘They’re putting down their names,’ the Gryphon whispered in reply, ‘for fear

they should forget them before the end of the trial.’

‘Stupid things!’ Alice began in a loud, indignant voice, but she stopped hastily,

for the White Rabbit cried out, ‘Silence in the court!’ and the King put on his spectacles

and looked anxiously round, to make out who was talking.

Alice could see, as well as if she were looking over their shoulders, that all the

jurors were writing down ‘stupid things!’ on their slates, and she could even make out

that one of them didn’t know how to spell ‘stupid,’ and that he had to ask his neighbor to

tell him. ” [6]

There was more mockery from Mark Twain. His brother Orion Clemens was

appointed Secretary of the Nevada Territory, and in 1861 they arrived in Carson City

with four pounds of U.S. statutes and a six-pound unabridged dictionary. [7] In Roughing

It, Twain describes the trial of a “noted desperado” who killed a “good citizen” in nearby

Virginia City, “in the most wanton and cold-blooded way. Of course the papers were full

of it, and all men capable of reading read about it. And of course all men not deaf and

dumb and idiotic talked about it.” Twain lists which jurors were rejected: “a prominent

banker and a valued citizen; a minister, intelligent, esteemed and greatly respected; a

merchant of high character and known probity; a mining superintendent of intelligence

and unblemished reputation; and a quartz-mill owner of excellent standing.”

He explains that, “Each said the public talk and the newspaper reports had not

so biased his mind but that sworn testimony would overthrow his previously formed

opinions and enable him to render a verdict without prejudice and in accordance with the

facts. But of course such men could not be trusted with the case. Ignoramuses alone

could mete out unsullied justice. . . a jury of twelve men was empaneled – a jury who

swore they had neither heard, read, talked about, nor expressed an opinion concerning a

murder which the very cattle in the corrals, the Indians in the sagebrush, and the stones in

the streets were cognizant of. It was a jury composed of two desperados, two low

beerhouse politicians, three barkeepers, two ranchmen who could not read, and three dull,

stupid, human donkeys! It actually came out afterward that one of these latter thought

that incest and arson were the same thing. The verdict rendered by this jury was, Not

Guilty. What else could one expect?” asks Twain. [8] (Note: nary a mention of women

jurors.)

In November, 1872 suffragist Susan B. Anthony voted in Rochester, New

York. She was arrested and brought to trial. “As a female she was deemed incompetent

to testify. But when the judge asked if she had anything to say, Susan responded with a

blistering speech that became one of her most famous. Yes, she had a great deal to say,

objecting to this unfair trial without a jury of her peers. She claimed her right to vote

under the Fourteenth Amendment [of the United States Constitution]. The judge,

unmoved, instructed the [all-male] jury to find her guilty.” [9] (Unlike Socrates, Susan had

not forgotten to complain there were no women on her jury.)

* * *

Myra Bradwell was the editor of the Chicago Legal News and the wife of

James Bradwell, a Cook County Circuit Judge. In 1869 she passed the Illinois bar exam,

applied for admission to the bar, and was rejected by the Illinois Supreme Court “by

reason of the disability imposed by your married condition.” Bradwell moved for

reconsideration, and reconsider the Court did. It then found the sex of the applicant a

“sufficient reason” for not granting this license, declaring that if the legal profession were

open to women then “every civil office in this State may be filled by women.” [It would

follow] that “women should be made governors, judges, and sheriffs.” Furthermore, it

should be considered whether “the hot strifes of the bar” [and the] “momentous verdicts,

the prizes of the struggle, [would] tend to destroy the deference and delicacy with which

it is a matter of pride of our ruder sex to treat [women]. ” Finally, there was the concern

over “what effect the presence of women as barristers in our courts would have upon the

administration of justice.” [10] (Clearly, they had not read The Oresteia.)

Bradwell appealed and was rejected by the United States Supreme Court. The

right to practice law in the courts of a state is not one of the privileges and immunities of

citizens, which cannot, under the Fourteenth Amendment, be abridged. It is a concurring

opinion that is most often quoted: “The civil law, as well as nature herself, has always

recognized a wide difference in the respective spheres and destinies of man and woman.

Man is, or should be, woman’s protector and defender. The natural and proper timidity

and delicacy which belongs to the female sex evidently unfits it for many of the

occupations of civil life. The constitution of the family organization which is founded in

the divine ordinances as well as in the nature of things indicates the domestic sphere as

that which properly belongs to the domain and functions of womanhood. The harmony,

not to say identity of interests and views which belong, or should belong, to the family

institution is repugnant to the idea of a woman adopting a distinct and independent career

from that of her husband. . . The paramount destiny and mission of woman are to fulfill

the noble and benign offices of wife and mother. This is the law of the Creator.” [11]

In April, 1873, soon after this decision was rendered, Susan B. Anthony wrote

to Bradwell: “I am fired to White heat. Do send me all you say in the [Chicago Legal]

News on the decision and do put all your lawyer’s brain to it. Write me the best letter

you possibly can for me to read at our . . . May meeting in New York. Don’t fail – I pray

you. . . Our convention will pour hot shot into that old Court.” [12]

The Illinois legislature passed legislation rectifying that old Court’s decision. In

1890, twenty-one years after Bradwell passed the bar exam, the Illinois Supreme Court

admitted her on its own motion. Two years later she was admitted to practice before the

United States Supreme Court. Yet Bradwell, and the other women lawyers of Illinois,

were not allowed to vote, nor were they allowed to sit on juries.

* * *

By law, the names of potential jurors were taken from the lists of “legal voters”

without reference in the law to the gender of those voters, or to the gender of jurors.

The enactment of the 1913 Illinois law giving women the right to vote in some elections

changed nothing. In 1915 John Goehringer was convicted of “keeping open a tippling

house on Sunday.” Walter Krause was convicted of the same crime in a second case.

Each appealed, arguing he did not have a fair trial because women were excluded from

the voter list, and thus from the jury list. The appellate courts held, “We are of the

opinion that the names of women who could vote on certain subjects in the respective

towns were properly omitted from consideration in making up the list.” [13] “While

women are legal voters for the election of statutory officers and certain other purposes,

they are not thereby made eligible for jury service.” [14]

The ratification in 1920 of the Nineteenth Amendment to the United States

Constitution, granting universal suffrage to women, changed nothing. Hannay Beye Fyfe

failed in her 1925 suit against jury commissioners who determined she did not possess

the necessary legal qualifications for jury duty, in that she was a woman. The Illinois

Supreme Court used the “original intent” argument. In 1887, when the legislature

enacted the jury law, that potential jurors be taken from the voter lists, “it did not intend

that the name of any woman should be placed on the jury list.” Furthermore, “The

Nineteenth Amendment to the Constitution of the United States makes no provision

whatever with reference to the qualifications of jurors.” [15] That, according to the court,

was up to the Illinois legislature, and it had done nothing.

* * *

The fight for women on juries was now on, countrywide and in Illinois. In 1924

the National League of Women Voters published a pamphlet, including an article

on the “advisability of admitting women to jury service and to answer some of the

objections” to it:

“Justice to women, and even the community, demands that women should be

eligible to sit as jurors, for if women are like men, they surely should serve; and if

women are not like men, their point of view, different from that of the men, should be

represented on our juries . . .

As voters, taxpayers, and litigants, it is unjust to deny women the right to sit on

juries which decide questions affecting their property and their liberty. . .

Women of the poorer classes would probably welcome jury service as much

and even more than those of the richer class, because it would give them an opportunity

for relaxation and recreation away from the home. It is better that the sweeping and

dishwashing should suffer temporarily. . . than that the state should be deprived of

splendid jury material.

Those with household help can easily find time for jury service. Many cases

in court do not last longer than the average bridge party or church festival. There is no

danger to the home from women serving on juries. The home has not suffered because

of thousands of women’s clubs of every possible political and humanitarian complexion,

nor because women have sat on city councils, or on boards of directors. Grace and charm

have not departed from the American home; family life has not been destroyed; domestic

arts have not been neglected; children have not gone, in greater numbers than before,

breakfastless to school. There is no recorded increase in the burning of soups.

The most common objection to women jurors is that they will be subjected

to pass on cases of a disagreeable nature. The percentage of cases involving presentation

of unsavory testimony is extremely small . . . The opportunity for women to read

unsavory stories in yellow journals [and might we here add in The Oresteia ?] is greater

in one day than jury service would afford them in a lifetime. . . We have women

litigants, women court stenographers, women witnesses, and in some states, even women

judges, and these have not suffered from contact with the court room. Women doctors,

nurses, and social workers are probably best acquainted with evil social conditions, yet

this has in no way undermined their morals. . .” [16]

* * *

In 1927 women were not allowed on juries in more than half the states. [17]

The women on juries bill failed in the 1927 Illinois legislative session. In 1929, it passed

with the proviso that it would take effect only after a majority of voters at a referendum

voted for it, as indeed they did in the fall of 1930, but to no avail. The Illinois Supreme

Court issued an order that only male voters be placed on jury lists on the grounds that the

referendum was an unconstitutional delegation of its legislative powers by the

legislature, and thus of no effect in authorizing women on juries. [18]

Despite the efforts of many women’s organizations, including the Women’s

Bar Association of Illinois and the Illinois State Committee for Women on Juries, the

women on juries bill was defeated in 1931, 1933, and 1935. (The legislature was in

session in odd-numbered years only.)

The 1937 Women’s Bar Association minutes note its opposition to

proposed amendments to the bill exempting women under 25 and all mothers because

that “would eliminate fifty percent of the women who would be good jury material.”

However, “it would not oppose an exemption for nuns.” [19] Finally, the legislature passed

the bill in 1937, without exemptions. But, it was effective July 1, 1939. This meant it

could still be repealed in the 1939 legislative session and, of course, there would be the

Illinois Supreme Court to contend with too.

In 1938, Grace H. Harte, president of the Women’s Bar Association, wrote in

the newspaper, “Some of the married members of the last legislature, as an excuse for

opposing the jury measures, would say ‘I have a wife’ or ‘I have daughters. They do not

want women jury laws; and I am irrevocably opposed to have them subjected to the

corrupting ordeal of being locked up with male jurors while deliberating on verdicts.’

So often were such remarks repeated that some of us began to wonder if there

really was a basis for their fears, and if so, felt that some psycho-analyst should study the

reason why the Illinois males, otherwise respectable home-loving, church-going and

upright citizens, should merely because of the fact they were sitting as jurors be

transformed into indecent morons and unclean creatures.”

The Women’s Bar Association sent a questionnaire to all candidates running

for the legislature in the 1938 election: “We believe in the democratic way of life, and if

this way is to be successful and survive, all citizens must share its responsibilities as well

as its privileges. We believe that the privilege to serve on juries is an extension of

democracy and one of the instruments by which the democratic way of life may be

accomplished. We would be pleased to have your view on the subject?”

Harte writes that the candidates’ replies were “all favorable and all promising

to vote for women jury duty if elected. Of course the women lawyers realize that the

anxiety to win at the primaries colored some of the replies, and a certain discount must be

allowed for the circumstances which brought forth the unconditional surrender of all the

candidates. [One reply], ‘I have a wife. Of course I am for women jurors. My wife would

consign me to the dog-house if I felt otherwise.’ [Another], ‘I have a wife and three

daughters. I know they are just as much entitled to sit on juries as I. In fact I believe

they will make better jurors than does the average man. I am sure their tendency to permit

sympathy to sway them would not be as dangerous as the spectacle we now see where

men become goggle-eyed when a neat ankle or baby-faced woman is defendant.’ ” [20]

In August, 1939 the Illinois Supreme Court at last issued an order that women

be included on the lists of potential jurors, deciding that “juror qualifications are a

matter of legislative control”, and the provision for trial by jury in the Illinois

Constitution described jurors as “men” in a generic sense only. Since the women on

juries law “does not impair, abridge or deny the right of trial by jury as guaranteed by . . .

the Constitution, the same must be sustained.” But, the Court added, “The courts are

not concerned with the necessity or wisdom of such legislation.” (emphasis added.) [21]

On October 5, 1939 the Women’s Bar Association held its Victory Dinner at

$ 1.25 per plate. The minutes record that among the honored guests was Walter F. Dodd,

one of the lawyers in the case. He spoke on the question of whether the term “men” also

embraced women and, the minutes note, “facetiously suggested that while the answer was

that men embraced women – still, women sought the embrace.” [22]

* * *

Each year the Chicago Bar Association puts on a “Christmas Spirits” show in

the form of a musical satire. It did not allow women lawyers to participate until 1971. [23]

So, the “lady jurors” in the December, 1939 show were male lawyers in drag. “Bring in

the Jury” was sung to the tune of Beer Barrel Polka! And the “lady jurors” sang “Jurors’

Song” to the tune of Glowworm:

Three dainty jurors cases trying,

Legal procedure purifying,

Called to render jury duty,

Wise despite our youth and beauty,

Though we have never concentrated,

Our little egos are inflated,

Though we need a mental crutch,

We have that female touch. [24]

On the question of women jurors, the jury was still out. One 1940 commentator

noted, “To many the mere fact that a woman wants to be a juror is sufficient to arouse

grave suspicion of her mental capacity to be one, for it is axiomatic that laymen regard

jury duty with distaste and reluctantly serve only after their excuses and ‘pull’ have failed

to win reprieve. . . Over in the Criminal Court building 1,000 slot machines were

removed from a store-room and destroyed in order to make a place for the women’s

recreation room. When the girls start waiting around for days at a time while lawyers and

judges argue in chambers, they are going to wish that the State’s attorney’s office had left

a few of the coin collectors to help them while away the time. The main thing that is

wrong about lady jurors probably is that they are just as human and as fallible as men.” [25]

In 1954 Reginald Rose wrote a play for television, about the deliberations of

an all-male jury, entitled Twelve Angry Men. It was expanded into a stage play in 1955,

turned into a film starring Henry Fonda in 1957 and a made-for-television movie in

1997 starring Jack Lemon. It is still performed on stage. One wonders how popular it

would have been had it been called Twelve Angry Women.

* * *

Gwendolyn Hoyt was an angry woman. Suspecting her husband of infidelity,

she killed him with a baseball bat, and claimed temporary insanity. She was convicted by

an all-male jury. In 1961 she argued in the United States Supreme Court that the Florida

law exempting women from jury duty, unless they registered that they wanted to be

jurors, was unconstitutional under the Fourteenth Amendment. Of course, very few

women volunteered. Harkening back to the days of Myra Bradwell, the Court noted the

80-year precedent from its 1890 opinion that jury duty may be “constitutionally confined

to males.” Furthermore, it held, “woman is still regarded as the center of home and

family life.” A woman may “be relieved from the civic duty of jury service unless she

herself determines that such service is consistent with her own special responsibilities.”

The Court noted women were not allowed on juries in Alabama, Georgia and South

Carolina. In twenty-one states they were eligible the same as men. In the rest of the

states women had exemptions they could exercise as women, except Louisiana where

they had to opt-in as in Florida. [26]

But that was the 1960’s and the times, they were a-changin’. By 1975 women

could be jurors in all states. The Supreme Court, considering Louisiana’s statute in the

case of Billy Taylor, convicted of aggravated kidnapping, now cited population statistics

and labor statistics, “the evolving nature of the structure of the family unit,” and the lack

of women volunteering for jury duty. It held, the Sixth Amendment guarantee of trial by

jury applies to the states. It requires juries be chosen from a fair cross-section of the

community, a requirement violated by a systematic exclusion of women. The statute is

unconstitutional. Women cannot be excluded or given automatic exemptions. All

precedents are overturned. Rehnquist dissented. [27] (Note: in 2006 the Illinois law was

amended to exempt nursing mothers.) [28]

Once called to jury duty, jurors may still be rejected by parties to litigation for

cause: financial interest in the case, relationships with participants, other conflicts of

interest, prejudice or bias. Parties may also reject a limited number of jurors for no

reason whatsoever, called peremptory challenges, the number being determined by the

type of case and number of parties. When an all-female jury found J.E.B. to be the father

in a paternity case, he complained to the United States Supreme Court that peremptory

challenges had been used to exclude all the men. The Court, in 1994, held that litigants

may not reject potential jurors solely on the basis of gender, as this violates the equal

protection clause of the Fourteenth Amendment. Rehnquist, Scalia, Thomas dissented. [29]

* * *

Despite the conscientious work of most juries, on the question of juries, the jury is

still out. Publicity of the 2006 corruption conviction of former Illinois governor George

Ryan informed us that a male juror was dismissed by the trial judge when he was spied

reading newspapers almost daily at coffee shops near the courthouse, [30] a woman juror

was dismissed for sleeping during the trial, [31] two jurors were dismissed in the middle of

deliberations for having lied about their arrest records (one of whom had already

complained a male juror called her a dog), [32] one woman juror sold the purple blouse she

wore during the trial on ebay. [33]

In January, 2010 in the case of Marcus Wellons, sentenced to death for rape and

murder, the United States Supreme Court directed the Eleventh Circuit Court of Appeals

to consider whether an evidentiary hearing should be held inquiring into the possible

misconduct of the trial judge, the jury and the bailiff. It was later discovered they had all

planned to hold a reunion after the trial. Either during or right after deliberating on the

death penalty, some of the men and women on the jury gave the bailiff a gift of edible

chocolate breasts, and the judge an edible chocolate penis. All of this the judge had

failed to disclose. Roberts, Scalia, Thomas, Alito dissented. [34]

MSNBC News reported in February, 2010 that Sal Esposito was summoned to

jury duty. It was news because Sal is a cat. The item was picked up by the website

pawnation.com where pet-lovers urged, in the vein of Lewis Carroll: let the cat sit on a

jury; it couldn’t be any worse than some of the stupid people. [35]

Attorney and author Vincent Bugliosi wrote in Outrage: The Five Reasons Why

O.J. Simpson Got Away with Murder, “the jury could hardly have been any worse” with

“not . . . too much intellectual firepower.” [36] Nevertheless, in our criminal justice system

a government authority cannot convict us of a crime, and clap us in a prison, unless we

give up the right to a trial by jury. Therefore, in Bugliosi’s view, the jury system is

“perhaps the most fundamental safeguard against tyranny we have.” [37] And that is so,

even if the men – and the women – on juries are merely fallible human beings.

Notes