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June 1 marks anniversary of having women on Maryland juries

This column is one in an occasional series on jury trial issues by Howard County Circuit Judge Dennis M. Sweeney, retired, who chairs the Judiciary’s Committee on Jury Use and Management. Judge Sweeney can be reached at judgesweeney@mac.com

The Baltimore Courthouse and Law Museum shared this news clipping photo of the all-women jury that was picked in February 1948. At left is attorney Max Israelson.

In February 1931, when Sara Whitehurst stepped from a specially chartered train in Annapolis with 200 other women from Baltimore, she was optimistic that a long-sought priority of Maryland women’s social, professional and business groups would soon be accomplished.

Whitehurst was president of the Maryland State Federation of Women’s Clubs, and her Baltimore delegation was joined by women from all over the state who came to march on the General Assembly for the passage of a law that would allow women to serve on Maryland juries.

It had been a long struggle. When the Nineteenth Amendment was adopted in 1920, many women’s rights advocates thought their marching was over; that obtaining the vote would mean automatic entitlement to other rights of citizenship, such as the right to serve on juries. They expected state governments to grant the rights without delay.

However, it became clear early on that, as least in Maryland, there would be no quick resolution.

Free and lawful men

Under the common law adopted by Maryland’s constitution, women were not eligible for jury service. In his Commentaries, Blackstone described the jury as composed of “twelve free and lawful men.” In his words, women were excluded under the doctrine of “propter defectum sexus” — that is, their sex was a legal defect that made them intrinsically ineligible for jury service.

This common law restriction was unaffected by Strauder v. West Virginia, 100 U.S. 303 (1879), where the Supreme Court found a statute barring African-American men from jury service to be unconstitutional. The Strauder court was careful to note that its landmark decision had no impact on the historic exclusion of women from jury pools.

In 1921, after hearing that women were serving on juries in Philadelphia for the first time, the judges of the Supreme Bench of Baltimore City took up the issue. Several favored the idea. Judge Charles W. Heuisler said:

“By all means let us have women on juries. The State should have the benefit of all the intelligence, sound judgment and common sense of all its citizens, irrespective of sex. I feel certain that curiosity alone will lead women to seek a place on the grand jury.”

On the other hand, Judge Carroll T. Bond warned:

“The appointment of women jurors would mean the entire reversal of our treatment of women. Those who sit on juries in criminal courts must face the unveiling of the utmost of human depravity.”

On a more practical level, Judge Morris T. Soper noted that there was a dormitory with cots on the fifth floor of the courthouse for male jurors who were sequestered overnight, and that outfitting suitable facilities for women would be a major problem.

At the end of their discussion, the judges took no action, deferring to the legislature.

‘No job for a woman’

When the first bills to allow women to serve were introduced in the Maryland General Assembly in the early 1920s, they were met with blatant hostility and ridicule. After several women testified in favor of a bill in 1922, one legislator retorted:

“Ladies, you know not whereof you speak. Jury service is a revolting thing. You will be forced to hear horrible things, to listen to tales of vice and sagas of corruption. Your dainty ears will be filled with stories which will keep you awake at night and, in addition to that, it’s no job for a woman.”

A few women testified against the bill. They characterized the proponents as “a bunch of old maids” who were “funny looking” and knew nothing about taking mothers away from their children for jury service.

Many legislators also saw sinister and subversive motives in the bill which, according to a contemporary newspaper article, they interpreted as aiming to force women into positions of power and to oust male officeholders in favor of “anybody so [long as] it’s a woman.” Some proclaimed that “a sex war is imminent” if the bill became law. It was soundly defeated that year and for years thereafter.

The battle hymn

Even so, the 1931 delegation led by Mrs. Whitehurst and Helen Sherry, a Baltimore lawyer who had drafted a new bill, had reason to believe its chances had improved. In the years since the first Maryland bill was defeated, 22 states, the District of Columbia and the territory of Alaska had enacted laws allowing women to serve on juries. Two of Maryland’s neighbors, Delaware and Pennsylvania, were among the earliest to include women on juries, and their justice systems seemed to be functioning well with none of the dire predictions from such inclusion coming about.

The assembled women, with Mrs. Whitehurst at the lead, marched from the train station through the streets of Annapolis carrying banners and signs that read “Jury Service for Women.” As they marched they sang a “battle hymn” to the tune of “Maryland, My Maryland” with the concluding verse:

We seek the right denied for years

To sit as jurors and as peers,

Forget your Mid-Victorian fears,

Maryland, my Maryland.

Still singing, they climbed the steep steps of the State House and assembled in the large hallway between the chambers of the Senate and House, both of which were in session. Legislators poured out of the chambers to take in the unusual sounds and sight.

The women then marched up the wide marble steps of the State House to the second floor, where Gov. Albert C. Ritchie’s office was located. They had no appointment but after the battle hymn was sung several times over, the governor emerged from his office to face them.

Mrs. Whitehurst implored him to support the bill and see to its passage. Gov. Ritchie (who was considering a run in 1932 for the presidency as a more conservative Democratic alternative to New York Gov. Franklin Delano Roosevelt) refused to take a position, saying it was purely a legislative matter. He left the women with the empty sentiment that “all sides should be heard from.”

Undeterred, the women assembled for an afternoon hearing before the House Judiciary Committee, where representatives from many groups testified in favor of the bill. They ranged from the Women’s Club of Roland Park to the State Federation of Republican Women to the women’s clubs of the Eastern Shore.

The effort, however, was for naught. The General Assembly again rejected the proposal, and the rejections continued year after year.

Shifting tactics

In 1937, the women’s groups, shifting tactics, put on a major push for enactment by bringing in legislators and bar association presidents from neighboring jurisdictions to show how women’s jury service had worked well there.

However, the day before the final committee hearing in Annapolis, The Baltimore Sun carried an article which contained the views of Judge William C. Coleman, the senior federal judge in Maryland. Coleman, in addressing the all-male jury pool in federal court, invited a reporter in to hear his remarks. He noted that federal courts were required to follow state laws on jury selection and that he was opposed to women being on juries. He said he “could not see how women on a jury could add to its efficiency” and concluded:

“I have no hesitation in saying, that the jury has no place for women. Women of high type are too busy in their homes to serve on juries. In my opinion, it is twice as hard for women to leave their homes as it is for you to leave your offices.”

Following publication of these statements, the General Assembly again voted down the bills.

Post-war push

While the proposals continued in each succeeding session of the General Assembly, it was only as World War II was concluding that efforts to pass the legislation seemed to gain momentum.

Given the roles played by women in the military and industry during the war, the “dainty ears” argument of the early 1920s was becoming outmoded and, in the interim, a majority of the states had opened jury service to women.

Perhaps most significantly, women elsewhere had successfully served on juries in notorious and highly emotional capital cases, including the Lindbergh baby-kidnapping trial in New Jersey, which had four women jurors.

The major opposition at this stage came from the organized bar, which was unmoved by the experience reported from other jurisdictions. In 1945, while the women-juror bill was pending, the all-male Bar Association of Baltimore City voted 210 to 137 against allowing women on juries. One member told The Baltimore Sun that the only women who wanted to serve on juries were “the ones who like to mess in politics, the strong-minded type who are hard to get along with. There would be more hung juries than ever before.” Another lawyer said: “The time is not yet ripe for women jury service, and the facilities in the Courthouse are inadequate. The proper place for women is in the home.”

The next year, the Baltimore County Bar Association outdid its Baltimore City brethren in opposing women jurors, with only a vote in favor of allowing women to serve.

Finally, in 1947, a quarter-century after the bill was first considered by the General Assembly, the women’s groups decided that the time was ripe for another onslaught on the General Assembly. A Maryland Committee for Jury Service for Women was formed and Sara Whitehurst was named its president.

In the time since the 1931 march, Mrs. Whitehurst had become head of the national organization of women’s clubs and was recognized throughout the country as a spokesperson on women and family issues. She became a confidante of Eleanor Roosevelt and was made head of a Maryland advisory board for the National Recovery Act. For 15 years, she had been the first and only woman serving on the University of Maryland’s Board of Regents.

Mrs. Whitehurst organized 300 women to appear at the Senate Judiciary Committee hearing on the bill in late January. The Baltimore Sun described them as a “militant contingent” in “furs and feathered hats” that was “[l]oudly up in arms.”

The hearing was marked by “cheers, hisses, applause and the pleas of more than 30 women speakers” who supported the bill.

Only one person testified against the bill, a Baltimore society woman named Mrs. W. Calvin Long. In her rebuttal testimony to the Senators, Mrs. Whitehurst dismissed Mrs. Long, directly and personally, as one who “goes north in the summer and south in the winter, plays cards every afternoon and does little else.” She described another opponent of the bill, a lawyer who did not testify, as having a “psychological complex” where “[s]he thinks she hates all women.”

One of Mrs. Whitehurst’s allies made a perhaps more persuasive point to the senators — that women voters had defeated “some of those [legislators] who are no longer here,” and more positively promised them “our telephones still can be busy for you” at election time.

The logjam was broken. A bill to allow women jurors passed both houses and was signed by the governor to take effect on June 1, 1947.  As passed, the law exempted 12 counties from its requirements, but finally — for the first time — women would be serving on juries in Maryland and federal courts.

In the aftermath

Despite the opposition of the major bar associations to women jurors, the bench and bar promptly began efforts to prepare for the changes women jurors would bring. Baltimore trial attorney Anthony S. Federico told The Baltimore Sun that lawyers would now have to pay attention to what clothes they wear:

“I think women will expect lawyers to be neat, courteous and polite, and I want to be on the side of the case where the attorney takes those things into consideration. I don’t expect to win a case with flashy neckties and two-tone suits and I don’t expect to twist justice around with sartorial embellishments, but I hope to win respect of women jurors by continuing to be neat in appearance.”

Shortly after the law went into effect in June, Judge Michael J. Manley of Baltimore City’s Supreme Bench, the judge in charge of jury operations, issued a statement directed at potential women jurors informing them that they must give their correct age on the jury qualification questionnaire, and could not answer the question (as some had already done) by merely stating that they were over the minimum age of 25.

Despite the dour view on women jurors taken 10 years before by U.S. District Judge Coleman, it appears that the very first women jurors in Maryland were sworn to serve in federal court in Baltimore. On Sept. 3, 1947, U.S. District Judge Calvin Chestnut, noting the historical significance of the event, put two Baltimore women on the federal grand jury and selected five women for the petit jury panel.

A few days later, Baltimore City Judge Emory H. Niles seated three women for a civil trial jury in an automobile accident case and declared it “an important day in the development of justice in Baltimore city.”

Meanwhile, over in Criminal Court, Judge J. Abner Sayler vetoed a plan by court personnel to present the new women jurors with congratulatory notes and flowers. The elderly jurist announced that the first day of women jury service would not turn into a “Roman Holiday” and sternly reminded those present that the courtroom was a Hall of Justice, not a “place of mirth.”

As for the flowers, he informed his staff that he didn’t want his courtroom “to look like a funeral parlor” and had them taken away. The women were sworn, without ceremony or flowers, and began their service.

The next day, Supreme Bench Judge Joseph Sherbow picked a jury for a man charged with murder. The Baltimore Afro American newspaper reported that among the jurors in the pool for the case was Sara Whitehurst. When her name was called to be seated in the jury box, Mrs. Whitehurst must have been satisfied that her decades of struggle for women jury service would now appropriately culminate in her serving on one of the first such Maryland trial juries.

The moment of personal triumph did not last. As she settled in her seat, she was quickly challenged by one of the attorneys and struck from the jury. She was replaced by Mrs. Lillian H. Herbert, an African-American cafeteria worker, who survived the selection process and with her fellow jurors rendered a guilty verdict on a lesser charge of manslaughter with a recommendation of mercy.

In Baltimore County, it was only a month later when Phyliss C. Scott became the first woman to serve as “foreman” of a Maryland jury. The Evening Sun noted that the “young housewife smiled broadly when her name was first called” to decide the case of a woman who slipped and fell on ice outside of a Halethorpe tavern and was seeking $10,000 in damages. The jury returned a verdict for the tavern owner. The reporter noted that Mrs. Scott was “[a]ttired in a gray tweed coat suit with hat and gloves to match.”

There was no mention of what the male jurors wore.

Postscript

Although not selected to be on a jury herself in the opening months of women’s jury service, Sara Whitehurst must have smiled when she picked up her Evening Sun on Feb. 4, 1948, in her Guilford home adjacent to Sherwood Gardens and read the news. The day before, an all-women jury (including 10 “housewives”) had been picked for a civil case in Baltimore City and quickly returned a unanimous verdict without fuss or controversy.

The long march she began in 1931 had reached its destination.

The author was assisted in research for this article by U.S. Bankruptcy Judge James F. Schneider, Jeff Korman of the Enoch Pratt Free Library and Mary Jo Lazun of the Maryland State Law Library.

This column is one in an occasional series on jury trial issues by Howard County Circuit Judge Dennis M. Sweeney, retired, who chairs the Judiciary’s Committee on Jury Use and Management. Judge Sweeney can be reached at judgesweeney@mac.com

SOURCE LIST:

Books:

Neil Vidmar & Valerie P. Hans, AMERICAN JURIES: THE VERDICT 73-74 (2007)

Articles:

Holly J. McCammon, Soma Chaudhuri, Lyndi Hewitt, Courtney Sanders Muse, Harmony D. Newman, Carrie Lee Smith, and Teresa M. Terrell. “Becoming Full Citizens: The U.S. Women’s Jury Rights Campaigns, the Pace of Reform, and Strategic Adaptation.” American Journal of Sociology 113:1104-1148 (2008)

Gretchen Ritter, “Jury Service and Women’s Citizenship before and after the Nineteenth Amendment.” Law and History Review 20.3 (2002): 75 pars. 8 May 2010.

Joan Bossman Gordon, “Women of the Baltimore Bar,” published in the Histories of the Bench & Bar of Baltimore City, In Commemoration of the Bicentennial of Baltimore City, 1797-1997 (1997).

Carole L. Hinchcliff, “American Women Jurors: A Selected Bibliography,” 20 Ga. L. Rev. 299 (1986).

Florence Elizabeth Kennard, “Maryland Women Demand Jury Service,” Equal Rights (March 7, 1931).

Newspaper Articles:

“Mrs. Whitehurst’s Funeral is Scheduled for Tuesday,” The Baltimore Sun (Feb. 27, 1971)

“First All-Woman Jury Awards $875 in Accident Case,” The Baltimore Sun (Feb. 5, 1948)

“All-Woman Jury Gives Verdict,” The Evening Sun (Feb. 4, 1948)

“Jury Distinction For Woman,” The Evening Sun (Oct.10, 1947)

“Eleven Women Like Jury Duty,” The Baltimore Sun (Sept. 27, 1947)

“First Woman Grand Juror Placed Upon Committee,” Baltimore Afro-American (Sept. 13, 1947)

“Judge Lauds Women Jurors,” The Evening Sun (Sept. 12, 1947)

“Judges Favor Women Jurors,” The Baltimore Sun (Sept. 9, 1947)

“Lawyers’ Attire May Count More With Women on Jury,” The Baltimore Sun (Sept. 7, 1947)

“First Women Take Jury Oath Here,” The Evening Sun (Sept. 3, 1947)

“Women Jurors Serve Willingly, Judge Says,” The Evening Sun (Aug. 30, 1947)

“Women Could Improve Juries–But Will They?” The Baltimore Sun (Aug. 28, 1947)

“Women Jurors Voice Feelings,” The Baltimore Sun (Aug. 26, 1947)

“Women To Serve On County Juries,” The Evening Sun (Aug. 18, 1947)

“First For Jury, She Isn’t Glad,” The Evening Sun (Aug. 18, 1947)

“Women Obey Court’s Call,” The Baltimore Sun (June 10, 1947)

“Maryland Summonses Women to Jury Duty for First Time in History of State,” Baltimore Afro-American (June 7, 1947).

“Women Warned to Give Right Age,” The Baltimore Sun (June 3, 1947)

“City To Question 2,800 Women As Juror Prospects,” The Baltimore Sun (April 12, 1947)

“Poor Prospects For a Bill That Should Make Everybody Happy,” The Baltimore Sun (Feb. 23, 1947)

“Women Juror Bill Advances,” The Baltimore Sun (Feb. 21, 1947)

“Women’s Jury Bill in Danger,” The Baltimore Sun (Feb. 12, 1947)

“Jury Service? — Positively No! Says Colonial Dames Leader,” The Evening Sun (Feb. 3, 1947)

“Women Campaign For Jury Service,” The Baltimore Sun (Jan. 30, 1947)

“Ruling Lacks Effect Here,” The Baltimore Sun (Dec. 11, 1946)

“Assembly Bans More Woman-Juror Bills,” The Baltimore Sun (March 16, 1945)

“Lawyers Differ on Woman-Juror Bill,” The Baltimore Sun (Feb. 27, 1945)

“Lawyers Vote 210 to 137 Against Women on Juries,” The Baltimore Sun (Feb. 25, 1945)

“Perennial Woman Juror Bill Presented in House,” The Baltimore Sun (Jan. 13, 1945)

“Opposes Placing Women on Juries,” The Baltimore Sun (March 2, 1937)

“Jury Service Hit by Mrs. Holloway,” The Baltimore Sun (Feb. 19, 1937)

“Finds Lady Jurors Better Than Men,” The Baltimore Sun (Oct. 2, 1935)

“Balk At Woman Jurors,” The Baltimore Sun (Feb. 9, 1922)

“Jurists Will Consider Calling Woman Jurors,” The Baltimore Sun ( Jan. 5, 1921)

Cases:

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)

Hoyt v. Florida, 368 U.S. 57 (1961)

Strauder v. West Virginia, 100 U.S. 303 (1879)

Laws:

Laws of 1947, Chapter 595.

Opinions of the Maryland Attorney General:

32 OAG 121 (1947).