49 Mass. App. Ct. 723 | Mass. App. Ct. | 2000
During jury selection, the Superior Court judge suspected that counsel for the defendants was using peremptory challenges to remove women from the jury. The judge restored to the jury two of the women whom the defense had challenged, and both sides thereafter announced themselves content with the jury’s makeup. After five days of trial, the jury returned verdicts for all defendants. The plaintiff now urges as her sole ground on appeal that the jury was unconstitutionally purged of women. We decide that the plaintiff waived unspoken objections, if any, that she had to the composition of the jury, and we affirm the judgments. The nature of the case on trial was an action claiming unlawful discharge by the University of Massachusetts Medical School in retaliation for the plaintiff having made a complaint that her department chairmen had created a sexually hostile working environment. See G. L. c. 151B, § 4(4).
1. The jury impanelment. In the instant case, there were fifty-five persons on the venire when jury selection began: thirty-four men and twenty-one women. Of those fifty-five, the judge determined that twenty-eight stood indifferent: twenty-one men and seven women. Ten men and four women were then seated.
The plaintiff exercised seven peremptory challenges, six against men and one against a woman. Five men and two women replaced the jurors who had been challenged. The plaintiff then challenged one of the male replacements, and a woman took his place. Now the jury stood at eight men and six women and the plaintiff pronounced herself content. When defense counsel made her peremptory challenges, they were directed against five of the women who had been seated in the jury box. The judge’s antennae went up; he called defense counsel to the side bar and asked her why she had challenged “every woman on the jury.”
Defense counsel explained that the first two jurors she had
At that point in the impanelment process, plaintiff’s counsel requested a mistrial. The judge expressed his displeasure with the last round of challenges. Defense counsel again protested that her motives were pure. The judge said he was prepared to accept the first three challenges by the defense
“Put them back on if that is going to create some issue on appeal that is worrisome to Your Honor. Let them back on
Plaintiff’s counsel said, “I would prefer to put them back.” The two prospective women jurors were identified and reseated, replacing the last two men chosen from the venire. The judge asked, “Is that everything now?” to which plaintiff’s counsel responded, “The plaintiff is content.” The defendants also pronounced themselves satisfied. The jurors — eleven men and three women — were sworn, and the trial proceeded.
2. Discussion. This is not a case like Commonwealth v. Fruchtman, 418 Mass. 8, 12 & n.7, cert. denied, 513 U.S. 951 (1994), in which the defense claimed it had been denied peremp
An objection to any aspect of how a judge conducts a trial must be made sufficiently timely so that the judge can reflect upon the objection and correct a mistake. Rule 46 of the Massachusetts Rules of Civil Procedure, 365 Mass. 811 (1974), embodies this principle in civil cases. The rule dispenses with formal objections to rulings but requires “that a party, at the time the ruling or order of the court is made or sought, make[] known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor . . . .” The trial judge in this case had broad discretion in diagnosing and remedying the efforts of a party to exclude women from the jury. See Commonwealth v. Odell, 34 Mass. App. Ct. 100, 101-102 (1993). If the plaintiff had an objection to the composition of the jury, she waived it by unmistakably letting the judge understand that he had remedied the defendants’ attempt to purge the jury of women. She led the judge and the jurors into a five-day trial. She may not now base an appeal on objection to the composition of the jury, an issue that had been raised and resolved to the plaintiff’s apparent satisfaction.
Judgments affirmed.
Actually, counsel had left unchallenged one woman juror.
At an earlier stage of the proceedings the judge had remarked as to the third juror challenged by the defense, “I don’t buy the reason you’re giving me.
At the time plaintiff’s counsel expressed himself content with the jury, he still had several peremptory challenges to bum.