Braille Monitor                          March 2020

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The Supreme Court of Massachusetts Affirms Blind People are the Peers of Sighted People

by Marc Maurer

Marc MaurerFrom the Editor: Dr. Marc Maurer knows the law. He also knows about being blind and the way preconceptions and the law often interact to the disadvantage of blind people. When he sees this negative interaction, he tries to do something about it, and he asks those of us who rally around making lives better for blind people to help financially, spiritually, and economically. Since serving as the President of our national organization longer than anyone, he has focused most of his attention on finding problems blind people have with the law and setting them right. Here is what he says about a most important case in which we prevailed:

On January 30, 2020, the Supreme Judicial Court of Massachusetts handed down an opinion in the criminal law case of Commonwealth of Massachusetts v. Lawrence L. Heywood affirming the conviction of the defendant of assault with “serious bodily injury.” In August of 2019 the National Federation of the Blind filed a brief in the case. Ordinarily the Federation does not participate in matters involving accusation of crime. However, in the Heywood case the jury that convicted the defendant included a blind person. Mr. Heywood appealed his conviction because he said he had not had the fair trial guaranteed by the Sixth Amendment to the Constitution of the United States. The blind juror could not effectively evaluate the evidence against him, he said. A conviction of crime can be secured only if the accused person is judged by an impartial jury of his peers who possess the capacity to make the judgments required for a fair trial. The blind person could not independently assess photographic evidence in the case, said the defendant, and the conviction must be overturned. Equality for the blind in participating in civic activities, such as serving on juries, must not be permitted to deprive a defendant of the right to a fair and impartial hearing. This line of reasoning is a central tenet in the argument of Mr. Heywood for reversal.

The complaining witness in the case, who said that he had been injured by Mr. Heywood, was attending a basketball game in the fall of 2015. Mr. Heywood approached him, and without warning, punched him in the face with sufficient force to fracture his cheekbone, fracture the orbital bone around the eye, and to cause retinal bleeding. Mr. Heywood was charged with assault and battery with serious bodily injury. The judge in the trial court proceeded with jury selection and seated a jury which included juror number six, who is blind. After the jury found the defendant guilty as charged, the appeal was filed. The Supreme Judicial Court learned of the appeal and moved the case to the highest tribunal in Massachusetts. The court also asked interested parties who had specialized knowledge of the subject of blindness to present amicus curiae briefs, and the National Federation of the Blind, the National Federation of the Blind of Massachusetts, and the Disability Law Center in Massachusetts accepted the offer.

At one time in many parts of the United States, blind people were prohibited from serving on juries. The National Federation of the Blind sought to change this by drafting state legislation that could be used to remove the prohibition. Especially in the 1960s and ’70s, a campaign to change state laws occurred. Jury service for the blind was sufficiently unusual that articles about participation on juries appeared in the Braille Monitor when our members found themselves in the jury box. Although the laws have been changed, blind people still find themselves routinely removed from jury pools. Sometimes the courthouse officials who manage the jury pool indicate to blind individuals that they need not proceed to a courtroom because to do so would be difficult or dangerous. If the proposed jury members must move from one building to another, must cross a street, must proceed up and down stairs, or must navigate a complicated hallway system, the blind participants in the jury pool are directed to wait without being assigned to participate.

When the potential jury members are in the courtroom, judges sometimes dismiss blind persons from consideration as a matter of course. In the National Federation of the Blind, we attempt to instruct court personnel on the suitability of blind people to serve on juries, but the prejudicial attitudes that are carried into the courtroom remain. Whether blind people are permitted to serve or not is hit or miss. However, it is most unusual for a person accused of crime to seek to have a conviction overturned on the grounds that blindness in itself is evidence of unsuitability for service on a jury, therefore the National Federation of the Blind sought to provide information. The court in Massachusetts might make the right decision, but we thought it would be good to offer perspective.

The brief we filed notes that the prohibition against jury service for the blind has been removed from state law throughout the United States. The last state to change its law was Arkansas, which removed its prohibition in 1994. Furthermore, not only have the prohibitions against jury service been removed from the law but positive provisions of statute prohibiting discrimination on the basis of disability have been added.

Perhaps of most significance in our argument to the court is that we reject the false dichotomy proposed by the language of the appellant. Mr. Heywood argues that having a blind person on his jury was a detriment to fairness. However, the experience brought to the deliberation process of a jury by a blind person adds a measure of depth to the decision-making that would not be available without the participation of that blind person. Consequently, having a blind person on the jury adds a measure of fairness that would be absent without it.

Take a fanciful example. The argument is sometimes made that beautiful people in the court are treated better than ugly ones. If Mr. Heywood had been ugly, (the deliberations of the court do not say), the jury might have been prejudiced against him because of his visual appearance. However, the blind juror would not be affected by this characteristic. A different set of information would be uppermost in the blind juror’s mind because of the altered mechanism of gathering information from that of other jurors. This offers a broader set of experience to the decision-making process in the jury room than would be available without it. The brief we filed rejects the false characterization of the blind person as a positive burden against fair decision-making that Mr. Heywood attempts to portray.

The Supreme Judicial Court held that blind people may not be prohibited from jury service, that justice is served by having the blind participate in jury service, and that in the process of deliberation the blind are competent decision makers.

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