Scratching the Veneer of “Venireman”
by Ken Bresler
A version of this article appeared in Massachusetts Lawyers Weekly, June 6, 2016
When is a woman named Marilyn a man? When Justice Clarence Thomas calls her a “venireman.”
In his dissent to the recent jury selection case, Justice Thomas discussed “the prosecution’s race-neutral reasons for striking veniremen Eddie Hood and Marilyn Garrett.” It wasn’t that “men” means “men and women” to Justice Thomas, because he later used “venireman” to refer specifically and individually to Marilyn Garrett.
He wrote in Foster v. Chatman, issued on May 23, 2016, that “the prosecution reasonably struck venireman Garrett…because it feared that she would sympathize” with the defendant. He also wrote about “handwritten lists describing seven veniremen, including Garrett, but her race is not mentioned.” He knew that venireman Garret was a “she” and a “her.”
The current edition of Black’s Law Dictionary doesn’t directly define “venireman.” The 10th edition, published in 2014, has this definition of “veniremember”: “A prospective juror; a member of a jury panel. – Also termed venireman, venireperson, talesman.”
The U.S. Supreme Court has used “veniremember ” – one word – only once without quoting another source, such as a lower court or a brief. Chief Justice William Rehnquist used it throughout Wainwright v. Witt, 469 U.S. 412 (1985). He also used “venireman” and “veniremen.” At one point, he used “venireman” and sex-inclusive language: “Later cases in the lower courts state that a venireman may be excluded only if he or she would ‘automatically’ vote against the death penalty….” Id. at 419. Rehnquist’s use of sex-inclusive language – “veniremember” and “he or she” – may or may not have been a veneer, but in any case, it was a start.
A court’s first reported use of “venireperson” was in 1974 by the Seventh Circuit, at least according to Westlaw. United States v. Staszcuk, 502 F.2d 875, 882 (7th Cir. 1974). A U.S. Supreme Court decision first used “venireperson” in 1986. Lockhart v. McCree, 476 U.S. 162, 184 (1986)(Marshall, J. dissenting).
What’s the plural of “venireperson”? The Supreme Court seems to prefer “venirepersons,”e.g., Campbell v. Louisiana, 523 U.S. 392, 400 (1998), apparently never having used “venirepeople.” Other courts do use “venirepeople.” E.g., United States v. Wilson, 806 F.2d 171, 174 (8th Cir. 1986).
The Supreme Court’s Style Guide, its in-house non-binding manual for justices and staff, lists “venire member” and “venire person,” both as two separate words. It does not indicate whether the plural of “venire person” is “persons” or “people.” Justice Thomas’s recent use of “veniremen,” and “venireman” does not comply with the style guide. Past uses of “veniremember” and “venireperson” didn’t comply either, at least not with the 2013 version, the one that Jack Metzler recently edited and published.
And if a venireman identifies as a venirewoman, which restroom to use?
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Addendum to the Massachusetts Lawyers Weekly article: “The proper term” for a female venire member “is veniretrix,” quipped Joe Patrice, an editor at Above the Law. That blog mentioned this article on June 9, 2016.