or looking downward," Kaiser, Juries, Blindness and the Juror Function, 60 Chicago Kent Law Review 191, 200 (1984), and permits a blind juror to make credibility assessments just as the juror's sighted counterparts do.
Interestingly, at least ten states -- Oklahoma, California, Virginia, Oregon, Texas, South Carolina, Washington, Massachusetts, Wisconsin, and New York -- have enacted statutes that forbid the exclusion of blind persons from jury pools solely because of their disability.
Similarly, the United States District Court for the District of Columbia allows blind persons to serve as jurors, if they so elect. In many of these jurisdictions, visual impairment is not a per se disqualification, but may result in the exclusion of a blind individual from the jury pool if the case involves a significant amount of physical evidence or if the right to a fair trial is otherwise threatened by that juror's service. See, e.g., Commonwealth v. Susi, 394 Mass. 784, 477 N.E.2d 995 (Mass. 1985); Jones v. New York City Transit Auth., 126 Misc. 2d 585, 483 N.Y.S.2d 623 (N.Y. Civ. Ct. 1984).
Similarly, in the United States, there are several active judges who are blind. Indeed, it is highly persuasive that Judge David Norman, a blind person, served as a judge on the Superior Court of the District of Columbia and presided over numerous trials where he was the sole trier of fact and had to assess the credibility of the witnesses before him and evaluate the documentation and physical evidence. Defendants have never claimed that "those trials were invalid because [Judge Norman] was blind." Beane Dep., at 23. It is thus illogical to suggest that all blind persons are unqualified to sit on a jury when a blind judge in the same Superior Court successfully fulfilled those very duties a blind juror would have to discharge. No distinction can be drawn between a blind judge's ability to make factual findings and the abilities of a blind juror.
In addition, the Superior Court admits persons who are deaf to jury panels and has never suggested that simply because they cannot hear, they cannot serve.
In fact, the Superior Court accommodates those individuals by providing sign language interpreters. Beane Dep. at 13, 24.
Yet, a deaf juror cannot hear a witness' words and cannot make credibility determinations based on inflection and intonation of voice, but still is able to make the requisite credibility determinations. Defendants obviously recognize deaf individuals' qualifications to serve on a Superior Court jury since no policy excluding deaf jurors exists. Applying the same logic to a blind individual demonstrates that although a blind juror cannot rely on sight, the individual can certainly hear the witness testify, hear the quaver in a voice, listen to the witness clear his or her throat, or analyze the pause between question and answer, then add these sensory impressions to the words spoken and assess the witness' credibility. Defendants' policy toward deaf jurors evidences a lack of prejudice towards those with hearing impairments and demonstrates their ability to look behind archaic stereotypes thrust upon disabled persons; it is thus difficult to fathom why the policy differs toward blind jurors.
Moreover, even if the individual does not initially appear to be "otherwise qualified," it must still be determined whether reasonable accommodation would make the individual otherwise qualified. Alexander v. Choate, 469 U.S. 287, 300-01, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985); see Harris v. Thigpen, 941 F.2d 1495, 1525 (11th Cir. 1991). In the instant case, no accommodation was offered to Galloway or to any other blind person. According to Galloway he was turned away after being expressly informed that blind jurors could not be accommodated. Plaintiff's Motion, Galloway Declaration, at 2. Plaintiff has established that, in many instances, accommodation could indeed result in an "otherwise qualified" individual. As noted above, sign language interpreters are provided to deaf individuals serving on Superior Court juries. A similar service could be employed for blind jurors.
With this type of "reasonable accommodation," a blind juror such as plaintiff should be able to serve satisfactorily in most cases.
In addition to the evidence presented showing that visual observation in not necessarily an essential function of a juror, Galloway introduced substantial evidence to support his individual qualifications to serve competently on a jury. Plaintiff's educational and employment history underscores the fact that he can, and does, make credibility determinations daily. Galloway has served in a number of executive positions in the private sector, the federal government, and the state government and is presently responsibly employed by the District of Columbia, one of the defendants herein. In these capacities, Galloway has been called upon to evaluate facts, weigh evidence, and make judgments. He assesses credibility by listening carefully to the content and consistency of a person's speech and pays particular attention to auditory clues: the rhythm of a person's breathing and the sounds of a person moving, for example.
Yet, just as no per se rule of exclusion should be employed against blind persons who wish to serve as jurors, no per se rule of inclusion should apply either. Plaintiff has never argued that he should be permitted to participate in every trial. Rather, he has consistently conceded that there may be cases in which it would be inappropriate for a blind person to serve as a juror -- cases in which there is a substantial amount of documentary evidence, for example -- and that the decision as to whether he should be empaneled in any particular case should be left to the Judge, the attorneys, and the voir dire process. In many cases, a blind juror can certainly provide competent jury service.
B. The Americans with Disabilities Act
It is equally obvious that the Superior Court jury system falls within the parameters of the ADA. Title II of the ADA, which became effective on January 26, 1992,
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.