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Wednesday, May 11, 2011

Portland's "Experimental" Woman Jury, Part I, November 30, 1912

Jury service embodies many aspects of the rights and obligations of equal citizenship. Citizens who serve on juries participate in the exercise of the laws and the democratic process beyond the act of voting. Many women and their supporters in Oregon in 1912, as elsewhere, saw this as both a right (the ability to serve had been limited to men and they wanted to exercise this right) and an obligation (taking the time to serve) of citizenship. They also believed that having a "jury of one's peers" was an important right for female defendants.

Chapters in two thoughtful monographs explore the general U.S. story of jury service for women: Linda Kerber's No Constitutional Right to be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998) and Gretchen Ritter's The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order (Stanford: Stanford University Press, 2006). Kerber (p. 131) notes that in the U.S. the "founding generations understood juries as the place where the people continued their participation in lawmaking." But questions about whether women and men were "peers" and if women should participate as full citizens continued to the twentieth century and remain today. Ritter (p. 103) notes that "the concept of jurors as peers suggests very different ways of thinking about  . . . the ways that women bring their lived experiences to the exercise of their civic duties. Further, jury service is a more substantial commitment, in terms of time and effort, to civic participation -- a commitment that brings people more fully into the workings of the state and more intimately into contact with other citizens." 

These questions came front and center in the Oregon jury service debate, a story that has not been studied deeply by other scholars.

As we've seen, Oregon attorneys were divided over whether the achievement of woman suffrage meant that women could serve on juries and that November Attorney General Andrew Crawford had not yet announced a definite opinion on the matter. And Bend suffragist Hattie Corkett had served as "forewoman" of a jury there during the week of November 25, 1912, likely the first in Oregon to do so.

On Saturday, November 30, judges and attorneys in a Portland police court decided to have an "experimental" all-female jury. Oregonians were debating the question of women's jury service, Bend had been first to seat a woman juror and just that day, November 30, Governor Oswald West signed the suffrage proclamation written by the aging icon Abigail Scott Duniway at the Portland home of Viola Coe. 

Portland's two evening papers reported the news of the all-female jury on their front pages and introduced a variety of themes that would continue to be part of the story. The Evening Telegram situated the case in the middle of the debate about women and jury service. Municipal Court Judge George Tazwell, Deputy City Attorney John Cahalin and defense attorney Will Farrell met and agreed to "waive any legal bar to the use of women as jurors" in the case of Marcelle Bortelle "charged with vagrancy." It would be the first all-female jury, a point not lost on the participants. The question was a disputed one "among attorneys," the Telegram story noted, "as some assert that the enfranchisement of women at the recent general election modifies the state constitution, and consequently the code which is based on the constitution, while others assert that an amendment to the code must be made before women can be eligible to serve." This report also indicated that the court suffered from a "scarcity of male jurors in recent trials" (a theme that will continue in this story as well).
"First Oregon Jury of Women to Try Woman," Portland Evening Telegram, November 30, 1912, 1.
The Oregon Journal report echoed the news that the case would feature the first "complete jury" of women in the state but added important new details. Marcelle Bartell (or, as the Journal noted, "a woman giving the name of Marcelle Bartell") was charged with "conducting a house of ill repute at Fourth and Burnside streets." Police had her "place under surveillance for several days" and then raided it, arresting the "Bartell woman" that Thursday evening.

These new details suggested that "good" women of Portland, performing their civic duty, would be called to judge a "bad" woman who ran a house of prostitution. Were all of these women "peers" because of their gender? Could women better judge other women? Might they be more harsh than male jurors in judging a madame? Would "good" women be sullied by the details of illicit sex that would come up in the trial-- something that opponents of women's civic equality charged would be the downfall of womanhood, morality, and civilization? Participants and reporters would magnify these themes in the coming days.

The Journal story also noted that "speculation around the municipal court circles as to the outcome is now made; even men are offering to bet on the outcome."

"Woman Jury Will be Used in Trying Case in Municipal Court," Oregon Journal, November 30, 1912, 1.
Who would be subpoenaed? How would the trial evolve? Come back for the next installment.