January 22, 2014

Exclusion of gay individuals from the jury requires an explanation, a 9th Circuit panel rules.

The issue here is peremptory challenges, which ordinarily do not require explanation, but there is Supreme Court case law requiring explanation when these challenges seem to be based on race or sex. That is, the opposing lawyer can require the lawyer who challenged the would-be juror to give some reason other than race or sex for wanting to exclude this person. Should sexual orientation be treated the same way?

Unlike race and sex, a person's sexual orientation isn't openly visible unless you use stereotypes and inference, but in this case, the challenged individual had answered some questions that elicited answers about his "partner" that included the pronoun "he."
“The record persuasively demonstrates that” the juror “was struck because of his sexual orientation,” [Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel]. “Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation,” he added....
How will this work in future cases? Will lawyers accuse lawyers of excluding someone because he is or seems gay? Someone called in for jury duty will be subjected to lawyers arguing over whether he is perceived as gay?

Anyway, the 9th Circuit panel determined that the Supreme Court's DOMA case, United States v. Windsor, required heightened scrutiny for discrimination based on sexual orientation:
"We have analyzed the Supreme Court precedent... by considering what the court actually did, rather than by dissecting isolated pieces of text."
That's a useful prod. The Supreme Court — if it's going to have a system of levels of scrutiny — ought to tell us outright what level it's on. 

17 comments:

Bill said...

The 9th Circuit is right, but only because the Supreme Court said, dubiously, "that when the gender of the juror coincided with the subject matter of the case, the potential for an impermissible strike based on sex increases substantially."
No reason not to extend that to sexual preference, but the whole process leads to a one way ratchet toward a biased outcome.
What if someone comes in with a crucifix, and a "Leviticus: Love it or get Smited" t-shirt. Are they subject to a Batson analysis? No. What if a person simply stated they were evangelical? Are they covered too?
In this case, Abbot was accused of jacking up the price of HIV drugs. It is not "discriminatory" in the nefarious sense, but completely rational, to reject a gay juror in that instance.
Where the panel might be wrong is in rejecting the after the fact rationales posited by Abbot's counsel.

The Drill SGT said...

The nullification impacts are clearly higher in a criminal case, than in a civil cases, though most of the criminal matters I could posit would be crimes against gays where the nullification would seem not to matter. I guess you have the gay, "assault with the AIDS infected sex organ" cases...

I don't see much of an impact, but don't think judges should stretch the penumbra either...

James Pawlak said...

Would such questioning/arguments be had in the presence of the jury panel? If so, it might prejudice those who are there.

Real American said...

they're on the make it up as you go along/yanked straight out of Kennedy's ass level.

Pogo is Dead said...

The US judicial system is now just an unelected PC leftist hammer, the bishops in the government-media religion, determining which parts of society warrant the nihil obstat and imprimatur.

It's a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.

The only reason to follow legal matters is to find out which new penumbraic sins you're guilty of.

Renee said...

One's sexual orientation is present, whether or not you are in a sexual relationship or sexually active.

There are several behavioral risk factors to HIV and it isn't just men who have sex with men, just list all of them.

I've been test for HIV several times, it is just the norm with pregnancies in Massachusetts.

I'm monogamous and heterosexual and I trust my husband to be the same, but the medical field just assumes test everyone instead of guessing.

PB Reader said...

since counsel on either side has a limited number of exclusions, this shouldn't really matter

Hagar said...

The idea of peremptory challenges is that they do not require explanation. To carve out exceptions makes no sense.

Thus coundel may exclude redheads because they remind him of his ex-wife who was a redhead, but if a redhead also is a homosexual, he must reassure the judge that it is the red hair he objects to, and not the homosexuality?

Hagar said...

...counsel...

garage mahal said...

The US judicial system is now just an unelected PC leftist hammer

The pro-corporate Supreme Court which ruled in favor of the Chamber of Commerce 78% in which the Chamber filed amicus briefs? Good one.

garage mahal said...

I replied in the wrong thread I think. Whoops.

Hagar said...

Or, with more meat in it, the prospective juror is a Lutheran or Presbyterian and an engineer, i.e., a "hanging juror," and defense counsel wants him off, but the judge says no, it is just your prejudice against "gays."

Whatever the purpose of peremptory challenges is, it surely is not for the judge to select the jury according to his prejudices?

lgv said...

There is no such thing as a peremptory challenge. That's my take. I thought there was such a thing, but apparently it changed based upon some previous court decision. Now, we begin adjusting the exceptions, but the mere existence of an exception means it is no longer peremptory.

Just end the pretense. Now the judge gets to decide on every exclusion, thereby becoming the selector of the jury him or herself.

Michael K said...

Oh, if "Judge Stephen R. Reinhardt" says so it must be true.

No mention of the nullification of Prop 8 by a judge who, after ruling unconstitutional the proposition approved by 60% of voters, married his gay lover.

Beldar said...

There IS no meaningful analysis of Supreme Court precedent on this subject. Batson and its progeny are completely unworkable. I've been I trial lawyer, picking juries, for 33 years now, and I can't tell you whether I or anyone else in any of the dozens of jury cases I've tried has violated it, and neither can any of the other lawyers or judges from those cases. All that is certain is that if someone properly makes and preserves the relevant objections, then some appellate court may randomly, arbitrarily, and perniciously decide to throw out everyone's efforts regardless of the actual fairness of the trial.

I wrote at more length about the practical impossibility of enforcing this line of precedent, and the pathetical quality of the SCOTUS' attempts to do so, here.

hombre said...

Is the 9th Circuit pretending that gays and lesbians are universally trustworthy to "reason fairly" on issues that relate, however tenuously, to homosexuality?

Otherwise, peremptory challenges should be left alone or the 9th Circuit should stop pretending they are peremptory.

Anonymous said...

This whole idea of peremptory challenges sticks in my craw. Jury selection is the only place 90% of the public sees the legal system first-hand, and it's rampant discrimination. The court should ask prospective jurors if they know anyone in the case, have any interest in it, any hardships... If not, you're on the jury. Period.