SEXUAL ORIENTATION AND JURY SERVICE

  
Case law has evolved over the years in the area of how juries are selected (or to be more accurate, deselected). Most of the general public knows that before a trial begins, each side “strikes” a number of jurors that they do not want for a variety of reasons. However, there are rules that govern how this process takes place.

For instance, a lawyer cannot strike a juror solely on the basis of that juror’s race. If that strike is challenged by the other side, a race neutral reason must be given. If the race neutral reason is insufficient, that juror is placed back on the jury.

Well, recently a federal appeals court has extended this right to serve on a jury to gays and lesbians. Last week, a unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals held that striking someone from a jury pool because he or she is gay constitutes unlawful discrimination. Its 39-page decision came in an antitrust and contract dispute between two rival drug companies over the price of a popular AIDS drug.

The 9th Circuit, widely considered by both conservatives and liberals as the most liberal appellate court in the United States ruled that potential jurors may not be removed from a trial during jury selection solely because of sexual orientation, extending to gays and lesbians a civil right that the U.S. Supreme Court has previously promised only in the areas of gender and race. However, the high court has never ruled on whether those protections apply to sexual orientation.

A lawyer for Abbott Laboratories used one of his allotted preemptory challenges to remove a potential juror who had referred to a male partner and having friends with AIDS during questioning. The jury that was eventually seated mostly ruled in favor of Abbott.

Because the gay juror was taken off the case without justification, the 9th Circuit reversed the 2011 verdict and ordered a new trial.

“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,” Judge Stephen Reinhardt wrote for the panel. “Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.”

The 9th Circuit panel cited the Supreme Court’s decision last June that struck down part of the federal law that prevented the government from recognizing same-sex marriages as the basis for its finding that removing people from juries because they are gay is unconstitutional. The Supreme Court’s recent opinion “refuses to tolerate the imposition of a second-class status on gays and lesbians,” Reinhardt said.

While this case has raised awareness of a potential third protected group of people that may or may not possess the right to serve on a jury, the final word on this issue has not been uttered. The ruling by the 9th Circuit will probably be appealed. This appeal will likely be heard by the United States Supreme Court in the future.

The ruling by the 9th Circuit will not apply to jury trials in Georgia for now. Georgia resides in the 11th Circuit, not the 9th. Until the United States or Georgia Supreme Court address this issue, Georgia law, which recognizes only race and gender as protected groups in the jury selection process, will remain the same.