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Appellate Courts Rule on Discrimination Against Gay Jurors

Posted on: May 7th, 2018 by Art Leonard No Comments

 

On May 3, two appellate courts issued rulings on appeals of criminal convictions in which gay men in the jury pool were dismissed on “peremptory challenges” by the prosecuting attorneys.  The California 3rd District Court of Appeal decided that the defendant in People v. Douglas, 2018 Cal. App. LEXIS 403, a gay man, is entitled to a new trial.  The Nevada Supreme Court ruled in Morgan v. State, 2018 Nev. LEXIS 31, 134 Nev. Adv. Rep. 27, against the defendant’s appeal.  While both courts agree that striking jurors from a panel just because they are gay violates the constitution, they adopted different approaches to the issue.

Brady Dee Douglas’s former boyfriend, described in the opinion for the California court by Justice Elena J. Duarte as “a male prostitute,” told Douglas that a man, identified in the opinion as Jeffrey B., had “shorted him money following a prearranged sexual encounter.  Douglas and another man “tracked down Jeffrey and demanded payment,” but Jeffrey fled.  The men gave chase.  “During a high-speed freeway chase, [Douglas] pointed a gun at Jeffrey and shot at his car several times.”  The court does not mention how Douglas and his confederate came to be arrested.

Douglas was prosecuted on multiple charges and convicted by the jury.  The trial judge sentenced him to six years in prison.  Appealing his conviction, he objected that the trial judge allowed the prosecutor to strike the only two openly gay men in the juror pool using peremptory challenges.  During the jury selection process, parties can move to strike potential jurors “for cause” by convincing the judge that the juror could not fairly decide the case.  In California, each party is allowed to excuse a certain number of jurors without providing any explanation – called a peremptory challenge – but the other party can object if it appears that the challenger is engaging in unconstitutional discrimination based on the juror’s race, sex or sexual orientation.

Douglas’s lawyer objected to the peremptory challenges to the gay jurors.  The trial judge asked why they were being challenged. The prosecutor said he challenged one man because he had a close friendship with a public defender (a lawyer employed in defending indigent people charged with crimes) who had told the juror that she considered prosecutors to be on “the dark side.”  The other man was challenged based on his demeanor during voir dire, the prosecutor noting that the man leaned forward and seemed attentive when defense lawyers were speaking but leaned back and gave short and non-descriptive answers when the prosecutor was speaking.

Then the prosecutor added, as to both of them, “In addition, in a case in which the victim in the case is in a relationship and is not in a relationship with a female but is not out of the closet and actually was untruthful with the police about the extent of his relationship with a male prostitute, I think that that particular person’s testimony may be viewed with bias by those who are willing to be openly gay and not – not lie about it and can be frank about it, and he would view that as a negative character trait, and an individual who attempts to maintain given whatever grave idea, sexuality he has, but is willing to lie about it.  So I think there is a number of reasons, both specific to the case that are sexuality neutral, not – I’m not asserting in any way that is an adequate basis for a Wheeler motion, but even given that I think there are bases not only in their reaction in court to answering questions, but also given the specific facts of this case.”  The quote above is from the transcript made during jury selection, which suggests the prosecutor is verbally challenged or the court reporter had trouble keeping up with the statement.  A Wheeler motion relates to a California Supreme Court opinion, People v. Wheeler, 22 Cal. 3d 258 (1978), concerning objections to peremptory challenges.  Clearly, the prosecutor assumed that openly gay men would be biased against a closeted gay witness (Jeffrey B.) who patronized escorts.

The defense attorney responded that “under that justification, anyone who is openly gay” would automatically be challenged, and the lawyers for both defendants formally objected.  The trial court denied the defense’s objection to the peremptory challenges, and excused the two gay men from the jury pool, after finding that the prosecutor’s objections to the two gay men were non-discriminatory justifications.  “In effect,” wrote Justice Duarte, “that was the rough equivalent to applying a mixed-motive analysis to the challenges,” although not entirely so because that trial judge had questioned “in passing whether a Wheeler motion based on sexuality discrimination was appropriate.”

In a prior ruling on Douglas’s appeal, this panel of the Court of Appeal sent the case back to the trial court, confirming that a Wheeler motion based on sexuality discrimination is appropriate, and directing the trial judge to reconsider whether these jurors should have been dismissed.  If not, a new trial would be needed. But Douglas petitioned for a reconsideration by the Court of Appeal, arguing that a mixed-motive analysis is inappropriate on a Wheeler motion, and that the verdict should be vacated and a new trial ordered because it was clear that the prosecutor challenged the jurors because they are openly gay.

The Court of Appeal agreed to reconsider its ruling, and amicus briefs were submitted by Equality California, Lambda Legal, and National Center for Lesbians Rights, and the Los Angeles County Public Defender’s Office.

In a rare move, the three-judge panel changed its mind and decided, by a vote of 2-1, that a mixed-motive analysis is improper in such a situation, so the conviction must be vacated.

Justice Duarte summarized the decision simply: “This case is about fairness and equality in our criminal justice system.  When a party exercises a peremptory challenge against a prospective juror for an invidious reason, the fact that the party may also have had one or more legitimate reasons for challenging that juror does not eliminate the taint to the process.  We reject the application in these circumstances of the so-called “mixed motive” or “dual motive” analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision.  We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”

In this case, the prosecutor assumed that openly gay men as jurors would be biased against the victim, a closeted man who hired escorts, when the defendant was an openly gay man.  By this thinking, any openly gay man, even if he swore during voir dire that he could be unbiased, would be presumed to be biased and excused from the jury.  This is exactly the kind of thinking that the U.S. Supreme Court was combatting in the leading case of Batson v. Kentucky, 476 U.S. 79 (1986), where it condemned the practice of prosecutors using peremptory challenges to keep African-Americans off juries in cases involving African-American parties.  This issue isn’t just one of fairness as between the parties, but also fairness to the potential jurors. The Supreme Court observed that people called to jury duty should not suffer discrimination based on bias and stereotypes about them.  Citizens have an equal right to serve on juries, regardless of their race or, as the California courts have held, their sexual orientation.

Associate Justice Harry Hull, Jr., argued in his dissenting opinion that the mixed-motive analysis was the correct one, that the defendant was tried “before an impartial judge and found guilty beyond a reasonable doubt by an unbiased jury while represented by competent counsel.”  He objected to the idea of vacating this verdict where, according to him, “the record is devoid of any evidence showing the non-neutral reason was determinative in striking the prospective jurors or that the two facially valid reasons were unsupportable.

Of course, vacating the verdict is not the end of the case, since the prosecutor can retry the defendant.

In the Nevada case, a criminal prosecution in which the defendant was African-American, sexual orientation was not really an issue.  However, the defense objected to the prosecution’s use of a peremptory challenge that kept a gay man off the jury after he had expressed approval of media criticism of the police in their dealings with African-Americans.  The prosecution relied on this comment to justify its peremptory challenge, but the defense argued that heterosexual jurors who expressed similar views had not been excused from the panel.

The Nevada Supreme Court ruled that the trial judge had correctly overruled the defendant’s challenge to the removal of the gay juror.  However, before stating that conclusion Chief Justice Michael Douglas wrote for the court, “Before addressing Morgan’s contention that the district court erred in  overruling his Batson challenge based on sexual orientation, we take this opportunity to first address whether sexual orientation should be recognized under Batson – a novel issue before this court.  In answering in the affirmative, we align this court with the Ninth Circuit.”

The reference is to the U.S. Court of Appeals for the 9th Circuit, which ruled in a 2014 case that as a result of the U.S. Supreme Court’s ruling striking down the Defense of Marriage Act in 2013, it appeared to the 9th Circuit judges that the Supreme Court was treating sexual orientation discrimination as meriting “heightened scrutiny” in equal protection cases.  This is, in fact, the test for whether a party can challenge discrimination in the jury selection process.  If it appears that a party is trying to eliminate jurors due to a characteristic that gets heightened scrutiny in a constitutional discrimination case, the other party can bring a Batson challenge, and the reasons for striking the juror become a subject of inquiry for the court.

The Nevada Supreme Court found the 9th Circuit’s reasoning persuasive, particularly noting that this was not just a question of fairness for the litigants but also for prospective jurors, quoting the 9th Circuit opinion, which stated that “strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rights and rituals.” Such strikes “deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

Turning to the peremptory challenge in this case, the court held that the trial judge was correct to allow it over the defense’s objection.  As in the Douglas case, there were two jurors in the pool for Morgan’s case who revealed by their answers during voir dire that they were gay.  But the prosecutor challenged only one of them, and the prosecutor did not bring a peremptory challenge to the other gay juror.  “Accordingly, there is no pattern of strikes against gay members, and no disparate treatment of gay members,” wrote Chief Justice Douglas.  Furthermore, he noted, “the nature of Morgan’s criminal case did not involve an issue sensitive to the gay community.  Therefore, because we are not convinced that the totality of the circumstances gave rise to an inference of discrimination, Morgan failed to make out a prima facie case of discrimination.”  The prosecutor had also given an explanation having nothing to do with the juror’s sexual orientation, the juror’s approval of media criticism of the police, and the court found this a satisfactory reason, noting that some heterosexual jurors may have voiced criticisms, but they were not as strongly stated as by the gay potential juror.

It is possible that the California Court of Appeals would have agreed with the Nevada Supreme Court’s handling of the case, since the Nevada ruling did not embraced a mixed-motive analysis, but instead concluded that there was no basis to infer that the challenged juror’s sexual orientation had anything to do with the prosecution’s decision to keep him off the jury.

9th Circuit Holds Sexual Orientation Requires Heightened Scrutiny in Gay Juror Case

Posted on: January 21st, 2014 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled today in Smithkline Beecham Corp. v. Abbott Laboratories that a new trial has to be held because Abbott, the defendant in a civil suit involving claims about the pricing of HIV medications, used one of its “peremptory challenges” to exclude a gay man from the jury. The court found that excluding people from a jury because they are gay violates the Equal Protection Clause of the 14th Amendment, under the 1986 Supreme Court ruling in Batson v. Kentucky. As a necessary part of its ruling, the 9th Circuit panel concluded that sexual orientation discrimination claims are subject to “heightened scrutiny,” a doctrine that makes them more likely to succeed and that may have a significant impact on pending marriage equality cases in Nevada, Arizona and Oregon.

In Batson, the Supreme Court held that excluding a potential juror because of his race violated the 14th Amendment. The court explained that such discrimination in jury selection would “touch the entire community” because it would “undermine public confidence in the fairness of our system of justice,” and that proof of such discrimination was grounds for reversing a trial verdict and ordering a new trial. In a subsequent case, the Supreme Court extend Batson to discrimination based on sex, but indicated that “parties may exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.” Race is subject to “strict scrutiny,” and sex is subject to “heightened scrutiny.” In order to decide whether the jury strike in this case came within the Batson precedent, the 9th Circuit had to decide whether sexual orientation discrimination is subject to “heightened scrutiny.”

In past decisions, the 9th Circuit has rejected “heightened scrutiny” for sexual orientation discrimination claims, and normally a 9th Circuit panel would follow those precedents. But, in an opinion by Judge Stephen Reinhardt, the panel noted that the Supreme Court’s decision last June in United States v. Windsor has rendered the past 9th Circuit decisions obsolete. Even though the opinion for the Supreme Court by Justice Anthony M. Kennedy did not state explicitly what standard of review the Court was using in striking down Section 3 of DOMA, Judge Reinhardt asserted that the Windsor court was applying some form of heightened scrutiny in that case.

Reinhardt reached this result by a probing reading of Kennedy’s opinion, showing that what the Supreme Court actually did bore the hallmarks of a heightened scrutiny case. Under rational basis review, a statute would be presumed to be constitutional and would be upheld, despite its discriminatory effects, if the Court could hypothesize any rational justification for it. But the Supreme Court did not presume Section 3 to be constitutional, and paid no attention to the post-hoc justifications argued by former Solicitor General Paul Clement on behalf of a House of Representatives Committee. Instead, the Supreme Court focused on the legislative history of DOMA, which showed that it was enacted specifically to discriminate against gay people on grounds of moral disapproval. Justice Kennedy focused on Congress’s “avowed purpose” for enacting DOMA. “The principal purpose,” he wrote, “is to impose inequality, not for other reasons like governmental efficiency.” “The result of this more fundamental inquiry,” wrote Judge Reinhardt, “was the Supreme Court’s conclusion that DOMA’s ‘demonstrated purpose raised a most serious question under the Constitution’s Fifth Amendment.’ Windsor thus requires not that we conceive of hypothetical purposes, but that we scrutinize Congress’s actual purposes. Windsor’s ‘careful consideration’ of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.”

Reinhardt also noted that the Windsor court put the burden on Congress to “justify disparate treatment of the group,” and under rational basis review, the burden is placed on the challenger to prove that there is no rational justification, not on the government to justify its discrimination. And Reinhardt pointed out that in rational basis cases, the court is “ordinarily unconcerned with the inequality that results from the challenged state action,” but that in Windsor, the Court expressed great concern about the inequality imposed on married same-sex couples by DOMA.

“Windsor refuses to tolerate the imposition of a second-class status on gays and lesbians,” wrote Reinhardt. “Section 3 of DOMA violates the equal protection component of the due process clause, Windsor tells us, because ‘it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.’ Windsor was thus concerned with the public message sent by DOMA about the status occupied by gays and lesbians in our society. This government-sponsored message was in itself a harm of great constitutional significance.” From this, Reinhardt concluded, “Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.” This, of course, is the hallmark of heightened scrutiny in equal protection cases. “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.”

In this case, Abbott had an interest in avoiding seating jurors that might be biased against it because it was being charged with improperly inflating the price of HIV medications whose patents it controlled. During the voir dire questioning of potential jurors, it became clear that one man was gay due to his references to his partner. The attorney for Abbott questioned him briefly, but elicited no answers that indicated any particular bias against his client. However, he asked to strike the juror. When the attorney for the other party objected, raising the Batson principle, the trial judge questioned whether Batson applied to the case or the circumstances, but asked the attorney whether he had any particular reason for seeking to exclude the juror. The attorney did not specify a reason, and was allowed to use a peremptory (unexplained) challenge to eliminate him from the jury. The 9th Circuit held that this was error. Since sexual orientation discrimination merits heightened scrutiny, the Batson rule applies and because it was clear that the juror was a gay man and, under the circumstances, Abbott’s counsel might entertain the view that gay men would be biased against his client, some valid justification was necessary to sustain the challenge to his jury service.

The California Supreme Court extended the Batson rule to gay jury challenges long ago for purposes of trials in the state courts, but this ruling by the 9th Circuit is the first to extend Batson to such challenges in federal courts. But the ruling is potentially much more consequential–first, because it applies broadly to all sexual orientation discrimination claims, not just juror challenges, and second, because of another case pending before the 9th Circuit and shortly to be argued, Sevcik v. Sandoval, a challenge to Nevada’s ban on same-sex marriage. In Sevcik, the district court, ruling before last year’s Windsor decision, rejected a challenge to the Nevada marriage ban, holding that the court was bound under the 1972 Supreme Court affirmance in Baker v. Nelson to hold that Sevcik had not presented a “substantial federal constitutional question” and that the state’s ban survived rational basis review. Windsor was decided after Sevcik’s appeal to the 9th Circuit was filed. Now the 9th Circuit has ruled that Windsor requires heightened scrutiny of sexual orientation claims. That surely forecasts a reversal in Sevcik, although it is not clear whether the 9th Circuit would remand the case to the trial court for reconsideration under the heightened scrutiny standard or whether the court of appeals would rule as a matter of law under that standard that the Nevada ban is unconstitutional. Either way, the 9th Circuit’s ruling should have immediate consequences for recently filed marriage equality lawsuits in Arizona, Idaho and Oregon, states which are also in the 9th Circuit, as those district courts will be bound to apply heightened scrutiny in deciding those cases.

Lambda Legal had an amicus brief in the case, co-authored by Shelbi D. Day, Tara L. Borelli, and Jon W. Davidson, working from the organization’s Western Regional Office in Los Angeles.