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.