Court: Gay juror was taken off panel improperly

A federal appeals court ruled Tuesday 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 women and racial minorities.

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.

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 U.S. Supreme Court prohibits lawyers from removing jurors based only on their race and gender and requires them to provide a neutral reason why they are eliminating someone if an opposing lawyer questions the move. But the high court has never ruled on whether those protections apply to sexual orientation.

However, 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 booting people off juries just 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.

Neither Abboott Labs nor its lawyers returned calls Tuesday seeking comment on whether the company would appeal and ask the Supreme Court if the 9th Circuit Court properly interpreted its ruling.

D'Arcy Kemnitz, executive director of the National LGBT Bar Association, applauded Tuesday's decision, saying that jury participation is a critical element of full citizenship.

“Excluding jurors based on their sexual orientation and gender identity denies countless individuals a jury of their peers,” Kemnitz said.

The case arose from a lawsuit SmithKline Beecham filed in 2007 after Abbott hiked the price of Norvir, a drug that SmithKline used in its AIDS cocktail under a licensing agreement. Both during jury selection and in its argument before the 9th Circuit Court, SmithKline argued the unnamed juror was taken off the jury because of the widespread negative publicity that the price hike received in the gay community.

Abbott denied the allegation and said it had several reasons to remove the potential juror, which included his having a friend dying of AIDS.

9th U.S. Circuit Court of AppealsAbbott LaboratoriesBay Area NewsU.S. Supreme Court

Just Posted

People take part in early voting for the November 5 election at City Hall on Wednesday, Oct. 30, 2019. (Kevin N. Hume/S.F. Examiner)
Electionpalooza: SF School board recall will kick off a flurry of local races

‘It’s going to be a lot of elections and a lot of decisions for voters to make’

The fate of San Francisco nicotine giant Juul remains to be seen, as the U.S. Food and Drug Administration is reviewing whether to allow certain flavored vape products on the market. <ins>(Jeenah Moon/New York Times)</ins>
How the vape king of teen nicotine addiction rose and fell in San Francisco

‘Hey, Juul, don’t let the door hit you on the way out’

Cabernet sauvignon grapes sat in a container after being crushed at Smith-Madrone Winery in St. Helena. (Courtesy Smith-Madrone Winery)
San Francisco’s ‘Champagne problems’ — Wine industry suffers supply chain woes

‘Everywhere you turn, things that were easy are no longer easy’

Glasses behind the bar at LUNA in the Mission District on Friday, Oct. 15, 2021. Glassware is just one of the many things restaurants have had trouble keeping in stock as supply chain problems ripple outward. (Kevin N. Hume/The Examiner)
SF restaurants face product shortages and skyrocketing costs

‘The supply chain crisis has impacted us in almost every way imaginable’

A student carries a protection shield to her next class as part of her school’s COVID-19 safety measures. (Courtesy Allison Shelley/Eduimages)
Projected K-12 drops in enrollment pose immediate upheaval and decade-long challenge

State forecasts 11.4% fewer students by 2031 — LA and Bay Area to be hit hardest

Most Read