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Removal of gay juror ruled bias

US court says challenge in case was improper

SAN FRANCISCO — 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 Supreme Court has previously promised to women and racial minorities.

A unanimous three-judge panel of the US Court of Appeals for the Ninth Circuit 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 Ninth 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 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 Ninth 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 Abbott Labs nor its lawyers returned calls Tuesday seeking comment on whether the company would appeal and ask the Supreme Court if the circuit court properly interpreted its ruling.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, applauded the 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.