Court deciding if gay juror can be taken off case

Appeals court gives little indication over whether lawyers can boot prospective jurors

SAN FRANCISCO - An appeals court gave little indication over whether lawyers can boot prospective jurors from a case solely based on sexual orientation.

During an hour of arguments in San Francisco on Wednesday, a panel of three 9th U.S. Circuit Court of Appeal judges left unclear whether they would give gays the same status race and gender play in jury selection. Lawyers are allowed to remove prospective jurors without any legal reason, but are barred from removing potential jurors based on race and gender.

Now, the court must decide whether sexual orientation deserves the same protection.

The court is expected to rule at a later date.

The question of whether a juror was wrongfully removed arose out of an antitrust case between two pharmaceutical companies over an AIDS drug.

A multibillion dollar case between two giant pharmaceutical companies grappling over arcane antitrust issues has unexpectedly turned into a gay rights legal imbroglio that raises questions over whether lawyers can bounce potential jurors solely based on their sexual orientation.

The case before the 9th U.S. Circuit Court of Appeals in San Francisco on Wednesday centers on whether Abbott Laboratories broke antitrust laws when it increased the price of its popular and vital AIDS drug Norvir by 400 percent in 2007. But broader public attention likely will be given to the three-judge panel's look at whether Abbott wrongfully removed a juror in the case brought by competitor SmithKlineBeecham. The court is expected to take up the issue sometime after 10 a.m. local time Wednesday.

The cost increase angered many in the gay community. SmithKlineBeecham, meanwhile, claims it was meant to harm the launch of its new AIDS treatment, which requires the use of Norvir. And the company the liberty contends "Juror B" was removed simply because he was gay.

"It's a big deal," said Vik Amar, University of California, Davis professor. "The headlines from this case are not going to be about antitrust law - it will be about sexual orientation in the jury pool."

Before trials, lawyers for both sides are allowed to use several "preemptory challenges" each to remove someone from the jury pool without legal justification.

For its part, Abbott argued, it bounced "Juror B" for three reasons, none having anything to do with his sexual orientation. Lawyers said they felt the juror's impartiality was compromised because he was the only potential juror who had heard of the SmithKline treatment in question, that he was also the only prospective juror who had lost a friend to AIDS and that he worked for courts.

The U.S. Supreme Court in 1986 prohibited lawyers from using their challenges to bounce a potential juror from a case because of race.

Eight years later, the high court added gender to the prohibition of potential jurors lawyers can remove from a trial without a legal reason.

But the high court has never ruled on sexual orientation. The California Supreme Court has barred the removal of gays from jury pools without justification since 2000, but its rulings aren't binding on federal courts.

In July, the three appeals court judges asked the drug companies what effect the U.S. Supreme Court's striking down of the federal ban on same-sex marriage benefits had on the antitrust case. It's the latest high-profile gay-rights issue the court has heard. The 9th Circuit had earlier struck down California's ban on same-sex marriages and ordered the same-sex partner of a court employee to receive the same benefits as married colleagues.

Unsurprisingly, Abbott lawyers argued that the U.S. Supreme Court's ruling striking down a portion of the Defense of Marriage Act had no effect on its legal fight with SmithKline.

Abbott argues that the high court's DOMA ruling doesn't mean anything in the antitrust case because it didn't put gays in the same class as minorities and women who need special protection during jury selection. The company's lawyers urged the judges to stay focused on the antitrust laws and procedural issues at the center of the appeal.

SmithKline is joined by gay rights activists Lambda Legal and other public interest groups who filed their own legal argument urging the court to protect gays from getting bounced from juries for no reason.

"The discrimination at issue here is particularly harmful, because it reinforces historical invidious discrimination within the court system and undermines the integrity of the judicial system," Lambda wrote the court.

comments powered by Disqus

Photo Galleries

  • On this day: October 26
    Tilla/Wikimedia Commons

    On this day: October 26

    The Erie Canal opens, the Pony Express closes, Wyatt Earp shoots it out in Tombstone, and the Patriot Act is signed into law, all on this day.

    Read More »
  • States with most and least powerful voters
    iStock / bns124

    States with most and least powerful voters

    With the presidential election rapidly approaching, WalletHub has released its list of the states with the most and least powerful voters. Click through to see where your state ranks.

    Read More »
  • Changes since last Cubs' World Series
    Jonathan Daniel/Getty Images

    Changes since last Cubs' World Series

    The Chicago Cubs are back in the World Series for the first time since 1945. See how times have changed over the past 71 years.

    Read More »
  • The many looks of Katy Perry
    Jason Merritt/Getty Images

    The many looks of Katy Perry

    Pop singer Katy Perry has made a big impact on the music scene in the few years she has been around. In celebration of her 32nd birthday on Tuesday, join us for a look at her career so far.

    Read More »
  • On this day: October 25
    Ezra Shaw/Getty Images

    On this day: October 25

    Pablo Picasso is born, the first domestic microwave oven goes on sale, Led Zeppelin debuts in concert, the U.S. invades Grenada, and Bill Buckner blows it for the Red Sox, all on this day.

    Read More »