Equal Treatment

Lawsuit Tests Whether Jurors Can Be Dismissed Just For Being Gay

Can a lawyer dismiss a potential juror just because he’s gay? That’s the legal issue that a federal court will be grappling with. While the problem may seem a little lawyerly, the symbolism is not. At question is whether sexual orientation carries the same legal weight as race and gender

The case involves a dispute between two drug companies, Abbott and GlaxoSmithKline, over antitrust concerns. GSK claimed that Abbott jacked up the price of one of its HIV drugs, Norvir, in order to preserve the sales growth of a different HIV drug, Kaletra. During jury selection, GSK claims, Abbott dismissed one potential juror because he is gay and therefore would be unhappy with Abbott because of its pricing strategy. Abbott denies that claim. (The final verdict in the trial was mixed: GSK won a modest $3.4 million instead of the $571 million it was seeking.)

The 9th U.S. Circuit Court of Appeals will take up the dispute on Wednesday. At issue is whether a Supreme Court ruling barring juror dismissals based solely on race and gender extend to sexual orientation as well, particularly given the reasoning the Supreme Court used in striking down the Defense of Marriage Act. Abbott argues against including sexual orientation, while GSK argues for extending it.

“For a court to conclude it’s fine for someone to be excluded from jury service because someone didn’t want a gay person on the jury would send a bad message,” Jon Davidson, legal director of Lambda Legal, told the San Jose Mercury News. 

No matter how the case ends up, it’s likely to be appealed and may end up before the Supreme Court.

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  • hyhybt

    I could see not wanting jurors who were HIV+; not sure whether that would be a valid point for dismissing them, but in this specific case it could much more reasonably be considered relevant than whether they’re gay or not.

  • erasure25

    @hyhybt: Hmm, since HIV+ falls under the Americans with Disabilities Act, can a wheel-chaired juror be dismissed for being disabled?

  • LubbockGayMale

    This case is a real puzzler, I admit, but would the drug companies bounce potential jury members who had family members who died of cancer, etc, due to ineffective drug treatments? Plaintiffs and defendants usually have pre-emptory challenges where they don’t have to give their reasons for dismissing jurors, so why was an attorney so dumb as to let the juror know he was dismissed for orientation????

  • jmmartin

    This is going to be unpopular, and of course it is obviously anecdotal, but I tried a case not long ago to a jury that included a young gay man who was excused by agreement of both the state and defense. He was impossible. He fidgeted all through jury selection, wore an unchanging smirk, chatted when the lawyers and even the judge spoke, and went to sleep at one point. Oddly, the panel member sitting next to him was a Vietnamese engineer who managed to get himself selected as presiding juror and held out for acquittal when the five others wanted to convict. (It was a misdemeanor case.) As an atheist, I was amazed to see that in a prior jury panel the one juror in a felony pool of about 40 potential jurors who marked her juror information form “atheist” got herself nixed by both sides by saying, without hearing any evidence, that she already knew my client was guilty. That was odd, since the jury cut her loose — and she happened to be a lesbian, which came out during the trial. Just because someone belongs to this or that minority is no guarantee they will make a good juror.

  • hyhybt

    @erasure25: I’m not saying it either would or ought to be legal (and I don’t know whether the ADA applies to jury selection). I was just saying that it would be a far more logical connection.

  • AnitaMann

    I got out of jury duty by being gay. Told them I wouldn’t respect any word that the State had to say since it wouldn’t allow gay marriage. Judge dismissed me. Fine by me.

  • jeff4justice

    It’s important knowing the rights you have as a juror that the court does not have to tell you about: Fully Informed Jury Association http://fija.org/

  • hyhybt

    @AnitaMann: That wouldn’t be because you were gay, but because you declared you would disregard one side.

  • jwrappaport

    @jmmartin: In those cases, the jurors were problematic for reasons unrelated to their sexual orientation. The issue here is whether or not a juror may be excused solely on the basis of his/her sexual orientation.

    I doubt the 9th Circuit will let this fly, although I think that it will require it to consider gays and lesbians a suspect or quasi-suspect class. It may end up being a pretty big deal, as I don’t know that the 9th Circuit has done that yet.

    @erasure25: Interesting point. I don’t know that the disabled get heightened scrutiny, but if they do, I would bet you’d have a hard time challenging a wheelchair-bound or HIV+ juror simply because there’s no practical reason to excuse them: the former could easily be accommodated by most (if not all) courts, and the latter requires no accommodation at all. A blind juror, on the other hand, may be justifiably challenged if perhaps most of the evidence is visual, although there was a blind juror in Runaway Jury. Great flick.

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