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Constitutional Law

9th Circuit to decide if gay man can be excluded from jury in peremptory challenge

Posted Jul 31, 2013 6:05 AM CDT
By Debra Cassens Weiss

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A federal appeals court is considering whether a lawyer may use a peremptory challenge to block a potential juror because he is gay.

The issue arose in an antitrust trial involving pricing for an HIV medication made by Abbott Laboratories, the New York Times reports. A lawyer for Abbott Labs used a peremptory challenge in 2011 to remove a juror who had revealed he had a male partner. An opposing lawyer objected, saying the juror appeared to be gay and that the litigation involved an AIDS medication, and the incidence of the disease in the gay community is well-known.

The lawyer who struck the juror didn’t offer a neutral reason for the strike, instead relying on the judge’s statements that it’s unclear if Batson restrictions on peremptories apply to sexual orientation or in civil litigation (the judge was wrong on the second point, the Times says).“Number three,” the judge said, “there is no way for us to know who is gay and who isn’t here, unless someone happens to say something.”

The lawyer agreed that “I have no idea whether [the potential juror] is gay or not.”

Lambda Legal and 11 other public interest groups filed an amicus brief (PDF) with the 9th Circuit arguing that peremptories based on sexual orientation are unconstitutional.

Reuters covered the 2011 antitrust verdict for Abbott. The plaintiff, SmithKline Beecham Corp., had claimed Abbott unfairly priced the HIV drug Norvir, which boosts the effectiveness of other drugs. SmithKline recovered $3.4 million, however, on a separate breach of contract claim based on a licensing deal.

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