Persuasion Matters

Will Batson Challenges Extend to Sexual Orientation?

Batson v. Kentucky.

You probably know it well.  The landmark 1986 Supreme Court decision that sought to forever-protect African American jurors from discrimination.  Batson stated that peremptory challenges could not exclude a juror on the basis of race, as doing so would violate the equal protection clause of the 14th Amendment. Over the years, the courts have broadened the protections of Batson to include Hispanics and Latinos (see Hernandez v. New York and Allen v. Hardy).  Even some lower courts have ruled that Batson also applies to white jurors (see Gilchrist v. Maryland).

Ten years ago, the Supreme Court extended the protections of Batson to include gender (see J.E.B. v. Alabama ex rel. T.B.).

And last month, the 9th U.S. Circuit Court of Appeals ruled that counsel cannot exclude jurors based solely on sexual orientation. This is the first federal court opinion to specifically address the equal protection clause for gays and lesbians in the jury box.

The underlying case was SmithKline Beecham v. Abbott Laboratories, a case involving a licensing agreement and the pricing of AIDS medications. During jury selection, one male venire member (“Juror B”) referred to “my partner” and “he” several times during questioning. He was the only juror on the panel who identified himself as gay. Counsel for Abbott Laboratories exercised a peremptory strike on that juror, and SmithKline Beecham’s counsel raised a Batson challenge… which they lost.

The 9th Circuit not only found that the lower trial applied the wrong legal standard to the Batson challenge, but also that Defense counsel failed to provide adequate nondiscriminatory reasons for the strike.

On appeal, Reinhardt  wrote:

Because GSK has established a prima facie case, Abbott offered no nondiscriminatory reason for its strike of Juror B at trial, and Abbott does not now offer in its brief on appeal any colorable neutral explanation for the strike, only one result is possible here. . . . The record persuasively demonstrates that Juror B was struck because of his sexual orientation.

The case was reversed and remanded.

In light of Batson, J.E.B, and SmithKline Beecham, what can counsel do to protect the record when exercising peremptory strikes (or asserting a challenge)?  Here are a few tips.

  • Ask questions that delve into juror opinions, experiences and attitudes. Don’t be afraid of open-ended questions.
  • Make sure juror comments supporting a strike are clearly memorialized in the record. Vague answers and nonverbal communication do not translate well in a transcript. Commit the juror to a feeling, attitude or position that would be obvious to anyone who read the transcript.
  • Take copious notes and keep a record of relevant juror comments. This is very difficult to do if you are the one conducting the Q&A. Assign note-taking tasks to reliable people on your trial team.
  • Be mindful when referencing race, gender or sexual orientation in your notes. While they may help you remember who’s who, an innocuous note could later be construed as discriminatory if a challenge ensues.
  • Articulate very specific and clear reasons for defending or challenging a strike. Having a gut feeling or relying on vague juror responses won’t do you much good.
  • Be sure the reasons you assert are relevant to the underlying issues of your case.
  • If the Court rules against you, make sure your position is clear on the record. 


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