An appellate panel hears arguments in an assault case against a gay inmate in which a lesbian was dismissed during jury selection. Defense lawyers want the panel to consider constitutional issues.
Trial lawyers should be barred from dismissing potential jurors because of their sexual orientation, defense attorneys argued Thursday in a case that, if successful, could extend constitutional protection from discrimination to homosexuality along with race, creed and gender.
The arguments made to a panel of the U.S. 9th Circuit Court of Appeals in Pasadena arose from a prosecutor's decision last year to strike a lesbian from the jury weighing assault charges brought against a gay Nigerian inmate at the federal lockup in Los Angeles.
The Obama administration has called for "heightened scrutiny" of laws and practices that target gays, and the government has lately expressed its concern about the constitutionality of differing treatment of spouses in same-sex marriages.
In Nigerian-born Daniel Osazuwa's appeal of his assault conviction before three of the most liberal judges of the 9th Circuit, attorneys with the federal public defender's office argued that gays and lesbians should be added to the classes of citizens considered vulnerable to discrimination and accorded better protection of their rights.
Deputy Public Defender James H. Locklin asked the 9th Circuit panel to find that Osazuwa's trial judge erred in accepting a bogus reason for the prosecutor's dismissal of the lesbian during jury selection.
Osazuwa's defense during the trial was that he was just giving a guard a hug, a salutary gesture in his African homeland, and that the homophobic guard overreacted, lunging away and falling to the floor with Osazuwa on top of him.
Assistant U.S. Atty. Mark R. Yohalem told the panel that the prosecutor had legitimate reasons for removing the juror, identified only as J.T., because she told the court she had close Nigerian friends when the panel was asked if anyone had positive or negative attitudes toward that nationality.
Yohalem suggested the appeals panel should accept the decision by the trial judge that the juror was removed for legitimate reasons and avoid addressing the broader question of whether the Constitution's Equal Protection Clause extends to sexual orientation. Yohalem reminded the judges that lower courts are supposed to refrain from making rulings on constitutional questions that are the domain of the U.S. Supreme Court.
But Yohalem conceded that he was also mindful of the guidance provided earlier this year by U.S. Atty. Gen. Eric H. Holder Jr. for government lawyers to look askance at laws treating gays and lesbians differently from heterosexuals. Holder issued that notice after deciding against defending the 1996 Defense of Marriage Act, a law withholding federal benefits from same-sex couples.
For more than a quarter of a century, since the Supreme Court decided a case called Batson vs. Kentucky, it has been against the law for trial attorneys to dismiss potential jurors on the basis of their race — a tactic once common among prosecutors trying to keep those who might be sympathetic to a minority defendant off the jury.
Subsequent rulings on Batson challenges have added gender and religion to protected categories, but the sole effort to get the courts to add sexual orientation failed in a Midwestern case that reached the U.S. 8th Circuit Court of Appeals six years ago.
More recent Supreme Court rulings have overturned the laws on which the 8th Circuit ruling was anchored, giving gay rights advocates hope that the Osazuwa challenge could secure equal protection for sexual orientation, said Jon W. Davidson, legal director for the national Lambda Legal organization that fights court battles on behalf of gays and lesbians.
Davidson said he found the 9th Circuit panel "hard to read," and interpreted its focus on the potential merits of the lesbian juror's dismissal a possible indication that the panel might shy away from addressing the constitutional question.
The panel was headed by Judge Stephen Reinhardt, who was named to the court by President Carter. The two other members are Judges Kim McLane Wardlaw and Marsha S. Berzon, both appointees ofPresident Clinton. The judges gave no indication of when they might rule, and panel decisions usually follow oral arguments by at least a month.
The arguments made to a panel of the U.S. 9th Circuit Court of Appeals in Pasadena arose from a prosecutor's decision last year to strike a lesbian from the jury weighing assault charges brought against a gay Nigerian inmate at the federal lockup in Los Angeles.
The Obama administration has called for "heightened scrutiny" of laws and practices that target gays, and the government has lately expressed its concern about the constitutionality of differing treatment of spouses in same-sex marriages.
In Nigerian-born Daniel Osazuwa's appeal of his assault conviction before three of the most liberal judges of the 9th Circuit, attorneys with the federal public defender's office argued that gays and lesbians should be added to the classes of citizens considered vulnerable to discrimination and accorded better protection of their rights.
Deputy Public Defender James H. Locklin asked the 9th Circuit panel to find that Osazuwa's trial judge erred in accepting a bogus reason for the prosecutor's dismissal of the lesbian during jury selection.
Osazuwa's defense during the trial was that he was just giving a guard a hug, a salutary gesture in his African homeland, and that the homophobic guard overreacted, lunging away and falling to the floor with Osazuwa on top of him.
Assistant U.S. Atty. Mark R. Yohalem told the panel that the prosecutor had legitimate reasons for removing the juror, identified only as J.T., because she told the court she had close Nigerian friends when the panel was asked if anyone had positive or negative attitudes toward that nationality.
Yohalem suggested the appeals panel should accept the decision by the trial judge that the juror was removed for legitimate reasons and avoid addressing the broader question of whether the Constitution's Equal Protection Clause extends to sexual orientation. Yohalem reminded the judges that lower courts are supposed to refrain from making rulings on constitutional questions that are the domain of the U.S. Supreme Court.
But Yohalem conceded that he was also mindful of the guidance provided earlier this year by U.S. Atty. Gen. Eric H. Holder Jr. for government lawyers to look askance at laws treating gays and lesbians differently from heterosexuals. Holder issued that notice after deciding against defending the 1996 Defense of Marriage Act, a law withholding federal benefits from same-sex couples.
For more than a quarter of a century, since the Supreme Court decided a case called Batson vs. Kentucky, it has been against the law for trial attorneys to dismiss potential jurors on the basis of their race — a tactic once common among prosecutors trying to keep those who might be sympathetic to a minority defendant off the jury.
Subsequent rulings on Batson challenges have added gender and religion to protected categories, but the sole effort to get the courts to add sexual orientation failed in a Midwestern case that reached the U.S. 8th Circuit Court of Appeals six years ago.
More recent Supreme Court rulings have overturned the laws on which the 8th Circuit ruling was anchored, giving gay rights advocates hope that the Osazuwa challenge could secure equal protection for sexual orientation, said Jon W. Davidson, legal director for the national Lambda Legal organization that fights court battles on behalf of gays and lesbians.
Davidson said he found the 9th Circuit panel "hard to read," and interpreted its focus on the potential merits of the lesbian juror's dismissal a possible indication that the panel might shy away from addressing the constitutional question.
The panel was headed by Judge Stephen Reinhardt, who was named to the court by President Carter. The two other members are Judges Kim McLane Wardlaw and Marsha S. Berzon, both appointees ofPresident Clinton. The judges gave no indication of when they might rule, and panel decisions usually follow oral arguments by at least a month.
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