9th Circuit Court of Appeals Hears Challenges to Gay Juror Dismissals

A gay prison inmate, Daniel Osazuwa, was in jail for failing to pay restitution on a bank fraud conviction. Shortly before his 90 day sentence was to end, Osazuwa assaulted a jail guard. The inmate claims that he only wanted to hug the guard, but that the guard was homophobic, causing him to overreact. The inmate then claimed that the guard’s overreaction cause both of them to fall.

The guard has an entirely different recounting of the incident, describing a prisoner who was wearing unapproved clothing and was uncooperative. The guard described a violent bear hug along with far less friendly behavior than the defendant claimed. The two are the only direct witnesses to the event, according to the Findlaw report on the case.

As Daniel Osazuwa’s assault trial began, one of the potential jurors who is identified only as “J.T.” identified herself as a lesbian who had Nigerian friends. Mr Osazuwa is a Nigerian immigrant. The prosecutors later used one of their peremptory challenges to exclude her from the jury. The prosecution insists that the exclusion was based on her friendships with Nigerians, not because she is gay.

A small number of peremptory challenges are allowed and no reason needs to be given for the rejection. The only other way to reject a potential juror is for cause, where friendship with a defendant or favoring a class that the defendant belongs to can be seen as a conflict.

In this case it was allegedly J.T.’s friendship with Nigerian immigrants that caused her to be excluded, not her status as a gay or lesbian individual. Osazuwa is appealing his conviction based on the exclusion of gays from his jury, insisting that it is a matter of discrimination against gays.

Time US reports that peremptory challenges have been abused in cases where all of the black jurors in the pool have been excluded. This has led to dicey cases where black defendants were convicted by all white juries.

The origins of protection against discrimination in jury selection lie in the Supreme court’s “Baston Rule”, which was based on the case of Kentucky v. Baston. In that case, a black defendant’s conviction was reversed after it had been shown that all of the Black jurors had been  excluded in a deliberate attempt to have an all White jury who would be far more likely to convict a Black man.  

The Supreme Court later added other classes of discrimination, including gender and ethnicity, but does not support ideas of discrimination against just any group, such as fishermen or lawyers. Gays and lesbians have not been specifically added to the protected groups, and this is why the Osazuwa case has landmark potential in terms of gay rights.

The 9th Circuit Court of Appeals is based in San Francisco, and has decided to hear arguments for and against adding gays and lesbians to the protected groups in jury selection. The favorable argument is that, since gay people face much of the discrimination that other recognized groups face, then they should be specifically named and added under the equal protection clause of the constitution.

This is a landmark gay rights case because, if a precedent is set to protect equal rights for gays in jury selection, then gays can use the precedent to demand equal protection in other areas, including marriage laws and employee benefits.