A San Diego judge on Tuesday ordered a new trial for a group of defendants after prosecutors struck LGBT jurors from the panel in an apparent violation of California law. The judge found that San Diego city attorneys dismissed at least one juror based on sexual orientation in a case against six marriage equality activists who are being tried on charges stemming from a 2010 protest against Proposition 8.
The incident is the latest example of attorneys exercising peremptory challenges against LGBT jurors -- an issue The American Independent reported on this week.
California -- unlike most states and the federal government -- bars attorneys from removing jurors on the basis of sexual orientation. LGBT activists believe the California law would apply to gender identity as well, even though it is not specifically mentioned.
Superior Court Judge Joan Weber reportedly said she found the prosecutors’ actions “shocking,” and dismissed the entire jury panel. She also said she was “heartbroken” over the situation, according to NBC San Diego.
The six defendants are part of the “Equality 9,” who were arrested on charges of refusing to disburse and interfering with the business a public agency when they protested a San Diego county clerk office after the passage of Prop 8. The protesters were demanding marriage licenses.
“There has been a fundamental violation of a constitutional right to a jury trial by my client’s peers,” attorney for the defense, Todd Moore, told the Union Tribune.
Hugh Moore, a community member who was observing the trial, said in a statement provided to TAI, “The only way for the city attorney to get a conviction in this case in San Diego would be to use an unfair jury and that [is] what they tried to do.”
Defendants in the case declined to be interviewed citing ongoing legal proceedings, but did forward a statement from the San Diego Alliance for Marriage Equality, the group that helped organize the protest in 2010.
“This incident marks a serious error on the part of the prosecution who has already
received copious criticism [for] its insistence that the City of San Diego pay for a criminal trial to take place,” the statement said. “This issue was not lost on the initial jury. Experienced members of the defense staff and the judge herself remarked about the unusually high number of potential jurors who said this was a waste of city resources.”
The charges were downgraded on Tuesday and a judge, instead of a jury, will issue a verdict in the case.
Currently, only California and Oregon have laws barring the removal of potential jurors because of their sexual orientation and gender identity. A similar law is pending in Minnesota. In the federal system, courts have thus far refused to view sexual orientation and gender identity as protected classes in terms of jury service. An attorney for the Department of Justice recently told a federal court that “the government’s ultimate position is that it takes no position” on whether case law that bars attorneys from dismissing jurors based on race and sex should be extended to cover the LGBT community.