California Appeals Court Changes Its Mind: If a Juror’s Sexual Orientation Was in Any Way Used to Strike Them, The Selection Process is Tainted

As with other groups targeted with discrimination, far too often discrimination against LGBT people has found its way into the courtroom. In a victory for sexual orientation fairness in California courts, the California 3rd District Court of Appeal changed its mind about using what is known as a “mixed-motive” analysis when a peremptory strike is used to eliminate a juror based on sexual orientation, in People v. Douglas.

In the new opinion the Court held on reconsideration that a mixed-motive analysis is not appropriate — if the potential juror’s sexual orientation was a factor in the prosecutor’s decision to strike them, the process is tainted.

In The People v. Brady Dee Douglas, the prosecutor in the case case used his peremptory challenges to strike two openly gay men from the jury panel. The defense correctly challenged the strikes. The prosecutor then admitted that one of the reasons for the strike was that he felt that openly gay men might be biased against the victim because he was “not out of the closet.” As we made clear in our amicus letter to the court, this amounts to an unsupported stereotype about a subclass of gay people. As such, the strike is prohibited under both the California Constitution and the U.S. Constitution.

Although the Court of Appeals vacated opinion originally agreed that such stereotyping was impermissible, the Court, held that the trial court here should use a “mixed-motive” approach to determine whether the strike was ultimately improper.

Lambda Legal, though it’s Fair Courts Project (where I served as Director for 6 years) filed a letter with the Court urging reconsideration of the original opinion. As Lambda Legal’s amicus letter explained to the Court:

This mixed-motive approach “means that if a prosecutor can justify the strike with other, permissible reasons, the strike will stand— regardless of whether it was also motivated by an unlawful reason (such as on the basis of race, gender, or sexual orientation). LGBT and HIV-affected communities.”

Lambda Legal’s amicus letter urged the Court to issue a revised opinion, to hold that the prosecutor’s use of peremptory strikes of the only two openly gay jurors in the venire— “strikes that the panel correctly concluded were improperly based on their sexual orientation — cannot be rectified on remand by accepting the prosecutor’s assertion that he would have made the same decision for other reasons.” And to hold that this use of the strikes violated the Constitutions of California and the United States. The letter explained the implications of such a holding by taking a closer look at the facts of this case

Take this case, for example. The Appellant, Brady Dee Douglas, is an openly gay man. As previously noted, at Douglas’s trial the prosecutor struck both openly gay men in the venire, giving both putatively non-discriminatory reasons (friendship with the public defender and demeanor, respectively) and a discriminatory one (i.e., that an openly gay man would ipso factol ikely be unfair to a prosecution witness who was in the closet) that would have resulted in striking any openly gay juror. The prosecutor relied on a stereotype that is particularly invidious: a biased (and unfounded) belief that openly gay jurors are hostile to closeted gay witnesses. The idea that openly gay jurors feel superior to closeted witnesses, or that they find their failure to publicize their sexual orientation so distasteful that it taints.”

The Court agreed.

“This case is about fairness and equality in our criminal justice system. When a party exercises a peremptory challenge against a prospective juror for an invidious reason, the fact that the party may also have had one or more legitimate reasons for challenging that juror does not eliminate the taint to the process.

The Court concluded:

“We reject the application in these circumstances of the so-called “mixed motive” or “dual motive” analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision. We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”

  • Great work by my friend and former Lambda Legal colleague, Ethan Rice, who served as the lead drafter on this letter. A big win for Fair Courts!



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Eric Lesh

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.