Conviction overturned because prosecutors dismissed gay jurors

SACRAMENTO -- The 3rd District Court of Appeal has ordered a new trial for a gay assault defendant because prosecutors dismissed the only two gay jurors in the pool.

The panel rejected a legal standard offered by the California Department of Justice in favor of one submitted by the defense and laid out in an amicus brief filed by a pair of pro bono attorneys on behalf of a trio of LGBT groups: Equality California, Lambda Legal and the National Center for Lesbian Rights. People v. Douglas, 2018 DJDAR 4088 (May 7, 2018).

"This is one instance where you can really see an amicus make a real difference," said Sonali D. Maitra, who wrote the amicus brief along with Raghav Krishnapriyan, her colleague at Durie Tangri LLP.

A divided appellate court rejected the notion Thursday that prosecutors could use a "mixed motive" or "dual motive" analysis in dismissing the jurors. It ordered a new trial on the grounds that "jury selection ... should be free from any bias."

"This case is about fairness and equality in our criminal justice system," Justice Elena J. Duarte wrote for the majority. "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 added that while other courts have taken on the legal standard questions addressed in this case, "neither the United States Supreme Court nor our Supreme Court has done so."

"This is the first time a California court has squarely addressed this issue," Krishnapriyan said. "I think it really applies to all groups who have been historically disfavored by the judicial system."

Acting Presiding Justice Cole Blease concurred. Justice Harry E. Hull Jr. filed a lengthy dissent, arguing the mixed-motive standard put forward by the state Department of Justice was sufficient.

The defendant in the case was convicted of assault with a firearm and several other crimes. He and another man allegedly engaged in a high-speed chase and shot at the victim, who reportedly owed money to the defendant's now-former boyfriend, a male prostitute.

The trial court rejected a Batson/Wheeler defense motion that argued the lead prosecutor showed bias in dismissing the only two openly gay jurors.

The majority opinion agreed there were legitimate reasons to dismiss both jurors, including questionnaire answers and a friendship between one juror and a local deputy public defender.

However, it found a prosecutor's statement that the openly gay jurors would likely be biased against the closeted gay crime victim was problematic. The ruling noted that neither juror had actually expressed that bias, and stated the rationale could be used against any openly gay juror.

The majority also considered a weaker "substantial motivating factor" standard suggested in an amicus brief filed on behalf of the defendant by the Los Angeles County public defender's office.

Instead, the brief endorsed much of the case law cited by the Durie Tangri team in support of a "per se" standard. Their amicus brief argued the court must act "where an unlawful motivation has anything to do with striking a juror" and said California courts "have already adopted a per se approach" in juror preemption cases involving race and language.

The Durie Tangri brief said a "mixed-motive rule is unworkable in practice" and that it would mean "accepting the prosecutor's assertion that he would have made the same decisions for other reasons."

The Durie Tangri lawyers argued that allowing this approach would violate the California Constitution's promise of a bias-free jury and the U.S. Constitution's equal protection clause.

No official with the state attorney general's office could be reached for comment Friday. Kieran D. C. Manjarrez of Santa Rosa, who represented the defendant, could not be reached.