Here’s a prediction. Expect the 9th U.S. Circuit Court of Appeals panel to come down on the side of extending to gays and lesbians the same jury protection against exclusion based on their status as currently applies to women and minorities.
The three-judge panel heard unprecedented arguments Wednesday over whether homosexuals are entitled to constitutional protection against bias in jury selection. The panel includes two of the most liberal members of the court, Judges Stephen Reinhardt, Marsha Berzon and more moderate Mary Schroeder. Reinhardt wrote the appeals court decision striking down California’s marriage ban law.
And although this is going out on a limb, it seems likely that Berzon may write the opinion. She was the most aggressive and active questioner during the argument, suggesting she may write it.
The underlying dispute stems from an antitrust trial between pharmaceutical companies Abbott Laboratories and GlaxoSmithKline. Both want a new trial after a mixed jury verdict two years ago.
Abbott was accused of violating antitrust law by hiking the price of a popular AIDS drug, Norvir, by 400 percent.
On appeal, SmithKline accused Abbott of dumping a potential juror who identified himself as gay during jury selection.
Although given an opportunity to explain the reason for dismissing the juror, the Abbott lawyer chose not to express a reason.
Berzon wanted to know if lawyers or judges who vet prospective jurors would invade their privacy by asking questions about sexual orientation.
“What is the practicality of all of this, given the privacy interests?” Berzon asked.
It only applies when someone self-identifies, according to Lisa Blatt, attorney for SmithKline.
The trial judge asked the attorney to give a neutral reason and he declined. “There is no question this is a prima facia case,” Blatt said.
Abbott had an obvious reason for striking the juror because Abbott was accused of manipulating the price of an AIDS drug, which had caused outrage in the gay community, she said.
“If they gone farther questioning him, and said, ‘you appear gay man and have you heard about this uproar over drugs,’ they could have struck him,” Berzon said.
Blatt replied, “You can’t say ‘you appear to be gay,’ but a person can have feelings and opinions, and counsel is entitled to ask about that. And they did. That is why this is such a bad case for Abbott,” she said.
Abbott attorney, Daniel Levin, asked the panel to sidestep the gay juror issue and focus on issues surrounding the trial conclusion and damages findings. But he did say Abbott dismissed the juror for reasons other than sexual orientation, including potential lack of impartiality because he had heard of the SmithKline drug treatment, he worked in the courts (for the 9th Circuit) and had lost a friend to AIDS.
Berzon and Schroeder both sharply questioned Levin about whether Abbott should get a “second bite of the apple” trying to give a reason for removing the gay juror after failing to explain when he had the chance prior to trial.
The panel took the case under submission and will issue a ruling in coming weeks.
Case: SmithKline v. Abbott Labs, No. 11-17357