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Gay and lesbian jurors are a cognizable group, appeals court rules.

Do gay and lesbian jurors deserve recognition as a group and protection against discrimination? That's the question an appeals court in California's fourth district mulled in January.

During voir dire in a burglary trial, the prosecution excused two openly gay women from the jury pool. The trial court let the dismissals stand despite defense counsel's challenge that the women had been removed in violation of the state's ban on discrimination against cognizable groups. A 1978 California Supreme Court ruling prohibits the exclusion of jurors based on race, ethnicity, gender, and "similar" group bias. U.S. Supreme Court rulings protect jurors from only racial and gender discrimination.

"Sexual preference is not a cognizable group," said Orange County Superior Court Judge Corey Cramin. "Lesbians or gay men vary in their social and psychological outlook on human events and I don't think fit into this projection."

On appeal, Justice William Bedsworth wrote for a unanimous panel that "gays and lesbians seem to meet the criteria for a cognizable group. We see no reason ... not to acknowledge that status and nothing in law or logic which would enable us to come to a different conclusion. That group cannot be discriminated against in jury selection. For such discrimination would send an intolerable message.... We will not send that message." (People v. Garcia, No. G022376, 2000 WL 116213 (Cal. Ct. App. Jan. 31, 2000).)

Bedsworth wrote that excluding lesbians and gay men would result in a jury that "failed to represent a cross section of the community and thereby violated [the defendant's] constitutional rights."

Gays and lesbians "certainly share the common perspective of having spent their lives in a sexual minority, either exposed to or fearful of persecution and discrimination," he wrote. "That perspective deserves representation in the jury venire, and people who share that perspective deserve to bear their share of the burdens and benefits of citizenship, including jury service."

The court acknowledged that people with a common perspective may not share the same opinions. "That is the whole reason exclusion based upon group bias is anathema," Bedsworth wrote. "It assumes all people with the same life experience will, given a set of facts, reach the same result. A common perspective does no such thing. It affects how life experiences are seen, not how they are evaluated."

The appeals court also cautioned that prospective jurors should not be asked about their sexual orientation.

The attorney general's office has said it will not appeal the ruling.

The case has been returned to the Orange County Superior Court, where a hearing will be held to determine whether the women were excused from the jury on account of sexual orientation. If the court determines that the prosecutor's peremptory challenges were not constitutionally valid, the case will be retried. Otherwise, the defendant's conviction will stand.

Jenny Pizer, managing attorney for the Los Angeles office of the Lambda Legal Defense Fund, a gay rights group, said, "This decision steps across a huge gulf of misunderstanding that in the past has caused a lot of judges to see gay and lesbian people as criminals who are psychologically unfit for most roles in society. This court, by contrast, makes a commonsense observation that gay people are everywhere in society and that we have valuable contributions to offer based specifically on our unique perspective as gay people."
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Author:Reichert, Jennifer L.
Publication:Trial
Geographic Code:1USA
Date:Apr 1, 2000
Words:554
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