State Won’t Appeal Ban on Removing Gay Jurors

The state will not appeal a precedent-setting court ruling that prohibits lawyers from removing jurors because of sexual orientation.

Atty. Gen. Bill Lockyer agrees that “gays and lesbians cannot be discriminated against during jury selection,” spokesman Nathan Barankin said Monday.

The state previously took the opposite position in the court case, but Barankin said those arguments were formulated when Lockyer’s Republican predecessor, Dan Lungren, was attorney general. Lockyer, a Democrat, took office in January 1999.

The state’s 4th District Court of Appeal, in Santa Ana, issued the ruling last Monday. The court said it was the first in the nation to address the issue.

Previous rulings, based on the right to a jury chosen from a cross-section of the community, have barred lawyers from removing prospective jurors because of race, sex or national origin. The court said homosexuals, likewise, are a distinct group with a common perspective based on their status in society.

“It cannot seriously be argued in this era of ‘don’t ask, don’t tell’ that homosexuals do not have a common perspective,” said Justice William Bedsworth in the 3-0 ruling. “They share a history of persecution comparable to that blacks and women share.”

“That perspective deserves representation” in the jury pool,” said Bedsworth.

He also said lawyers may not ask jurors about their sexual orientation. But a gay rights lawyer said attorneys who want to remove gay jurors have been able to evade the ban by asking prospective jurors about their living partners.

The ruling requires a new hearing in an Orange County burglary case. Lawyers for defendant Cano Garcia claimed that the prosecutors removed two women from the jury at his burglary trial because they were lesbians.

Garcia was convicted and, with two previous convictions for serious felonies, was sentenced to 25 years to life under the three-strikes law. He is entitled to a new trial if the trial judge determines that either juror was removed because of her sexual orientation.