Showing posts with label Gay Jurors. Show all posts
Showing posts with label Gay Jurors. Show all posts

January 22, 2014

Gay Juror Improperly Dismissed Because Being Gay Triggers New Trial

                                                

A gay man was improperly excluded from jury service because of his sexual orientation, a federal appeals court has ruled, illustrating the widening influence of a key U.S. Supreme Court decision on gay rights.

The 9th U.S. Circuit Court of Appeals in San Francisco on Tuesday ordered a new trial for GlaxoSmithKline Plc against Abbott Laboratories because Abbott excluded the potential juror.

The case involved Abbott's pricing of HIV medications, a controversial issue in the gay community. Glaxo accused Abbott of improperly hiking the price of one drug, Norvir, to help it preserve sales growth of one of its other HIV blockbusters, Kaletra.

The jury returned a mixed verdict in 2011, and Glaxo was awarded far less money than it had originally sought. However, Glaxo appealed the lower court's decision to allow Abbott to exclude the juror, and the 9th U.S. Circuit Court of Appeals ruled that the constitution prohibits jury strikes because of sexual orientation.

"Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals," 9th Circuit Judge Stephen Reinhardt wrote for a unanimous three-judge panel.

Glaxo spokeswoman Mary Anne Rhyne said the company is pleased with the ruling. Abbott spokesman Scott Stoffel said Abbott passed its HIV portfolio to a new company, AbbVie Inc, last year. An AbbVie representative could not immediately be reached for comment.

The 9th Circuit on Tuesday cited United States v. Windsor, the U.S. Supreme Court decision last year that struck down part of the federal Defense of Marriage Act (DOMA). In that case, Justice Anthony Kennedy wrote that the law defining marriage as between one man and one woman violated the U.S. Constitution's guarantee of equal protection.

However, Kennedy's ruling was ambiguous on just how far gay rights protections should extend, Northwestern University law professor Andrew Koppelman said. Since the ruling was issued, judges around the country have grappled with how to apply it in a variety of gay rights cases, including rulings that permitted same-sex marriage in Oklahoma and Utah. Those cases are currently under appeal.

"The big difference between now and Windsor is a shift in the culture," Koppelman said. "Discrimination that made intuitive sense to people before doesn't make a whole lot of sense anymore."

Norvir plays a key role in AIDS-fighting cocktails because it can boost the effectiveness of other drugs. Glaxo accused Abbott of raising Norvir's price by 400 percent in 2003, as part of an effort to harm competitors whose drugs were dependent on being used in combination with Norvir.

During jury selection in an Oakland, California, federal court, a potential juror discussed his partner by using the masculine pronoun "he" several times. The juror also said he did not know whether any of his friends were taking the medications at issue in the case.

Abbott's attorney sought to exclude the juror, and Glaxo objected, saying that Abbott was attempting to use a peremptory challenge in a discriminatory way. However, U.S. District Judge Claudia Wilken allowed Abbott to exclude the juror.

Glaxo had sought $571 million, but after a four-week trial the jury awarded Glaxo $3.5 million.

Given the legal reasoning in Windsor, the 9th Circuit held that gays and lesbians deserve the same constitutional protections during jury selection as those enjoyed by African-Americans and women.

Juror strikes based on sexual orientation "deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve," Reinhardt wrote.

The case in the 9th Circuit is Smithkline Beecham Corp dba GlaxoSmithKline vs. Abbott Laboratories, 11-17357.

Reuters

September 26, 2013

Court of Appeals Expressed Concern Over Dismissed GayJuror


Rae Wilson
QUEENSLAND'S highest court has expressed concerns about a juror's dismissal after beginning deliberations which convicted a man for his role in a fatal stabbing.
Ipswich man Anthony Scott Roy Warwick was convicted in April for fatally stabbing Graham Livingstone in November, 2011, after he became convinced he was having an affair with his gay lover.
He escaped a murder conviction, but the jury found him guilty of malicious intent to cause grievous bodily harm.
The jury could not reach a verdict on the role his boyfriend Allen Lee Divo played in the incident.
Justice Ros Atkinson sentenced Warwick to seven years and eight months jail declaring the incident a serious violent offence which means he must serve 80% of the sentence.
However, yesterday Supreme Court of Appeal president Justice Margaret McMurdo expressed concerns surrounding the jury member's dismissal after deliberations began.
"The issue surrounding the discharging of a juror due to the time pressures of that individual is concerning," she said."
"There were certainly some unusual events surrounding the discharging of that juror.
"It is something the court is very concerned about."
Warwick, who represented himself, told the court Legal Aid Queensland had knocked him back for his appeal.
"I have tried to get some legal advice which I am in the process of doing," he said."But, I have been kicked around by Legal Aid."
Justice McMurdo told Warwick he had been refused Legal Aid because he did not submit the necessary forms in the correct timeframe.
She adjourned the matter for a future date and recommended Legal Aid reconsider its decision based on the concerns raised in the court.

September 19, 2013

Because A Pharma Case Over AIDS Meds Judges Ponder About Gay Jurors

                                                             
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The appeals court in San Francisco gave little indication Wednesday whether a potential juror can be booted from a trial solely because of sexual orientation.
The 9th U.S. Circuit Court of Appeals listened to an hour of legal arguments on the issue from lawyers representing two rival drug companies embroiled in an antitrust dispute.
Ostensibly, the case is a SmithKlineBeecham appeal of a 2011 jury verdict mostly in favor of Abbott Laboratories over whether Abbott broke antitrust laws when it raised the price of a popular AIDS drug by 400 percent.
But what the three judges of the appellate panel were most interested in was the question of whether a potential juror can be removed from a case because of sexual orientation. At the end of the hour of arguments, it was unclear which way the judges were leaning.
The issue started at the beginning of the 2011 trial between the two companies when an Abbott Laboratories lawyer booted a juror who identified himself as gay from serving on the trial. SmithKline argued the juror's removal was done because of the widespread negative publicity that Abbott's 2007 price hike received in the gay community. Abbott denied the allegation and said it had several reasons to remove the potential juror, which included a friend dying of AIDS.
Much of Wednesday's proceeding consisted of highly technical legal arguments over the role in the jury debate of the U.S. Supreme Court's decision to strike down portions of a federal law barring benefits for same-sex couples.
The three judges, a few of the most politically liberal on the court, seemed unsure. On one hand, the U.S. Supreme Court struck down portions of the Defense of Marriage Act as "demeaning" to gays, suggesting the justices meant to give heightened legal protection to gays. On the other hand, Judge Marsha Berzon asked how lawyers and judges vetting prospective jurors could know of their sexual orientation without invading their privacy.
"What is the practicality of all of this?" asked Berzon. "This only applies when someone self-identifies."
Berzon was appointed by President Bill Clinton. She was joined on the panel by Mary Schroeder and Stephen Reinhardt, two appointees of President Jimmy Carter. Reinhardt wrote the 9th Circuit opinion striking down California's marriage ban.
The case arises from SmithKline's antitrust lawsuit filed in 2007 when Abbott hiked the price of Norvir, which SmithKline also uses in its new treatment.
A jury in 2011 ruled mostly in Abbott's favor, saying the company didn't hike the price out of malice. SmithKline appealed. Among its many detailed arguments for a new trial is the fact that an Abbott lawyer had the gay juror removed from the jury pool, allegedly because of his sexual orientation.
The court is expected to rule at a later date.
"It's a big deal," said Vik Amar, University of California, Davis professor. "The headlines from this case are not going to be about antitrust law — it will be about sexual orientation in the jury pool."
Before trials, lawyers for both sides are allowed to use several "preemptory challenges" to remove someone from the jury pool without legal justification.
Abbott argued it bounced "Juror B" for three reasons, none having anything to do with his sexual orientation. Lawyers said they felt the juror's impartiality was compromised because he was the only potential juror who had heard of the SmithKline treatment in question, that he was also the only prospective juror who had lost a friend to AIDS, and that he worked for courts.
The U.S. Supreme Court in 1986 prohibited lawyers from using their challenges to remove a potential juror from a case because of race. Eight years later, the high court added gender to the prohibition of potential jurors lawyers can reject without a legal reason.
But the high court has never ruled on sexual orientation. The California Supreme Court has barred the removal of gays from jury pools without justification since 2000, but its rulings aren't binding on federal courts.
Gay rights organization Lambda Legal and 11 other groups filed a "friend of the court" brief arguing sexual orientation should receive the same treatment as race and gender during jury selection.

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