Say you are involved in an antitrust suit representing a defendant drug manufacturer. The plaintiff is another drug manufacturer. The antitrust dispute is about a drug used to fight AIDS. After voir dire, and during jury selection, the lawyer for the defendant moves to strike juror 10 using a peremptory challenge. Plaintiff’s counsel objects and claims that juror 10 is likely a homosexual based upon how that prospective juror answered certain questions regarding marital status during voir dire. Plaintiff’s counsel claims that a Batson challenge is appropriate even though the motivation to strike a juror simply because of the juror’s sexual orientation has never been ruled out-of-bounds by the Supreme Court. No neutral explanation is given by defense counsel.
To make the hypothetical better, assume that defense counsel asserts that “my client simply doesn’t want gay people on the jury” and “my client’s desire is not founded upon anything having to do with how the drug is used” and “I don’t have to give any rational explanation in support of my client’s position.” The judge agrees with defense counsel, refuses to reverse the strike, and the matter is appealed (to the Ninth Circuit) after an adverse jury verdict. Who wins? Why?
Again, let’s change the facts but only slightly. The drug is a face cream with a powerful antioxidant that conditions the skin. The juror is terribly ugly. No other facts change. How do you rule, and why?
PS For a description of the real case, see ADAM LIPTAK, Court to Decide if Lawyers Can Block Gays From Juries, New York Times (July 29, 2013). Thanks to How Appealing (July 29, 2013).