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Jurors Shouldn't Be Excluded For Sexual Orientation, Lawyers Tell 9th Circuit

In a case involving a gay California inmate convicted of assault after hugging a security guard, federal public defenders told a 9th U.S. Circuit Court of Appeals panel yesterday that judges should consider sexual orientation in Batson challenges.

Prosecutors maintain that they excluded a woman from Daniel Osazuwa’s jury because she had close friends who, like the defendant, were from Nigeria, not because she was gay, the Los Angeles Times reports. Part of Osazuwa’s defense was that he hugged the guard as a greeting, as is common in his native country. According to the defense, the guard was homophobic and overreacted. Osazuwa is currently serving a bank fraud sentence.

In Batson v. Kentucky in 1986, the U.S. Supreme Court found that jurors cannot be excluded solely on race, and subsequent rulings added gender and religion to protected categories. A 2004 effort to add sexual orientation failed in the 8th U.S. Circuit Court of Appeals case U.S. v. Blaylock (PDF).

In the Osazuwa appeal, federal prosecutors acknowledged guidance provided earlier this year by U.S. Attorney General Eric H. Holder Jr., telling government lawyers to look askance at laws treating gays and lesbians differently from heterosexuals. Prosecutors also asked the court to respect the trial judge’s decision, and refrain from deciding if the Constitution’s Equal Protection Clause extends to sexual orientation.

“Writing on a clean slate, the question whether to extend Batson to sexual orientation would be complicated and worthy of close analysis; but the slate is not clean,” the government wrote in its answering brief (PDF).