The 3^rd District Court of Appeals has ordered a new trial of gay assault defendant because the prosecutors dismissed the only two openly gay jurors in the pool. The court highlighted this case’s importance because of the relevance to the fairness and equality of our court system.

The alleged facts of the case are as follows: Brady Douglas’s former boyfriend, a male prostitute, told Douglas (the defendant) that Jeffrey B. (the victim) had shorted him money. Douglas and codefendant, Clifton Damarcus Sharpe, tracked down Jeffery and demanded payment. During a high-speed freeway chase, defendant allegedly pointed a gun at Jeffery and shot at the car several times.

At trial the jury found the defendant guilty of attempted second-degree robbery, assault with a semiautomatic firearm, shooting at an occupied vehicle exhibiting a firearm against a person in a vehicle, etc. On appeal, the defendant argued that the trial court erred in denying his Baston/Wheeler motion (a motion used to argue that the other party is dismissing jurors in a discriminatory manner) after the prosecutor peremptorily excused the only two openly gay prospective jurors.

During jury selection at trial, the prosecutor and defense attorneys asked the prospective jurors questions about their feelings or perceptions about homosexuality. No one on the venire responded that he or she would have a problem deciding the case based on the facts. Two veniremen, J. and L., were openly homosexual and lived with their partners. The prosecutor used peremptory challenges to excuse both J. and L.

The defendants made a Baston/Wheeler motion, arguing that the prosecutor systematically used peremptory challenges to excuse J. and L because of their sexuality. Although the trial court found that sexuality was a protected category, they denied the motion. The prosecutor said he challenged J. because of his close relationship with a public defender, and L. because of his “demeanor”, the prosecutor thought he was more attentive to defense counsel than the prosecution. Concerning the jurors sexuality, the prosecutor had the following to say:

“In a case in which the victim in the case is not in a relationship with a female but is not out of the closet and actually was untruthful with the police about the extent of his relationship with a male prostitute, I think that that particular [persons’] testimony may be viewed with bias [by] those who are willing to be openly gay and not  -- not lie about it and can be frank about it, and he would view that as a negative character trait, and an individual who attempts to maintain given whatever grave idea, sexuality he has, but is willing to lie about it.”

The prosecutor argued that there are a number of reasons, both about the juror’s sexuality and not about it that caused him to use his peremptory challenges. Defense counsel argued that, under this reasoning, anyone that is openly gay can be challenged.

The Court of Appeals held that when a party exercises a peremptory challenge against a prospective juror for a discriminatory purpose, the fact that the party may also have had one or more legitimate reasons for challenging the juror does not eliminate the taint to the process. The court rejected the application of a so-called “mixed motive” or “dual motive” analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision.

The court held that it is not appropriate to use the “mixed motive” test when considering the remedy for discrimination in jury selection because it should be free of any bias. Instead, the court adopts a ‘per se’ approach, where a prosecutor uses a peremptory challenge for both permissible and impermissible reasons, the ‘taint’ of impermissible reason requires reversal for a new trial.

Sources from: People v. Douglas, 22 Cal. App. 5th 1162 (Cal. Ct. App. 3d 2018).