9th Circuit Court Deciding if Gay Juror Can Be Removed from Abbott Antitrust Case

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An oft-repeated joke in films and on television is that the best way to “get out” of jury duty is to make oneself an unattractive juror – mostly by saying crazy things or showing obvious bias. However, if part of jury selection for the anti-trust trial against Abbott Laboratories one may only needed to have been gay.

The important antitrust case has “turned into a gay rights legal imbroglio,” according to the Associated Press. SmithKlineBeecham, a competitor, claims that Abbot removed a juror “simply because he was gay.” Abbott however contends that they released him for reasons that did not pertain to his sexuality. The juror worked for the courts, and he was the only potential juror who had heard of SmithKlineBeecham’s treatment and lost a friend to AIDS.

The case is being heard by the 9th Circuit Court of Appeals and claims Abbott violated antitrust laws in raising the price of the drug Norvir. In 2004, then-State Attorney General Eliot Spitzer opened an inquiry into the company’s price-hike, but Abbott responded by exempting government-funded AIDS programs.

Since the US upreme Court ruled on Batson v. Kentucky in 1986, potential jurors were not allowed to be challenged solely based on their race. In 1994, they cited that ruling and extended the same protection to gender bias in J.E.B. v Alabama, a child support case in which all males were excluded from the jury. 

There is precedent already protecting juror challenges based on sexual orientation. The California Supreme Court ruled against removing homosexuals from jury pools without justification in 2000. In 2010, San Diego Courts dismissed an entire jury because it was determined that a juror was dismissed because of his sexual orientation in a case involving gay marriage. Yet, anything is possible since none of those rulings apply to Federal Court.