The Counsellor's Corner


Several months ago I wrote a column on the issue of who lawyers can and cannot exclude from juries during jury selection.  I mentioned the seminal case known as the Wheeler case which held that lawyers could not remove prospective jurors based on race, ethnic origin, gender, or a similar group bias.  The purpose of the Wheeler decision was to prevent lawyers from stacking the deck, or attempting to stack the deck, by removing classes of people.  For example, if I am representing a Chinese individual in a criminal matter, I might be predisposed to want people with last names that lead me to believe they are Chinese, to sit on the jury.  The prosecutor, since Wheeler, cannot disqualify jurors whose last names sound Chinese unless they can justify what they have done based on another reason.  If, for example, the prosecutor were to disqualify all five Chinese-sounding names that are on the jury, I would then make what is called a “Wheeler motion”, at which time the judge would hold a hearing and ask the prosecutor why these five individuals with similar-sounding last names have been excused by the prosecution. 

Just one week ago, the Court of Appeals decided that being lesbian or gay is now to be deemed a “cognizable class” and therefore can no longer be used as the basis for exclusion.

In other words, if you note several jurors on the prospective jury who appear to you or who verbally acknowledge being gay or lesbian, you cannot remove them from the jury because of that fact; you will have to find another reason if you wish to remove them.

It is believed at this time that this California decision is the first in the country that makes sexual orientation a cognizable class.  The case that sparked this decision came out of Santa Ana; it was a burglary case in which the judge permitted the prosecutor to dismiss two female jurors during the jury selection process who were described by the Appellate Court as being “openly gay.”  I’m not sure how that determination was made as I would have to hope that the women comported themselves appropriately in a court of law, but be that as it may, the Court of Appeals held that if lesbians and gay males are excluded from a jury, this denies an individual the right to a jury represented by a cross-section of the community.  This is often referred to as a due process right. 

During the trial, the attorney of the individual charged with the burglary noted that the prosecutor excused both of the openly lesbian women.   His lawyer then made a “Wheeler motion” which challenged the removal from the jury of the two women by the prosecutor.  The Superior Court judge handling the matter denied the motion, finding that sexual orientation is not a cognizable group, and this is where the Court of Appeals stepped in to disagree.

The Court of Appeals concluded that the homosexual perspective should be represented in a jury, and also that those who are gay and lesbian “deserve to bear their share of the burdens and benefits of citizenship, including jury service.”

So much for, don’t ask, don’t tell, when it comes to jury selection.  Unless this case is appealed and overturned, one can ask, one can tell, and one cannot remove the individual based on this newly pronounced class.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.