Judge Throws Out Jury Panel After Prosecutors Exclude Queers
by MARK GABRISH CONLAN
Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine. All rights reserved.
Supporters of the San Diego Alliance for Marriage Equality rallied in front of the San Diego County Courthouse April 30, which was supposed to be the first day of the trial of the Equality Nine. (Photos: Charles Nelson.)
The panel at the April 27 “Evening with the Equality Nine.” L to R: Cecile Veillard, Todd Moore, Eric Isaacson, Jersey Deutsch.
A funny thing happened to the six remaining defendants in the Equality Nine case — members of the San Diego Alliance for Marriage Equality (S.A.M.E.) who were arrested while demonstrating for marriage equality at the San Diego County Clerk’s office August 19, 2010 — on their way to a trial that was supposed to begin April 30. The judge in the case, Joan Weber, discovered that prosecutors had systematically excluded Queers from the jury pool in the case. On May 1, she ruled that they had violated California law by doing so, threw out the entire jury pool and decided that the case would have to start over.
Rescheduling a trial — especially one involving seven attorneys, a prosecutor and one defense lawyer for each of the six defendants — is a lot harder than just hitting the restart button. By the time Judge Weber had coordinated her own schedule with those of the prosecutor and defense attorneys, the earliest date she could set for Equality Nine Trial 2.0 was September 18 — over two years after the demonstration that sparked the arrests.
The case had begun on April 25 with the first phase of jury selection, in which 85 prospective jurors were summoned to the courtroom. Each side is allowed to challenge jurors for cause — i.e., to demonstrate that they could be biased towards one side or the other. They can do that as many times as they want as long as the judge agrees.
“There’s this really bizarre scene, where we’re sitting at a table and these 85 jurors enter into the room,” said Chuck Stemke, one of the Equality Nine, at an April 27 “Evening with the Equality Nine” event held at Pleasures & Treasures adult bookstore in Hillcrest. “Amazingly, about halfway through, one of the people who came in was Veronica Kim-Holgren, a major supporter of the Equality Nine. She’s been on all of our picket lines. She was one of the jurors. The judge asked her if she was a supporter of ours. She said, ‘Yes, I’m a member of S.A.M.E.’ It became clear that this person had to be dismissed, but it was amazing to me that you can’t even find 85 people in this city without coming up with a supporter of ours.”
The second phase of jury selection, called “peremptory challenges,” was scheduled to begin April 30. In this phase, each side has a limited number of people they can strike from the jury pool without having to give a reason or persuade the judge to dismiss them for cause. It was at this phase, according to media reports, that defense attorneys caught the prosecution excluding at least two Gay male jurors.
Ordinarily, attorneys can use peremptory challenges for any reason they want. But in 1986 the U.S. Supreme Court, in a case called Batson v. Kentucky, ruled that attorneys can’t dismiss jurors solely because of their race. If an attorney on one side accuses the other of dismissing a juror because of his or her race, the attorney doing the dismissing has the right to argue that s/he is doing so for some other reason unrelated to race.
According to American Independent reporter Andy Birkey, one California prosecutor did just that in a 2000 case. The prospective juror was an African-American male-to-female Transgender person using the name Christopher Lewis. When the judge asked the prosecutor whether Lewis was being struck because she was Black or for some other reason, the prosecutor replied, “I believe that people who are either Transsexuals or Transvestites … traditionally are more liberal-minded thinking people … because … they have been either ridiculed before or are feeling in a position of being in a microscope all the time and are outcasts, which lends themselves to associating more with the defendant.”
Lewis’s removal from that jury was upheld by a federal court in 2005 on the ground that no federal law prevented attorneys from removing “cross-dressers or Transvestites” from juries. California law still doesn’t protect Transgender people from being discriminated against as prospective jurors, but it does protect Gays, Lesbians and Bisexuals. After a California appeals court ruled in 2000 that sexual orientation could not be used as a basis for excluding jurors, the California legislature passed a law banning the use of peremptory challenges to exclude jurors for being Gay, Lesbian or Bisexual.
In the Equality Nine case, after the prosecution had used peremptory challenges to strike two Gay male jurors, the defense made a motion to the judge based on Batson and the 2000 state law. Asked by the judge why he had struck the last Gay man from the jury pool, according to reporter Alan Peck in the May 7 Socialist Worker, “all he came up with was that the juror had previously been on two juries that both reached acquittal. The judge understandably considered that a hollow excuse, and it was not until May 1 that assistant city attorney Dan Rawlins started talking about the juror’s participation in a Gay pride or AIDS march years ago. The judge wouldn’t accept this newly fabricated reason, and appeared visibly angry.”
Judge Weber had also expressed surprise that the city attorney’s office is spending the city’s time and money to take the case to trial at all instead of dropping the charges to infractions and allowing the six remaining defendants to plead out on the same terms as the other three. “I’ve never had so many jurors express concerns about why a prosecutor’s office would move forward and spend time and money on a case of this nature,” said Judge Weber. Among the money the city attorney’s office in cash-strapped San Diego was planning to spend was airfare to fly two witnesses in from Florida — a heterosexual couple called to testify that their attempt to marry at the County Clerk’s office August 19 had been blocked by the S.A.M.E. protest.
San Diego City Attorney Jan Goldsmith, Peck wrote, “has been trying to lay the blame on the Equality Nine themselves, arguing that three of the nine had accepted plea deals and that the remaining six could save the city money by accepting their generous plea offer. But if the city really believes they’ve done something wrong and that they can win in court with an unbiased jury, why offer the plea? More importantly, why should innocent people make it easier for the government to prosecute them?”
Guilty Until Proven Innocent
Because that’s how the system works, said Equality Nine member Cecile Veillard at the “Evening with the Equality Nine” event April 27. “The law says you’re ‘innocent until proven guilty,’ but a lot of people perceive that if you’re in court, you must have done something.” What’s more, so many U.S. criminal cases are plea-bargained or dismissed without getting anywhere near a jury — at least 90 percent, according to some reports — that in 1966 New York University law professor Jerome Skolnick called his book about the American criminal justice system Justice Without Trial.
Critics like Skolnick have argued that the criminal justice system is essentially an assembly line that leads from the police — who, he argues, often fake evidence to ensure a high “closure” rate on cases — through the prosecutors and their power to “overcharge” a case, which means to charge the defendant with a much more serious crime than the evidence indicates they committed. The idea is to give prosecutors leverage in offering the defendant a chance to plead guilty to a “lesser” charge that will still earn them a substantial prison sentence.
The assembly-line nature of criminal justice and the way it’s set up to deal with the truly guilty gives the system a Kafka-esque air when it confronts the innocent. “Criminal justice makes it difficult to fight four your innocence when you’re convinced you’ve done nothing wrong,” Equality Nine member Zakiya Khabir said at the April 27 event.
The system also makes it difficult to assert the moral justification for civil disobedience even when the law you’re accused of violating is written to allow it. In the Equality Nine case, one of the two charges against them is interfering with the operation of a public agency, which violates California Penal Code section 602.1 (b). However, section 602.1 (c) states, “Section b shall not apply to any person on the premises who is engaging in activities protected by the California Constitution or the Constitution of the United States.”
The Equality Nine’s lawyers argued that they should be allowed to defend their clients by saying they were engaging in political protest and free speech, as protected by the U.S. and California constitutions. “It’s a legal argument that they shouldn’t be tried at all,” Todd Moore, Veillard’s attorney, explained at the April 27 event. “Just as their speech is important, it’s important that people be allowed to listen to it without criminalizing it.” But Judge Weber wouldn’t let the Equality Nine use that defense.
Direct-Action Chicken or Legal Egg?
The April 27 “Evening with the Equality Nine” featured four speakers: Veillard, Moore, attorney Eric Isaacson — who’s been representing a coalition of progressive churches and faith leaders in support of same-sex marriage equality since the original Marriage Cases at the California Supreme Court in 2004-2008, which Proposition 8 reversed — and Jersey Deutsch, director of programs of the Queer-equality group Canvass for a Cause (CFAC).
Much of the discussion at the event was about the relationship between civil disobedience and the legal system, and both speakers and audience members (including Equality Nine members Stemke, Khabir and Sean Bohac) debated the chicken-or-the-egg question of whether direct action pushes progress in the political and legal arenas, or political and legal victories open the doors for street action. But even the attorneys on the panel, Isaacson and Moore, agreed with the S.A.M.E. activists that direct action comes first and legal progress later.
“It’s the civil disobedience that comes first,” Moore said. “Then people start taking notice and asking, ‘What are we going to do about it?’”
Isaacson cited the African-American civil rights movement as an example of how direct action can spur political and legal process. “It was the big civil rights demonstrations and the TV footage of people in peaceful protests having dogs set on them that led to the Civil Rights Acts in the 1960’s,” he said.
“There are some people who think civil disobedience is courage, and some people who think it’s just bad behavior,” said Veillard. “Even once you have legislation, the direct action should not stop.” She cited the repeal of the military’s “don’t ask, don’t tell” policy preventing Queers serving openly in the military, but said there’s unfinished business because the ban on Transgender people was not lifted.
“Even when legislation is passed, it’s our job to monitor it,” Deutsch added. She noted that 29 states still allow employers to discriminate based on sexual orientation, and 38 allow discrimination based on gender identity. What’s more, employers often continue to discriminate even when the law says they can’t.
Deutsch cited a Transgender rights group in New York City that targeted the American Eagle company for discriminating against Trans people. The group used one of the classic legal strategies to document job discrimination — sending both unqualified non-Transgender people and qualified Transgender people to apply for openings, and seeing which ones got hired. Enough American Eagle outlets hired the unqualified non-Trans people that the group was able to get the company to stop discriminating simply by threatening to sue under New York’s law banning employment discrimination based on gender identity.
No Stays for Bigots
One of the palpable sources of frustration at the April 27 event was the difference between the way government bureaucracies handled the passage of Proposition 8 and the way they’ve responded to the two federal court decisions — one in the U.S. District Court of Judge Vaughn Walker, and the later ruling by a three-judge panel of the Ninth Circuit Court of Appeal upholding his ruling — declaring it unconstitutional.
Indeed, the August 19, 2010 protest itself originally targeted the decision of then-County Clerk David Butler not only to honor the “stay” — the delay of Walker’s decision imposed by the Ninth Circuit — but to bar all same-sex couples and their supporters, including at least two couples who had appointments to get married that day, from his office altogether. A press release Butler put out at the time said, “This office is prohibited from issuing marriage licenses and performing civil marriage ceremonies for same-sex couples until further action by the court.”
According to Isaacson, he was wrong. All the stay meant, he explained at the April 27 event, was that “the state was not compelled to follow Judge Walker’s order” declaring Proposition 8 unconstitutional. “It did not mean the state was prevented from following the law and marrying same-sex couples equally.”
“When Proposition 8 passed and it changed the California constitution, the marriages stopped the next day — no stay, no appeal,” said Stemke. “When our side came back and the bigots had to defend it, then there was a stay. The default position of the state was in favor of the bigots, even though none of the state’s officials have wanted to defend it in court. We’re waiting on the people who despise the LGBT [Queer] community to get together to defend it. Fundamental constitutional rights are being denied to this community as we speak.”