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1 Jury of Our Peers: Who Comes to the Party and Who Gets to Stay? WSBA # credits March 11, :45-7: 10 Greg Wheeler will describe the jury summons process, available statistics, and the practical aspects of King County Superior Court's administration of the jury summons process. There will be an oppo1iunity for questions. 7:10-7:35 Thomas O'Toole will discuss the strategy of jury voir dire, addressing specific factual scenarios. Several pupilage members will provide a brief demonstration of voir dire. There will be an opportunity for questions. 7:35-8:00 Several pupilage members will address the ethical ramifications of various voir dire practices. The discussion will include recent case law and policy publications on peremptory challenges and bias in jury selection. Faculty/presenter names and affiliations: Greg Wheeler, Director of Jury Services King County Superior Court Thomas M. O'Toole, PhD, Sound Jury Consulting Thomas O Toole, Ph.D., has practiced across the nation for over ten years in nearly every litigation type. He has consulted on matters as small as low exposure medical malpractice and as large as bet-the company MDL class actions and billion dollar environmental claims. He received his Ph.D. in litigation psychology and communication at the University of Kansas, which houses one of the nation s only doctoral programs designed to offer formal training for those entering the field of jury consulting. Following graduate school, Tom joined industry pioneer Joyce Tsongas at her firm, Tsongas Litigation Consulting, where he worked for eight years, refining company practices and pushing them in innovative, new directions, before venturing off to create Sound Jury Consulting. Tom brings a focus on the practical execution of litigation strategies built on both time-tested principles of persuasion and current, cutting-edge research on human decision-making. He works with clients in every service area to help them understand how a trier-of-fact will perceive and react to key issues and witnesses in litigation and assists with crafting case theories and presentations that situate the client for success. Tom s wealth of experience managing shadow juries in courtrooms across the country has refined his focus on providing clients with efficient, effective, and practical recommendations for strategy implementation that outline clear steps forward. He believes it is vital to provide the client with a plan of execution for the specific litigation needs rather than rely on boilerplate suggestions or abstract theory. His clients frequently request his assistance with nontraditional services such as brief-writing, preparation for oral argument before state supreme courts, and strategy development for negotiations in conflict resolution.

2 Tom has been a guest speaker and CLE presenter across the country for the American Bar Association s Annual Conference, state and local bar associations, and in-house practice groups. He is a member of the American Society of Trial Consultants. In his spare time, Tom likes classic literature, Steve Martin movies, St. Louis Cardinal baseball, running, playing a variety of stringed instruments, and spending time with his wife and two boys. Cynthia Jones Jones Legal Group, LLC is headed by Cynthia B. Jones, a dedicated legal professional wellversed in appellate practice and litigation. Cynthia concentrates her practice on civil and criminal appeals and civil litigation, including constitutional and criminal cases in federal and state courts. Cynthia's appellate experience includes appeals in the Ninth Circuit Court of Appeals, the Supreme Court of Washington and the various Courts of Appeal in Washington. She was named as a Rising Star by Washington Law & Politics Magazine in 2010, 2011, 2012, and She started her legal career clerking for Washington Supreme Court Justice Charles W. Johnson. Education J.D., cum laude, Seattle University School of Law (2006) Faculty Scholar Award Nominee, 2006 CALI Award for Highest Grade in Course (Civil Procedure) UCLA National Moot Court Competition, 2005 Quarter-finalist Women's Law Caucus, President B.A., University of Washington (2001) Editorial Journalism Major; Political Science Major; Women's Studies Minor Dick Larsen Scholarship for Political Writers John & Harriet Reid Scholarship for Academic Excellence in Communication Groups and Associations American Bar Association, Member Appellate Judicial Division and Criminal Justice Section (2013-current) Criminal Justice Act Panel for the 9th Circuit, Appointee (2012-current) Federal Bar Association Membership Committee, Co-chair (2012-current) Seattle University Law Alumni Board, Board Member (2012-current) KCBA Appellate Practice Section, Executive Committee, Second Vice-Chair (2011-current) Washington Association of Criminal Defense Lawyers, Legislative Committee (2010- current) Inn of Court, Executive Board Member and Treasurer ( , 2013-current) Legal Voice, Board Member ( ) KCBA Young Lawyer Division, Elected Board of Trustees ( ) Matt Teagarden Law Clerk Ahlers & Cressman PLLC March 2012 August 2013 (1 year 6 months) Seattle Davis Wright Tremaine LLP Paralegal - bankruptcy/litigation January 2005 August 2011 (6 years 8 months) Education

3 Seattle University School of Law (expected) Activities and Societies: Presidential Scholar, Seattle Journal for Social Justice University of Washington Bachelor of Arts (B.A.), English, Political Science Activities and Societies: Dean's List, Student Government Gretchen Obrist Gretchen Obrist joined Keller Rohrback in 2007 and is a part of the firm s Complex Litigation Group. She litigates ERISA fiduciary breach and excessive fee cases, as well as consumer protection and financial fraud claims. Ms. Obrist has played a key role in cases arising out of the collapse of the mortgage securities industry, e.g., In re Bear Stearns Cos. ERISA Litig., MDL No (S.D.N.Y), and the residential mortgage modification and foreclosure crisis, e.g., In re JPMorgan Chase Mortg. Modification Litig., No. 11-md-2290 (D. Mass.). Ms. Obrist was one of the primary Keller Rohrback attorneys involved in prosecuting a successful appeal in which the Eighth Circuit for the first time applied Iqbal to an ERISA case and reversed the dismissal of the lead plaintiff s case. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8th Cir. 2009). Ms. Obrist made significant contributions to the Washington Mutual and J.P.Morgan ERISA Pension Plan (cash balance conversion) litigations and has successfully litigated against Procter & Gamble and Merrill Lynch. She is currently counsel for the plaintiffs in Santomenno v. Transamerica Life Ins. Co., No (C.D. Cal.), where the court in February 2013 denied the Defendants motions to dismiss plaintiffs ERISA claims, rejecting Transamerica s challenges to its fiduciary status and the sufficiency of plaintiffs ERISA fiduciary breach and prohibited transaction claims. In 2011, Ms. Obrist and her colleagues won a TRO in a 1983 free speech case, Canfield v. Batiste, et al., No (W.D. Wash.). Prior to joining Keller Rohrback, Ms. Obrist served as a law clerk to the Honorable John C. Coughenour, U.S. District Judge for the Western District of Washington. Before obtaining her law degree, Ms. Obrist worked at a public defender s office, the Nebraska Domestic Violence Sexual Assault Coalition, and the Nebraska Appleseed Center for Law in the Public Interest. Sarah Dunne Sarah Dunne, legal director, joined the ACLU of Washington in 2006, where she directs its legal program. Dunne has more than a dozen years of public interest litigation and policy experience that includes several landmark cases. more» For the ACLU, Dunne has litigated among others, Witt v. Air Force. Prior to the ACLU, Dunne was in private practice in Seattle and before that served as a trial attorney for the Civil Rights Division of the U.S. Department of Justice. While at DOJ, Dunne litigated education cases involving race and sex discrimination that resulted in significant reform at the state and local level. She represented the United States during the remedial stage of United States v. Commonwealth of Virginia (VMI), and filed the first Title IX athletics case on behalf of the United States. Dunne worked on more than 20 desegregation cases in Alabama, Mississippi, Georgia and South Carolina and served as lead counsel for the Jefferson County Schools case Alabama s largest school district with over 35,000 students. Dunne grew up in South King County. She graduated from Stanford University with honors and the University of Chicago Law School. After law school, she clerked for the Honorable Richard A. Paez then with the U. S. District Court for the Central District of California.

4 In 2006, Dunne was honored by the Washington State Bar Association s Young Lawyers Divisions with its Professionalism Award for her substantial pro bono and volunteer work while in private practice. Dunne serves as Co-Chair of the American Bar Association s IRR Committee on the Rights of Women and as a volunteer attorney for the KCBA Federal Civil Rights Clinic. Dunne is also a board member of New Futures, a non-profit providing services to low-income students and families in South King County. Michele Suarez - Law Student at the University of Washington. Schroeter Goldmark & Bender, MacDonald Hoague & Bayless, Tribal Court Public Defense Clinic Dan Kalish labor and employment attorney at HKM Employment Law in Seattle.

5 The Essentials of Jury De-Selection By Thomas M. O Toole, Ph.D. Some attorneys will openly admit that they are scared to death of jury selection. No part of the American justice system is more shrouded in mystery, gimmicks, pop psychology, and other clever theories that give attorneys a sense of control over this intimidating process. The theories vary. Some argue that cases are won in jury selection. Some see it as a time to build rapport with potential jurors. Some see it as an opportunity to sell the case. When the process is broken down into its essential elements, the most important and effective jury selection strategy becomes apparent. Jury selection is about de-selection. In fact, the phrase jury selection is a misnomer. Attorneys do not pick their jurors as if it were the NBA draft. Yet, this remains the focus for many attorneys. Perhaps it s the psychological appeal of focusing on good jurors. However, the only thing attorneys have control over is who does not make it onto the jury. This control is exercised through the use of cause challenges and peremptory strikes. Consequently, the focus should always be on individuals an attorney does not want on the jury. Even if attorneys could pick jurors, research suggests it would not be the best way to approach the process. Negative attributes are more predictive of

6 behavior than positive attributes. It's why comment sections on news sites are always filled with naysayers. Negative attitudes and experiences seem to drive people to act more than positive attitudes and experiences. Furthermore, from a risk analysis perspective, the risks of focusing on who is good for the attorney s case and being wrong are so much greater than the risks of focusing on who is bad for the attorney s case and being wrong. In the situation of the former, an attorney is left with an adverse juror who may negatively influence the course of deliberations. The Importance of Attitudes and Experiences Attitudes and experiences are most predictive of human behavior and decision-making. These are what drive people to act. Demographics have strong allure from a pop culture perspective. The most popular questions posed by attorneys in preparation for jury selection are questions such as, Do I want men or women? The news media perpetuates this focus by regularly framing issues along demographic boundaries. Despite this common approach, demographics are rarely predictive of verdict preferences. There are certainly cases where demographics might play a prominent role in the actual issues in the case, such as sexual harassment cases or police profiling, but demographics are rarely useful jury selection strategy components. In reality, we tend to think demographics are important because we assume people of similar demographics have similar attitudes and experiences, which can be and is often wrong (believe it or not, not all men think alike!). So why not cut out the middle part (i.e. the indirect and less predictive element of demographics) and focus directly on attitudes and experiences? This significantly decreases the changes of getting it wrong and avoids legal hurdles of focusing on demographics such as Batson challenges. Crafting an Effective Jury Selection Strategy Attitudes and experiences are most predictive of human behavior and decision-making. The ideal way to begin the process of jury selection strategy is by developing an adverse juror profile. An adverse juror profile is a list of the case-related attitudes and experiences a potential juror may have that pose the risk of resulting in an adverse case leaning. For example, in a product liability case, some adverse attitudes a corporate defendant would likely have on their list

7 are: Believes large corporations put profits before safety. Believes large corporations routinely cut corners in order to save money. Believes too many products are rushed to market without adequate testing. Examples of adverse experiences for the same corporate defendant could include: Has ever had a negative experience with a product due to what they believed were unclear instructions in the user manual. Has ever been unexpectedly injured by a product. Has ever returned a product because they felt it was unsafe. While developing an adverse juror profile, attorneys should consider as many dimensions of the case as possible. For example, attorneys should also consider the legal dimension of the case, which might produce the following profile items for a corporate defendant in a product liability case: Believes, if a case makes it all the way to trial, it must have merit. Believes large corporations have an unfair advantage in the American legal system. Believes large damage awards are a drop in the bucket for large corporations. There are many dimensions to be explored. The more inclusive the adverse juror profile, the better. Implementation The Strategy During Voir Dire Attorneys questioning styles vary. Style plays a critical role in the process. In order to obtain the critical information necessary to make decisions about who to strike, juror must feel comfortable disclosing this information. The attorney s questioning style plays a pivotal role in managing juror comfort. One question-type that is particularly effective at increasing juror comfort is the forced choice question. For example, a generic adverse attitude for civil defendants is the belief that just because a case makes it all the way to trial, it must have considerable merit. The forced choice question for this attitude

8 might go something like this: I have some friends who would say, if a case makes it all the way to trial, there must be considerable merit to the claims. I have other friends who would say cases make it to trial for all sorts of different reasons that might have nothing to do with the merit. By a show of hands, how many of you are more like that first group of friends and think, if a case makes it all the way to trial, there must be considerable merit to the claims? There are a few benefits to this forced choice question style. First, the "friends" language is a way of saying to jurors there's no right or wrong answer. After all, the attorney asking the question has friends on both sides of the issue. It implies that it is perfectly reasonable to have an opinion on either side of the issue, which generates comfort among venire members. Second, since an attorney only wants to know about, and only asks about the adverse side of the opinion, the attorney is not doing the work for the other side and revealing their adverse jurors. In fact, it is for this reason that openended questions are not always desirable. A big part of jury selection is not doing the other side's work for them. It s the same reason why "selling themes or your case" in voir dire is a bad idea. In this situation, an attorney sells his or her case in voir dire and jurors who agree start vocally agreeing or nodding their head in the process. This, in turn, flags these adverse jurors for the other side. In other words, the attorneys on the other side now know who is a problem for them. Plus, selling the case in voir dire takes away from the impact of the opening statement since opening statement will now be the second time jurors have heard the attorney s theories and themes. Finally, jurors are simply not persuaded in voir dire. They lack the context among other things, so why waste valuable time trying to accomplish so little? The Challenge of Information Management In voir dire, the hardest part is information management. Fortunately, there are easy ways to manage the tremendous amounts of information in voir dire.

9 Here's one easy strategy for managing the process. Number the voir dire questions from 1-10, etc. Ask the voir dire questions in a way that gets jurors to raise their hands/juror numbers to indicate their adverse response (i.e. have you had this experience?). Request that they keep their hand/juror number raised until their juror number has been called. For each juror who raises their hand, place an X next to their name on the juror list provided by the court. This provides a quick visual way to assess the venire and figure out where the strikes are. When voir dire is over, the attorney can quickly look down and see which jurors have the most Xs marked next to their name. These individuals become priorities. A more sophisticated strategy involves using numbers rather than Xs. The idea of using numbers is based on the notion that some attitudes and experiences present higher risk than others. Consequently, using numbers provides attorneys with a way of weighting the questions. For example, venire members who hold generic high-risk legal attitudes might only get a 1 for that attitude. However, venire members with experiences with product defects may present higher risk. Consequently, these individuals might get a 3 for this question. At the conclusion of voir dire, the attorney can quickly add up each venire member s score and prioritize the strikes based on which jurors have the highest overall score. A final note is to look for leadership attributes in voir dire. A verdict is often a product of who exerts the most influence in deliberations. Research shows prior jury experience is a strong predictor of who will be foreperson. Attorneys should also look for soft power leadership. Soft power leaders are the venire members who seem very comfortable striking up conversations with the strangers around them during breaks and downtime. This is a sign that they will be very comfortable speaking up and taking control in deliberations. Other attributes are people who speak confidently and articulately when answering voir dire questions. These leadership attributes can help an attorney make tough calls with limited strikes. If the attorney has two high risk jurors and only one strike, he or she should get rid of the one with more leadership attributes. Tainting the Jury Some attorneys express concern about "tainting the jury" as a result of bringing up negative attitudes or experiences. The reality is that jurors are not persuaded during jury selection. In fact, most do not even remember it by the

10 time the trial is concluded. But the bottom line is that there are two places jurors can talk about negative attitudes/experiences: during jury selection when the attorney can do something about it or during deliberations when there s nothing that can be done. Finally, even if jurors were persuaded during voir dire, the juror who is going to change his/her mind as a result of a voir dire question is probably the type of individual who is going to change his/her mind a few more times over the course of trial. About the Author Thomas O Toole, Ph.D., is President and Consultant at Sound Jury Consulting. He has practiced across the nation for over ten years in nearly every litigation type. He has consulted on matters as small as low exposure medical malpractice and as large as bet-the company MDL class actions and billion dollar environmental claims. He received his Ph.D. in litigation psychology and communication at the University of Kansas. His dissertation focused on the how jurors attribute fault in medical malpractice litigation and he has published extensively on the subject. Learn more about Sound Jury Consulting at Contact the author at totoole@soundjuryconsulting.com

11 State v. Saintcalle, 178 Wn.2d 34 (2013) On August 1, 2013, the Washington Supreme Court issued a major decision regarding racially biased peremptory challenges of jurors. The Court s lengthy opinions can be found at The Saintcalle case arose in King County. The African-American defendant was convicted by a jury of first degree felony murder. During jury selection, the prosecutor used a peremptory challenge to remove the sole African-American venireperson in the jury pool. The challenge occurred after the prosecutor singled the juror out for extensive questioning about race (a fact the lead opinion noted may indicate a litigant is fishing for a race-neutral reason to support a peremptory challenge). As required by the leading United States Supreme Court case on this issue (Batson v. Kentucky, 476 U.S. 79 (1986)), the defendant objected that the prosecutor s challenge was racially motivated. The trial court found a prima facie case of discrimination had been shown. The prosecutor was then required to give an explanation for the challenge. The prosecutor s proffered reasons for the challenge were that the juror had been inattentive during the questioning process and she had a friend who was recently a murder victim. After hearing the explanation, the trial court ruled that the purposeful discrimination required by Batson had not been proven, even though the defense argued the prosecutor s reason was pretextual, since the juror s answer was more favorable to the prosecution than the defense. In Saintcalle, the prosecutor also used a peremptory challenge against the sole Latino juror in the jury pool. The trial court ruled that challenge did violate Batson since the reasons for the challenge proffered by the prosecutor were pretextual. Eight justices voted to uphold Saintcalle s conviction, but gave different reasons for reaching that conclusion. The lead opinion (authored by Justices Wiggins) concluded the trial judge s rejection of purposeful discrimination on the facts here was not clearly erroneous. However, the lead opinion also gave a lengthy explanation of why the Batson purposeful discrimination rule should be changed because it fails to account for implicit bias that is a serious problem in our legal system: Unconscious stereotyping upends the Batson framework. Batson is only equipped to root out "purposeful discrimination, which many trial courts probably understand to mean conscious discrimination. See Batson, 476 U.S. at 98. But discrimination in this day and age is frequently unconscious and less often consciously purposeful. That does not make it any less pernicious. Problematically, people are rarely aware of the actual reasons for their discrimination and will genuinely believe the race-neutral reason they create to mask it. [citation omitted.] Since Batson's third step hinges on credibility, this makes it very difficult to sustain a Batson challenge even in situations where race has in fact affected decision-making. The lead opinion explained the specific harms that result from implicit bias and discussed (with cites) the value of diverse juries. It included studies and statistics about the lack of

12 diverse juries nationally and in Washington. Statistics like this: In over 40 cases since Batson, Washington appellate courts have never reversed a conviction based on a trial court's erroneous denial of a Batson challenge. [citation omitted.] Saintcalle's brief cites 42 Washington Batson cases, all of which affirm a trial court's denial of a Batson challenge. Of those 42 cases, 28 involve the prosecution removing every prospective juror of the same race as the defendant-usually one or two black jurors. The lead opinion stated that it was not appropriate to change the Batson test in the Saintcalle case, but urged reform actions be considered in other contexts. Justices Madsen and Jim Johnson concurred in the affirmance of Saintcalle s conviction, stating the analysis should be limited to that case and its facts. They expressed skepticism about eliminating peremptory challenges. Justices Stephens, Fairhurst and Charles Johnson also concurred only in the result, but wrote separately to criticize the other justices for discussing anything but the result. This opinion also noted there might be a right to peremptory challenges which would mean they could not be eliminated. Justice Gonzales wrote a concurring opinion urging the abolition of peremptory challenges, as the only way to stop implicit bias in jury selection. He explained why bias and stereotypes are inherent in how peremptory challenges are used and provided a considerable amount of authority supporting the abolition of peremptory challenges. He noted that all the justices in Saintcalle agreed that racial bias in jury selection is still a problem. Justice Chambers was the lone dissenter, agreeing with the lead opinion about the inadequacies of the Batson rule and the need for reform, but concluding that Saintcalle s conviction should have been reversed as well. Justice Chambers s opinion supported adoption of a rule that striking the last remaining minority juror is presumptively discriminatory, based on the court s supervisory power rather than as an interpretation of Batson.

13 In SmithKline Beecham Corp. v. Abbott Laboratories, a unanimous three-judge panel ruled that it violates the Fourteenth Amendment s Equal Protection Clause for a lawyer to strike (that is, remove) individuals from a jury panel on account of their sexual orientation. The antitrust lawsuit involved HIV medications, and an attorney for one of the companies (Abbott) exercised a so-called peremptory strike (also known as a peremptory challenge ) effectively removing an individual from inclusion in the jury because the would-be juror was or appears to be, could be, homosexual. Peremptory challenges allow each side of a case to strike an equal number of would-be jurors for no supportable reason, solely because of a lawyer s hunches or intuitions about how a particular person might behave and decide as a juror. In holding that judicial acceptance of Abbott s peremptory challenge would violate the Constitution, the Ninth Circuit opinion, authored by Judge Reinhardt, made a number of analytic moves. First, the panel had to determine whether an earlier three-judge Ninth Circuit panel ruling from 2008, Witt v. Department of the Air Force which held that governmental actions discriminating on the basis of sexual orientation need only satisfy the lowest, most deferential, rational basis standard in order to be upheld under the Equal Protection Clause is still good law. If Witt s teaching that sexual orientation discrimination is not, as a general matter, subject to any kind of beefed-up constitutional scrutiny is still good law, it would be binding on the SmithKline panel judges, and the panel would have been required to come out the other way in SmithKline, since the Supreme Court has stated that peremptories may be used to remove individuals who are members of a class that is protected only by rational-basis review.the SmithKline panel instead decided that Witt s rational-basis-review approach is inconsistent with and thus no longer binding because of the Supreme Court s ruling in United States v. Windsor, the case decided last summer that struck down the Defense of Marriage Act (DOMA), the federal law denying recognition to same-

14 sex marriages. The Ninth Circuit found Witt to be inconsistent with Windsor because the Court in Windsor, whether the Justices admitted it or not, effectively applied heightened scrutiny (rather than rational-basis review) in holding that the DOMA violated equal protection guarantees. The Ninth Circuit s reading of Windsor was crucial to getting around Witt. In this vein, the Ninth Circuit had to (and did) decide not only that Windsor applied heightened scrutiny to DOMA, but also that Windsor is not limited by the facts or context of that case, and instead stands for the legal proposition that heightened scrutiny now applies to all government actions that discriminate on the basis of sexual orientation. Based on that conclusion, the Ninth Circuit went on to determine the result of heightened-scrutiny review of sexual orientation-based peremptory challenges under the Fourteenth Amendment. -

15 Case: /21/2014 ID: DktEntry: 83-1 Page: 1 of 40 FILED FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SMITHKLINE BEECHAM CORPORATION, DBA GlaxoSmithKline, v. Plaintiff - Appellee, No D.C. No. 4:07-cv CW OPINION ABBOTT LABORATORIES, Defendant - Appellant. SMITHKLINE BEECHAM CORPORATION, DBA GlaxoSmithKline, Plaintiff - Appellant, No D.C. No. 4:07-cv CW v. ABBOTT LABORATORIES, Defendant - Appellee. Appeal from the United States District Court for the Northern District of California Claudia Wilken, Chief District Judge, Presiding Argued and Submitted September 18,

16 Case: /21/2014 ID: DktEntry: 83-1 Page: 2 of 40 San Francisco, California Before: SCHROEDER, REINHARDT, and BERZON, Circuit Judges. Opinion by Judge REINHARDT, Circuit Judge: The central question in this appeal arises out of a lawsuit brought by SmithKline Beecham (GSK) against Abbott Laboratories (Abbott) that contains antitrust, contract, and unfair trade practice (UTPA) claims. The dispute relates to a licensing agreement and the pricing of HIV medications, the latter being a subject of considerable controversy in the gay community. GSK s claims center on the contention that Abbott violated the implied covenant of good faith and fair dealing, the antitrust laws, and North Carolina s Unfair Trade Practices Act by first licensing to GSK the authority to market an Abbott HIV drug in conjunction with one of its own and then increasing the price of the Abbott drug fourfold, so as to drive business to Abbott s own, combination drug. During jury selection, Abbott used its first peremptory strike against the only self-identified gay member of the venire. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge. This appeal s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide 2

17 Case: /21/2014 ID: DktEntry: 83-1 Page: 3 of 40 whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial. I. During jury selection, the district judge began by asking questions of the potential jurors based on their questionnaires, and then each party s counsel had an opportunity to ask additional questions. When the judge turned her attention to Juror B, a male, she inquired first about his employment, as she had done with each of the previous members of the venire. Juror B stated that he worked as a computer technician for the Ninth Circuit Court of Appeals in San Francisco. During the course of the judge s colloquy with Juror B, the juror revealed that his partner studied economics and investments. When the district judge followed up with additional questions, the prospective juror referred to his partner three times by using the masculine pronoun, he, and the judge subsequently referred to Juror B s partner as he in a follow-up question regarding his employment status. Responding to additional questions from the judge, Juror B stated that he took an Abbott or a GSK medication and that he had friends with HIV. When the time arrived for Abbott s counsel, Weinberger, to question Juror B, the questioning was 3

18 Case: /21/2014 ID: DktEntry: 83-1 Page: 4 of 40 brief and limited. Counsel s first question concerned Juror B s knowledge of the medications that were the focal point of the litigation: You indicated that you know some people who have been diagnosed with HIV.... Do you know anything about the medications that any of them are on? Juror B responded, Not really. Abbott s counsel then continued: Do you know whether any of them are taking any of the medications that we are going to be talking about here[,]... Norvir or Kaletra or Lexiva, any of those? Juror B responded that he did not know whether his friends took those medications, but that he had heard of Kaletra. He added that he didn t know much about the drug and that he had no personal experiences with it. In sum, Abbott s counsel asked Juror B five questions, all regarding his knowledge of the drugs at issue in the litigation. Abbott s counsel did not ask Juror B when he had taken either an Abbott or GSK medication, how long ago, which medication it was, or the purpose of the medication. He also failed to ask any questions as to whether Juror B could decide the case fairly and impartially. When the time came for peremptory challenges, Abbott exercised its first strike against Juror B. GSK s counsel, Saveri, immediately raised a Batson challenge, and the following discussion ensued: Mr. Saveri: Okay. So, you know, the first challenge, your honor, is a peremptory challenge of someone who is who I think is or appears to be, could be homosexual. 4

19 Case: /21/2014 ID: DktEntry: 83-1 Page: 5 of 40 That s use of the peremptory challenge in a discriminatory way. The problem here, of course, your honor, is the litigation involves AIDS medication. The incidents [sic] of AIDS in the homosexual community is well-known, particularly gay men. So with that challenge, Abbott wants to exclude from it looks like Abbott wants to exclude from the pool anybody who is gay. So I am concerned about that. I wanted to raise it. The Court: Well, I don t know that, number one, whether Batson applies in civil, and number two, whether Batson ever applies to sexual orientation. Number three, how we would know I mean, the evil of Batson is not that one person of a given group is excluded, but that everyone is. And there is no way for us to know who is gay and who isn t here, unless somebody happens to say something. There would be no real way to analyze it. And number four, one turns to the other side and asks for the basis for their challenge other than the category that they are in, and if you have one, it might be the better part of valor to tell us what it is. Mr. Weinberger: Well, he The Court: Or if you don t want to, you can stand on my first three reasons. Mr. Weinberger: I will stand on the first three, at this point, your honor. I don t think any of the challenge applies. I have no idea whether he is gay or not. Mr. Saveri: Your honor, in fact, he said on voir dire that he had a male partner. So Mr. Weinberger: This is my first challenge. It s not like we are sitting here after three challenges and you can make a case that we are excluding anybody. 5

20 Case: /21/2014 ID: DktEntry: 83-1 Page: 6 of 40 The district judge then stated that she would allow Abbott s strike and would reconsider her ruling if Abbott struck other gay men. B. At the conclusion of the four-week trial, the jury returned with a mixed verdict. It held for Abbott on the antitrust and UTPA claims, and for GSK on the contract claim. It awarded $3,486,240 in damages to GSK. Abbott appealed the jury verdict on the contract claim, and GSK crossappealed. On cross-appeal, GSK contends that a new trial is warranted on all counts, including the contract claim, because Abbott unconstitutionally used a peremptory strike to exclude a juror on the basis of his sexual orientation. We hold that the exclusion of the juror because of his sexual orientation violated Batson and we remand for a new trial. II. The Batson analysis involves a three-part inquiry. First, the party challenging the peremptory strike must establish a prima facie case of intentional discrimination. Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006). Second, the striking party must give a nondiscriminatory reason for the strike. See id. Finally, the court determines, on the basis of the record, whether the party raising the challenge has shown purposeful discrimination. Id. Because the district judge 6

21 Case: /21/2014 ID: DktEntry: 83-1 Page: 7 of 40 applied the wrong legal standard in evaluating the Batson claim, we review the Batson challenge de novo. United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009). To establish a prima facie case under Batson, GSK must produce evidence that 1) the prospective juror is a member of a cognizable group; 2) counsel used a peremptory strike against the individual; and 3) the totality of the circumstances raises an inference that the strike was motivated by the characteristic in question. Collins, 551 F.3d at 919. [A] defendant satisfies the requirements of Batson s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Johnson v. California, 545 U.S. 162, 170 (2005). The burden on the challenging party at the prima facie stage is not an onerous one. Boyd v. Newland, 467 F.3d 1139, 1151 (9th Cir. 2004). It is a burden of production, not a burden of persuasion. Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir. 2010). GSK has established a prima facie case of intentional discrimination. Juror B was the only juror to have identified himself as gay on the record, and the subject matter of the litigation presented an issue of consequence to the gay community. When jury pools contain little racial or ethnic diversity, we have held 7

22 Case: /21/2014 ID: DktEntry: 83-1 Page: 8 of 40 that a strike of the lone member of the minority group is a relevant consideration in determining whether a prima facie case has been established. Id. at 955. We have further cautioned against failing to look closely at instances in which the sole minority is struck from the venire; this is because failure to do so would innoculate peremptory strikes against Batson challenges in jury pools with scant diversity. Collins, 551 F.3d at 921; see also United States v. Chinchilla, 874 F.2d 695, 698 n.5 (9th Cir. 1989) ( [A]lthough the striking of one or two members of the same racial group may not always constitute a prima facie case, it is preferable for the court to err on the side of the defendant s rights to a fair and impartial jury. ). There is also reason to infer that Abbott struck Juror B on the basis of his sexual orientation because of its fear that he would be influenced by concern in the gay community over Abbott s decision to increase the price of its HIV drug. When we analyzed whether the appellant had made out a prima facie case in Johnson v. Campbell, 92 F.3d 951 (9th Cir. 1996), for instance, we found it significant that the struck juror s sexual orientation had no relevance to the subject matter of the litigation. Id. at 953 & n.1. The converse is true as well. In J.E.B. v. Alabama, 511 U.S. 141 (1994), the Supreme Court stated that when the gender of the juror 8

23 Case: /21/2014 ID: DktEntry: 83-1 Page: 9 of 40 coincided with the subject matter of the case, the potential for an impermissible strike based on sex increases substantially. Id. at 140. Here, the increase in the price of the HIV drug had led to considerable discussion in the gay community. Upon raising the Batson challenge, GSK s counsel argued that the subject matter of the litigation raised suspicions regarding the purpose of the strike: The problem here... is the litigation involves AIDS medications. The incidents [sic] of AIDS in the homosexual community is well-known, particularly gay men. The potential for relying on impermissible stereotypes in the process of selecting jurors was particularly acute in this case. Id.; see also Powers v. Ohio, 499 U.S. 400, 416 (1991). 1 Viewing the totality of the circumstances, we have no difficulty in 1 In evaluating an ineffective assistance of counsel claim for failure to raise a Wheeler claim, the California analog of a Batson claim, we stated that asking Hispanic-surnamed venire members whether they would be biased in evaluating a case involving a Hispanic defendant did not pose any constitutional problem because asking questions about potential bias is the purpose of voir dire. Carrera v. Ayers, 699 F.3d 1104, 1111 (9th Cir. 2012) (en banc). Carrera suggests that if Abbott s counsel was concerned that gay members of the jury pool might be biased because the price increase had gained some notoriety in the gay community, he could have questioned Juror B about this potential bias. Instead of pursuing this line of questioning about Juror B s ability to assess the case fairly, Abbott s counsel struck him without any indication that he was biased, thereby raising the inference that he had relied on an impermissible assumption about Juror B s ability to be impartial. 9

24 Case: /21/2014 ID: DktEntry: 83-1 Page: 10 of 40 concluding that GSK has raised an inference of discrimination and established a prima facie case. Also, Abbott declined to provide any justification for its strike when offered the opportunity to do so by the district court. After the judge stated that she might reject the Batson challenge on legal grounds that were in fact erroneous, 2 she told Abbott s counsel that he could adopt those grounds, although she advised him that it might be the better part of valor to reveal the basis for his strike. Abbott s counsel replied that he would rely on the grounds given by the judge and further explained, I don t think any of the challenge applies. I have no idea whether he is gay or not. He later added that he could not have engaged in intentional discrimination because this was only his first strike. 2 The district judge offered her view that Batson did not apply in civil cases or when only a single member of a protected group is struck. The first statement that Batson does not apply to civil cases is clearly incorrect. The Supreme Court held over twenty years ago that Batson applies in the civil context. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991). Her statement that Batson does not apply when only a single member of the given group is excluded is also a legal error because [t]he [C]onstitution forbids striking even a single prospective juror for a discriminatory purpose. United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994); see also Snyder v. Louisiana, 552 U.S. 472, 474 (2008) (citing and quoting Vasquez-Lopez). Her final statement expressing uncertainty about whether Batson applies to sexual orientation is the subject of this appeal. 10

25 Case: /21/2014 ID: DktEntry: 83-1 Page: 11 of 40 Counsel s statement that he did not know that Juror B was gay is neither consistent with the record nor an explanation for his strike. First, Juror B and the judge referred to Juror B s male partner several times during the course of voir dire and repeatedly used masculine pronouns when referring to him. Given the information regarding Juror B s sexual orientation that was adduced during the course of voir dire, counsel s statement was far from credible. See Snyder, 552 U.S. at (comparing counsel s proffered reasons with the plausible facts on the record). Second, the false statement was non-responsive; it was simply a denial of a discriminatory intent and it in no way provided a reason, colorable or otherwise, for striking Juror B. Counsel s denial of a discriminatory motive had the opposite effect of that intended. Because the denial was demonstrably untrue, it undermines counsel s argument that his challenge was not based on intentional discrimination. Taking all these factors together, including the absence of any proffered reason for the challenge, a strong inference arises that counsel engaged in intentional discrimination when he exercised the strike. 3 Paulino v. Harrison (Paulino II), 542 F.3d 692, (9th Cir. 2008); see also Johnson, 545 U.S. at 3 Abbott s adoption of the court s erroneous legal reasons why Batson might be inapplicable to the type of trial before her does not, of course, provide or even suggest any explanation as to why counsel struck Juror B. 11

26 Case: /21/2014 ID: DktEntry: 83-1 Page: 12 of n.6 ( In the unlikely hypothetical in which [counsel] declines to respond to a trial judge s inquiry regarding his justification for making a strike, the evidence before the judge would consist not only of the original facts from which the prima facie case was established, but also [counsel s] refusal to justify his strike in light of the court s request. ). Abbott s counsel asked Juror B only five questions and failed to question him meaningfully about his impartiality or potential biases. See Collins, 551 F.3d at 921. Combined with Abbott s counsel s statement, in the face of clear evidence in the record to the contrary, that he did not know that Juror B was gay, the voir dire reveals that Abbott s strike was based not on a concern for Juror B s actual bias, but on a discriminatory assumption that Juror B could not impartially evaluate the case because of his sexual orientation. See Kesser, 465 F.3d at Finally, Abbott attempts to offer several neutral reasons for the strike in its brief on appeal to our Court, but these reasons are also belied by the record. See id. at 360 ( [I]f a review of the record undermines... many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination. ). Ordinarily, it does not matter what reasons the striking party might have offered because [w]hat matters is the real reason [the juror was] stricken, Paulino v. Castro (Paulino I), 12

27 Case: /21/2014 ID: DktEntry: 83-1 Page: 13 of F.3d 1083, 1090 (9th Cir. 2004) (emphasis in original): that is, the reason offered at the time of the strike, if true. Here, Abbott offered no reasons for the strike at the voir dire, but we know from the reasons offered on appeal after full deliberation by highly respected and able counsel that even the best explanations that counsel could have offered are pretextual. 4 See Kesser, 465 F.3d at One reason advanced by Abbott on appeal is that Juror B was the only juror who had lost friends to AIDS. We reject this reason because it is not supported by the record. Nowhere does the record show that Juror B had friends who died of complications due to HIV or AIDS. A second reason advanced by Abbott on appeal is that Juror B was acquainted with many people in the legal field. Other jurors, however, who were lawyers, and other jurors with close relatives who were lawyers were not stricken but served on the jury. Third, Abbott speculates on appeal that because Juror B was a computer technician at the Court, other jurors might have given extra weight to his opinions. We have more respect for jurors than to credit the idea that Juror B would have more influence on his fellow jurors than would the other jurors, including the two lawyers who remained on the panel. This is the kind of highly speculative rationale that the Supreme Court rejected in Snyder, 552 U.S. at 482. Finally, Abbott points out that Juror B was the only potential juror who testified that he had heard of any of the three drugs at issue. When asked what he knew about the drug, however, Juror B replied, not much, and stated that he had no personal experience with it. Here, three of the four reasons offered by Abbott are pretextual and the record casts strong doubt on the fourth. In such a circumstance, we follow the rule of our en banc decision in Kesser, and conclude that none of those reasons can withstand judicial scrutiny. See id., 465 F.3d at 360 ( A court need not find all nonracial reasons pretextual in order to find racial discrimination. ); see also id. ( Thus the court is left with only two acceptable bases for the challenges.... Although these criteria would normally be adequate neutral explanations taken at (continued...) 13

28 Case: /21/2014 ID: DktEntry: 83-1 Page: 14 of 40 The record reflects that had the district judge applied the law correctly, she would necessarily have concluded that Abbott s strike of Juror B was impermissibly made on the basis of his sexual orientation. See United States v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003). Because GSK has established a prima facie case, Abbott offered no nondiscriminatory reason for its strike of Juror B at trial, and Abbott does not now offer in its brief on appeal any colorable neutral explanation for the strike, only one result is possible here. The prima facie evidence that the strike was based on a discriminatory motive is unrefuted, and on appeal it is clear that Abbott has no further credible reasons to advance nor evidence to offer. Accordingly, we need not remand the question whether a Batson violation occurred. See id. at The record persuasively demonstrates that Juror B was struck because of his sexual orientation. This Court may therefore perform the third step of the Batson analysis and conclude even based on a cold record, that [Abbott s] stated reasons for striking [Juror B] was a pretext for purposeful discrimination. Id. at 969 n.5. III. 4 (...continued) face value, the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency. (quoting Chinchilla, 874 F.2d at 699)). 14