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Judge calls prosecutor's rejection of gay juror 'shocking'

Jeff Herrera/NBC San Diego

A group of protesters attempted to enter the clerk's office in San Diego, August 19, 2010, but they were told they would only be allowed inside if they had an appointment.


A judge in San Diego has dismissed an entire jury panel in a case involving same-sex marriage activists, saying the prosecutors’ rejection of a possible juror because of his sexual orientation violated the defendants’ rights to a representative jury, local media reports say.

Superior Court Judge Joan Weber issued the ruling Tuesday after lawyers for the group of activists, known as the “Equality 9,” challenged the rejection of the juror, who was gay and had protested in support of gay rights in the past, The San Diego Union-Tribune reported.

Defense attorneys said the juror’s dismissal violated their clients’ rights to a fair trial. But prosecutors said answers given on a questionnaire by the potential juror, including the past protest, were the reasons why he was let go, according to the Tribune. Assistant City Attorney Andrew Jones said the case was focused on the actions of the activists.

“That's all that this is about,” Jones said. “It has nothing to do with same-sex marriage.”

The judge said the prosecutors’ actions were “shocking” and she was “heartbroken,” according to the Tribune and NBCSanDiego.com.

Weber's decision to dismiss an entire jury panel was "fairly rare" and "doesn't happen every day," Scott Burns, executive director of the National District Attorneys Association, told msnbc.com. 

He thought the prosecutors did not overstep their bounds.

"People get removed from juries all the time for all kinds of reasons," he said. "There was nothing shocking about them removing somebody who they believed could not be fair and impartial.”

Gay & Lesbian Alliance Against Defamation (GLAAD) President Herndon Graddick disagreed.

"Attempting to exclude a group of people from participating in the legal process is un-American," he said, adding that many states -- though not California -- lack protections for gay jurors.

David Loy, legal director of the American Civil Liberties Union of San Diego & Imperial Counties, said “the judge clearly did the right thing.”

“Jurors should not be excluded from service because of their sexual orientation any more so than they can be excluded because of race or gender,” he told msnbc.com.

The group of defendants -- originally nine, but now six -- were charged with refusing to disperse and interfering with the business of a public agency for holding a long, sit-down protest in a hallway outside the county clerk's office on August 19, 2010, according to NBCSanDiego.com.

They had been protesting in support of a couple who had made an appointment to marry after U.S. District Judge Vaughn Walker overturned Prop. 8, California’s same-sex marriage ban, and said the marriages could begin Aug. 18 of that year.

However, the county clerk would not certify same-sex marriages because Walker’s ruling was set aside pending appellate review.

Of the nine protesters, three accepted a deal from the city attorney’s office to plead no contest to an infraction, according to the Tribune. The lawyers will be in court early Wednesday to talk about the next steps in the case of the remaining six.

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