9th Cir. – Batson prevents use of peremptory on juror based on his sexual orientation

Smithkline Beecham Corporation v. Abbott Laboraties – this was an antitrust suit relating to a licensing agreement and pricing of HIV drugs.  The 9th Cir. reversed a four week trial and 3.5 million verdict because Abbott Labs excercised its first peremptory on the the only venireperson who was openly gay (revealed when male juror repetedly referred toi his partner as a “he”  in questioning).  Abbott justified the strike in the fact that the potential juror was gay and the case dealt with AIDS medication.   But, as the 9th Cir. noted, Abbott failed to ask whether the juror could decide the case fairly and impartially. “We must first decide 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.”

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