Jury Selection: Peremptory Challenges vs. Equal Protection Clause

Daniel Osazuwa, a homosexual male, who was born in Nigeria was arrested for assaulting a prison guard while serving time after a bank fraud conviction.  Mr. Osazuwa claimed he was giving the guard a hug, a gesture native to his African traditions, and that the homophobic man overreacted. 

At Osazuwa’s trial last year, the prosecution used one of their peremptory challenges to remove a woman from the jury pool.   Now, the subject of the current Appellate Court case in the 9th circuit, is whether this woman was removed from the jury selection pool because she was purportedly a lesbian.  Peremptory challenges allow both parties to remove potential jurors without giving a reason justifying their decision to do so.  Although this provides the attorneys with quite a bit of flexibility, it does not however, trump the equal protection clause of the Constitution, forbidding discrimination against certain groups based upon one’s race, gender or ethnicity.  Osazuwa’s defense attorneys have submitted that the clause’s protection should now extend also to one’s sexual orientation.

Prosecutor Mark R. Yohalem claims that the woman was removed from the jury for reasons other than her sexual orientation.   Specifically, the prosecutors submit that when the woman was asked whether anyone had positive or negative feelings towards Nigerians, the woman allegedly replied that she had close Nigerian friends.  On the other hand, Osazuwa’s defense counsel argues that the prosecution’s submission of this information was untrue in that the potential juror was stricken from the jury pool due to her sexual orientation as a lesbian and therefore, the constitutionality of such a peremptory strike should be addressed.  

A ruling that homosexuals are to be included in the heightened protection of the equal protection clause would prove a dramatic advancement in the rights of gay people.  A blanket of security under the Constitution means the right to challenge a whole new set of laws on the grounds of discrimination against one’s sexual orientation. Osazuwa’s jury selection case could have a ripple effect far beyond expected lengths.

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