Judge Dismisses Jury Pool In 'Equality 9' Case

Defense Attorneys Claim Prosecutors Excluded Gay Juror During Selection Process

A judge Tuesday dismissed an entire jury pool after lawyers for six same-sex marriage activists accused of trespassing complained that prosecutors had challenged a prospective juror based on his sexual orientation.

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Superior Court Judge Joan Weber, ruling in the so-called "Equality 9" case, granted the defense's motion requesting that she halt jury selection and start over with a new pool. She said she found it "shocking" that the City Attorney's Office removed the juror during the selection process.

Prosecutors objected to the judge's ruling, noting that the juror in question had indicated in his questionnaire that he had previously protested in support of gay rights in the past and was therefore not a suitable juror for the case.

"What we're trying to get is a fair cross section of the community, representative of the defendants that are charged," said Dan Greene, who represents one of the defendants.

The defendants are among five men and four women who were arrested on Aug. 19, 2010 as they demonstrated outside the county clerk's office, demanding that same-sex marriages be allowed in San Diego.

The nine were charged with misdemeanors related to unlawfully blocking the entrance to a public office. Three accepted plea agreements last September, leaving six to go to trial.

Greene said motions to dismiss a jury pool are filed occasionally but seldom granted.

"Judges can get frustrated; they can see things happening in a courtroom that perhaps they think, 'You know what? That just shouldn't have happened,'" said practicing attorney and California Western School of Law professor Mario Conte.

Conte said there is a reason why judges don't often dismiss jury panels.

"Because most of the time both the prosecution and defense will recognize, 'Gee, if I do that I'm going to run into some problems,'" said Conte.

"You have to get at those issues, unfortunately, because they're at the core of any juror's potential bias," said Todd Moore, defense attorney.

Conte agreed, and added, "If I were defending those folks I'd absolutely want to know how people felt about gay marriage, although it is separate from the legal charge."

A hearing is scheduled Wednesday to determine when the case will resume.

Weber has urged prosecutors to consider reducing the misdemeanor charges against the remaining defendants to infractions, saving taxpayers the cost of putting on a trial.

Prosecutors said they had discussed that possibility with City Attorney Jan Goldsmith and were prepared to proceed with the case as currently charged.

According to spokesman Jonathan Heller, the City Attorney's Office "is certainly willing to agree to try this case as an infraction if the defense proposes it."

Prosecutors would not comment on the jury situation, only saying the case is simply about violating the law.

"It has nothing to do with same sex marriage or anything else, anybody else's political views or points of views," said Assistant City Attorney Andrew Jones outside the courtroom Tuesday.

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