8th Circs sidestep Batson challenges against gays

In two companion cases, the 8th Circuit sidesteps the issue whether Batson {no peremptory challenges based on race} would extend to jurors' sexual orientation. The US Attorney offered a legitimate non-discriminatory reason for striking a gay juror in United States v. Eugene Blaylock U.S. Court of Appeals Case No. 04-1535 and United States v. Timothy Ehrmann U.S. Court of Appeals Case No. 04-1646 District of MinnesotDistrict of Minnesota. In 1994 Scotus extended Batson to juror challenges based on gender. JEB v. Alabama and the California Supreme Court and 9th Circuit Court of Appeals have assumed Batson includes sexual orientation. Although the California Supreme Court has held sexual orientation should be a protected class for jury selection purposes, see People v. Garcia, 92 Cal. Rptr. 2d 339, 347-48 (2000), and the Ninth Circuit has assumed, without deciding, sexual orientation qualifies as a Batson classification, Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996), neither the Supreme Court nor this circuit has so held.While we doubt Batson and its progeny extend constitutional protection to thesexual orientations of venire persons, our review of the trial record persuades us thateven if Blaylock made a prima facie case of purposeful discrimination, his Batsonobjection fails, because the government offered legitimate nondiscriminatory reasonsfor striking the panel member. The prosecutor told the district court that hequestioned the suitability of this panel member before learning of the panel member’ssexual orientation. Specifically, the prosecutor explained to the court he wasconcerned by te panel member’s liberal education and his musician background, andthe prosecutor felt the panel member was a potential loner. Blaylock offered noevidence to show the prosecutor’s proffered reasons were pretextual. Accordingly,we find no clear error.