A win for the Equality 9

May 7, 2012

Alan Peck reports that the Equality 9 in San Diego are a step closer to justice.

AS PEOPLE took to the streets on May 1 to celebrate International Workers Day, few were expecting a victory to emerge in the struggle for marriage equality.

Shortly before a trial was slated to begin for the Equality 9, protesters who were arrested during a sit-in for same-sex marriage in 2010, San Diego Superior Court Judge Joan Weber dismissed the entire jury, ruling that the prosecution had deliberately dismissed the only two openly gay jurors for no other reason than their sexual orientation.

Should the prosecution choose to pursue the trial, it will have to start over with a new jury pool on September 18.

During the protest where the Equality 9 were arrested on August 19, 2010, more than 100 people turned out in support of same-sex couples who had made appointments for that day to acquire marriage licenses, after Proposition 8 had been ruled unconstitutional by a federal judge earlier that month.

When the clerk denied the same-sex couples their rights, they and their allies decided to sit in. County sheriffs came in riot gear, broke up the protest and arrested the nine when they refused to disperse. A year and a half later, the Equality 9 are still a thorn in the side of City Attorney Jan Goldsmith.

Four of the Equality 9 block a doorway during their 2010 sit-in
Four of the Equality 9 block a doorway during their 2010 sit-in (Mark Gabrish Conlan | Indybay.org)
Goldsmith released a statement stating that the dismissal of the final juror was based on his having participated in gay rights protests in the past, and not his sexual orientation--as if simply participating in a legal protest was an acceptable reason to dismiss a juror.

The prosecution was clearly operating with prejudice, and was thoroughly startled when they were called on it. After the last gay juror was dismissed, the defense made a "Batson/Wheeler" motion, forcing the prosecution to produce a reason for the dismissal.

The judge called counsel into chambers, where she asked the prosecuting attorney for an explanation. All he came up with was that the juror had previously been on two juries that both reached acquittal. The judge understandably considered that a hollow excuse, and it was not until May 1 that Assistant City Attorney Dan Rawlins started talking about the juror's participation in a gay pride or AIDS march years ago. The judge wouldn't accept this newly fabricated reason, and appeared visibly angry.

The city attorney's office has also been under pressure to drop the charges for simply wasting time and taxpayer dollars. The judge said that she had "never had so many jurors express concern about why a prosecutor's office would move forward and spend time and money on a case of this nature." And in a previous hearing, she warned that "this prosecution will cost the taxpayers of this community thousands and thousands of dollars."

GOLDSMITH HAS been trying to lay the blame on the Equality 9 themselves, arguing that three of the nine had accepted plea deals and that the remaining six could save the city money by accepting their generous plea offer. But if the city really believes they've done something wrong and that they can win in court with an unbiased jury, why offer the plea? More importantly, why should innocent people make it easier for the government to prosecute them?

Some 90 percent of all criminal charges in the U.S. injustice system result in a plea deal. This is because the system is set up for conviction, not justice. The accused are regularly brought in on trumped-up charges and denied counsel.

People predictably cave when faced with harsh mandatory sentences for charges the prosecutors know they could never win if they went to trial. Jan Goldsmith is clearly not used to defendants standing up to him, if only by demanding their right to trial and by having competent counsel.

When Proposition 8 passed in November 2008, same-sex marriages ended that day. No delay. No stay. Yet when the law was declared unconstitutional, a stay was issued immediately. The police and the law are always on the side of the bigots until the oppressed and their allies fight back, and those in power know it.

Jan Goldsmith even admits in his apologist manifesto, "We don't want to make these cases into something bigger than they are." He knows that if he drops the charges or loses in trial, it may spark a bigger struggle. That is what the Equality 9 trial is really about.

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