Gay defendants’ appeals denied; prosecutor says issue was music, not sex
Ruling August 31 on appeals by two gay men convicted of distributing crystal meth and ecstasy in venues that included circuit parties, a panel of the U.S. Court of Appeals for the Eighth Circuit, based in St. Louis, expressed “serious doubt” that a prosecutor’s successful attempt to keep a gay man off their jury would have tainted the trial verdict, requiring a reversal.
But the court decided it did not have to rule on that question, because the prosecutor had in fact relied on a stereotype about well-educated musicians to justify keeping the man off the jury.
Timothy Ehrmann and Eugene Blaylock were stopped in June 2002 by an Arizona highway patrol officer when Blaylock was driving at 94 miles an hour in a 75 mile-an-hour zone. The stop led to a search of the vehicle, resulting in the recovery of crystal meth in the trunk as well as Ehrmann’s laptop, which contained incriminating e-mail messages.
As a result of an ensuing federal drug investigation, Ehrmann, Blaylock, and several other co-defendants were charged with running an illegal meth and ecstasy distribution operation, and all the co-defendants were jointly tried before Judge Joan N. Ericksen of Minnesota’s U.S. District Court. Ehrmann was convicted on numerous charges involving his leadership in setting up and running the drug distribution scheme, in which Blaylock was a minor player. The jury convicted Blaylock only on lesser charges. Ehrmann was sentenced to 30 years in prison; Blaylock to 10 years.
In identical language in both appellate decisions, Circuit Judge William Jay Riley addressed the argument that the jury convictions were constitutionally tainted because of the prosecutor’s decision to peremptorily block a prospective gay juror. Attorneys in a criminal trial can attempt to keep somebody off the jury either by objecting “for cause”—for example, if somebody is a close relative of a law enforcement officer or involved in the case—or they can make use of “peremptory challenges” to exclude people for any or no reason at all.
Until 1986, a lawyer’s use of a peremptory challenge went unquestioned. In that year, however, the Supreme Court, in what is referred to as the Batson case, ruled that peremptory challenges used to keep people of a particular race off the jury were unconstitutional equal protection violations. Since then, federal courts have used the ruling to monitor attempts by attorneys to play games in jury selection based on sex and religion as well as race. The California Supreme Court, going a step further, ruled in 2000 that using peremptory challenges to keep gay people off a jury presents a similar constitutional problem.
The court of appeals did not buy Ehrmann and Blaylock’s argument that their case was tainted because a gay man in the jury pool was eliminated by the prosecutor’s peremptory challenge.
After expressing “serious doubt” that federal precedent extended to the issue of sexual orientation, Riley wrote, “our review of the trial record persuades us that even if Ehrmann made a prima facie case of purposeful discrimination, his Batson objection fails because the government offered legitimate, nondiscriminatory reasons for striking the panel member.”
What were these reasons?
“The prosecutor told the district court he questioned the suitability of this panel member even before learning of the panel member’s sexual orientation,” wrote Riley. “The prosecutor was concerned about the panel member’s liberal education and background, his livelihood as a musician, and his being a potential loner.”
Riley wrote that Ehrmann had provided “no evidence” that the prosecution simply came up with that explanation as a pretext to mask its true rationale.
Presumably it goes without saying that the pro-defense bias of a musician with a liberal education in a drug case can be readily assumed, or so the court suggests by failing to discuss the point beyond mentioning it. The court would not upset the convictions of Ehrmann or Blaylock over this issue.
The court also refused to throw out videotape evidence stemming from Ehrmann’s visit to a friend in a high-security jail after a drug conviction, during which the men communicated through a videoconferencing device. Riley found that Ehrmann should have expected that his statements might be recorded. During the conversation, Ehrmann told his friend to let him know if the authorities were going to charge the friend with conspiracy, speculated that the authorities were going to try to link Ehrmann with another individual referred to as Bam, and commented that if “they do that they’re looking at Bam like this kingpin in the Gay Mafia so to speak… You or I would be the next best candidate after Bam.”
On appeal, Ehrmann’s attorney charged that introducing the “kingpin in the Gay Mafia” comment unfairly prejudiced the jury, but Riley found that the conversation was so plainly relevant to the drug conspiracy charges against Ehrmann that its relevance outweighed any prejudice. Besides, said Riley, the comment referred to Bam as the kingpin in the Gay Mafia, not Ehrmann.