Gay rights advocates are cheering an unpublished opinion from the U.S. Court of Appeals for the Eleventh Circuit overturning a verdict because the judge refused to allow jurors to be questioned about bias against homosexuals.

In a per curiam opinion released Thursday, the court reversed U.S. District Court Senior Judge James King of the Southern District of Florida.

“The district court abused its discretion by failing to inquire about prejudice on the basis of sexual orientation during voir dire,” said the opinion from a panel that included Judges Frank Hull and Adalberto Jordan along with Sixth Circuit Judge Ronald Gilman, sitting by designation.

The decision grants a new trial to Raymond Berthiaume, who is suing the city of Key West and a police officer, David Smith, alleging excessive force, false arrest, false imprisonment, battery and malicious prosecution.

“LGBT individuals facing trial have the same right to a jury of their peers, free from prejudice, as every other American,” D'Arcy Kemnitz, executive director of the National LGBT Bar Association, said in a news release Thursday. “Today's decision goes a long way in ensuring that these rights are granted. No one should ever face a jury filled with potential animus, and it is time that members of the judiciary recognize sexual orientation and gender identity as legitimate classes in need of protection.”

The LGBT Bar Association filed an amicus brief supporting Berthiaume, as did Lambda Legal Defense and Education Fund, the ACLU of Florida, the National Association of Public Defense, and the Florida Association of Criminal Defense Lawyers.

Berthiaume was represented on appeal by a team of attorneys with Ackerman in Tallahassee, including Ryan O'Connor, Robert Noll Jr., Katherine Giddings and Whitney Untiedt, along with trial lawyer Hugh Koerner, who has a law office in Hollywood, Florida.

O'Connor provided this statement by email: ”This case was about ensuring LGBT individuals receive what all litigants expect—a fair trial. We were very pleased with the opinion and are confident Mr. Berthiaume will get the trial he deserves on remand.”

Koerner called the decision “significant and long overdue.”

“It's obvious the circuit took the concerns raised in the appeal seriously,” Koerner said. “All persons, regardless of sexual orientation, should be entitled to a fair trial, free of fear that any person sitting on the jury would harbor prejudices against them.”

Key West and Smith were defended by Michael Burke and Juan Martinez of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman of Fort Lauderdale. They could not be reached immediately.

The story begins with a late-night party on the streets of Key West starting on the evening of Oct. 26, 2013, and continuing to the early morning hours of the next day.

Berthiaume attended the Fantasy Fest parade with his then-partner and now-husband, Jhon Villa, along with friend Corey Smith and Berthiaume's former partner, Nelson Jimenez, according to the opinion. After the parade, they all stayed for the street party afterward. In the early morning, Berthiaume, Villa and Smith were ready to go home and returned to their car. Jimenez stayed behind in one of the gay bars in the area.

The three waited at the car “for some time,” the judges wrote. Finally, Berthiaume went to find Jimenez to take him home so they all could leave. As Berthiaume led his ex out the bar, Jimenez grabbed the car keys, twisted away and ran off down an alley.

“Berthiaume, clad only in boxer shorts or a loincloth and flip-flops, followed Jimenez to retrieve the keys,” the judges wrote, adding in a footnote that the police used the term loincloth but the friends said he was wearing boxer shorts. “During his pursuit of Jimenez, Berthiaume became frustrated and banged his hand against a street sign before continuing down the alleyway.”

This caught the attention of Smith and a group of police officers patrolling the Fantasy Fest that night, who said they thought they were witnessing a fight—although they admitted the only physical contact they saw was Berthiaume “swatting and grabbing at Jimenez with both hands” for the keys as Jimenez tried to pull away.

“Lieutenant Smith and the other officers who were in the vicinity ran toward the alley to intervene. When he caught up to Berthiaume, Lieutenant Smith pushed Berthiaume in the shoulder to stop him from pursuing Jimenez, causing Berthiaume to fall to the ground,” the judges wrote. “As a result of his fall, Berthiaume suffered a fractured wrist and jaw, both of which ultimately required surgery.”

Then Smith arrested Berthiaume, even though Jiminez said nothing wrong happened and did not want to press charges. Smith called it “a preferred arrest by the State of Florida” in “domestic situations” to ensure that the aggressor is separated from the victim. In a footnote, the judges said the state “subsequently declined to prosecute Berthiaume.”

At trial, the jury found in favor of the city and the police officer. The reversal turns on the judge's refusal to allow Berthiaume's lawyers to ask potential jurors this question: “Do you harbor any biases or prejudices against persons who are gay or homosexual?”

Not knowing that sexual orientation was going to be a subject of the trial, the potential jurors had “no reason to offer up prejudices they might harbor on that basis” during voir dire, the judges said.

“Moreover, the district court asked the jurors multiple questions about any biases or prejudices they might have against law enforcement. But the district court refused to ask any questions about prejudice on the basis of sexual orientation. Therefore, we have no way to discern whether the jury was biased against Berthiaume for that reason,” the judges wrote.

“Given the repeated testimony at trial concerning Berthiaume's homosexual relationships with Villa and Jimenez, and the characterization of the altercation that led to Berthiaume's arrest as a domestic dispute, the risk that latent, undiscovered prejudices may have influenced the jury's verdict is substantial,” the court concluded.

The case is Berthiaume v. Smith and Key West, No. 16-16345.

 

 

Gay rights advocates are cheering an unpublished opinion from the U.S. Court of Appeals for the Eleventh Circuit overturning a verdict because the judge refused to allow jurors to be questioned about bias against homosexuals.

In a per curiam opinion released Thursday, the court reversed U.S. District Court Senior Judge James King of the Southern District of Florida.

“The district court abused its discretion by failing to inquire about prejudice on the basis of sexual orientation during voir dire,” said the opinion from a panel that included Judges Frank Hull and Adalberto Jordan along with Sixth Circuit Judge Ronald Gilman, sitting by designation.

The decision grants a new trial to Raymond Berthiaume, who is suing the city of Key West and a police officer, David Smith, alleging excessive force, false arrest, false imprisonment, battery and malicious prosecution.

“LGBT individuals facing trial have the same right to a jury of their peers, free from prejudice, as every other American,” D'Arcy Kemnitz, executive director of the National LGBT Bar Association, said in a news release Thursday. “Today's decision goes a long way in ensuring that these rights are granted. No one should ever face a jury filled with potential animus, and it is time that members of the judiciary recognize sexual orientation and gender identity as legitimate classes in need of protection.”

The LGBT Bar Association filed an amicus brief supporting Berthiaume, as did Lambda Legal Defense and Education Fund, the ACLU of Florida, the National Association of Public Defense, and the Florida Association of Criminal Defense Lawyers.

Berthiaume was represented on appeal by a team of attorneys with Ackerman in Tallahassee, including Ryan O'Connor, Robert Noll Jr., Katherine Giddings and Whitney Untiedt, along with trial lawyer Hugh Koerner, who has a law office in Hollywood, Florida.

O'Connor provided this statement by email: ”This case was about ensuring LGBT individuals receive what all litigants expect—a fair trial. We were very pleased with the opinion and are confident Mr. Berthiaume will get the trial he deserves on remand.”

Koerner called the decision “significant and long overdue.”

“It's obvious the circuit took the concerns raised in the appeal seriously,” Koerner said. “All persons, regardless of sexual orientation, should be entitled to a fair trial, free of fear that any person sitting on the jury would harbor prejudices against them.”

Key West and Smith were defended by Michael Burke and Juan Martinez of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman of Fort Lauderdale. They could not be reached immediately.

The story begins with a late-night party on the streets of Key West starting on the evening of Oct. 26, 2013, and continuing to the early morning hours of the next day.

Berthiaume attended the Fantasy Fest parade with his then-partner and now-husband, Jhon Villa, along with friend Corey Smith and Berthiaume's former partner, Nelson Jimenez, according to the opinion. After the parade, they all stayed for the street party afterward. In the early morning, Berthiaume, Villa and Smith were ready to go home and returned to their car. Jimenez stayed behind in one of the gay bars in the area.

The three waited at the car “for some time,” the judges wrote. Finally, Berthiaume went to find Jimenez to take him home so they all could leave. As Berthiaume led his ex out the bar, Jimenez grabbed the car keys, twisted away and ran off down an alley.

“Berthiaume, clad only in boxer shorts or a loincloth and flip-flops, followed Jimenez to retrieve the keys,” the judges wrote, adding in a footnote that the police used the term loincloth but the friends said he was wearing boxer shorts. “During his pursuit of Jimenez, Berthiaume became frustrated and banged his hand against a street sign before continuing down the alleyway.”

This caught the attention of Smith and a group of police officers patrolling the Fantasy Fest that night, who said they thought they were witnessing a fight—although they admitted the only physical contact they saw was Berthiaume “swatting and grabbing at Jimenez with both hands” for the keys as Jimenez tried to pull away.

“Lieutenant Smith and the other officers who were in the vicinity ran toward the alley to intervene. When he caught up to Berthiaume, Lieutenant Smith pushed Berthiaume in the shoulder to stop him from pursuing Jimenez, causing Berthiaume to fall to the ground,” the judges wrote. “As a result of his fall, Berthiaume suffered a fractured wrist and jaw, both of which ultimately required surgery.”

Then Smith arrested Berthiaume, even though Jiminez said nothing wrong happened and did not want to press charges. Smith called it “a preferred arrest by the State of Florida” in “domestic situations” to ensure that the aggressor is separated from the victim. In a footnote, the judges said the state “subsequently declined to prosecute Berthiaume.”

At trial, the jury found in favor of the city and the police officer. The reversal turns on the judge's refusal to allow Berthiaume's lawyers to ask potential jurors this question: “Do you harbor any biases or prejudices against persons who are gay or homosexual?”

Not knowing that sexual orientation was going to be a subject of the trial, the potential jurors had “no reason to offer up prejudices they might harbor on that basis” during voir dire, the judges said.

“Moreover, the district court asked the jurors multiple questions about any biases or prejudices they might have against law enforcement. But the district court refused to ask any questions about prejudice on the basis of sexual orientation. Therefore, we have no way to discern whether the jury was biased against Berthiaume for that reason,” the judges wrote.

“Given the repeated testimony at trial concerning Berthiaume's homosexual relationships with Villa and Jimenez, and the characterization of the altercation that led to Berthiaume's arrest as a domestic dispute, the risk that latent, undiscovered prejudices may have influenced the jury's verdict is substantial,” the court concluded.

The case is Berthiaume v. Smith and Key West, No. 16-16345.