A California appellate court has tossed a criminal jury verdict, finding that prosecutors improperly used peremptory strikes on two gay jurors.

A divided panel of the Third District Court of Appeal on Thursday found that, on top of legitimate concerns about the jurors, the prosecutor had also said the openly gay men might be biased against the victim and lead witness in the case, a closeted gay man.

“The bias alleged by the prosecutor was a product of the prosecutor's impermissible group assumptions, unsupported by the record and based solely on the two jurors' sexuality,” wrote Justice Elena Duarte, who was joined in the opinion by Justice Coleman Blease. “Whether intended or not, that rationale reflects invidious sexuality discrimination that is not permissible.”

The decision is a win for defendant Brady Lee Douglas, his lawyer Kieran Manjarrez of Santa Rosa, and a group of amici represented by Sonali Maitra and Raghav Krishnapriyan of Durie Tangri. Krishnapriyan said in an email Friday that the firm got involved in the case on behalf of Equality California, Lambda Legal, and the National Center for Lesbian Rights in May shortly after the court granted Douglas' petition for a rehearing in the case.

“It pretty quickly became apparent to us that this was an ideal case for our firm to jump in on behalf of the amici: it's an issue of first impression in California, it has broad implications for the rights of criminal defendants—especially those from groups that have been historically disfavored by the judicial system, and the legal issue was cleanly presented by the facts below,” Krishnapriyan said.

In the underlying case, Douglas was convicted of charges related to a high-speed freeway chase where he shot at the car of a man who allegedly had a short-changed his then-boyfriend, a male prostitute.

During voir dire in the case, the prosecutor asked to dismiss the only two gay men among the prospective jurors. When the defense team raised objections, the prosecutor pointed out that one of the men had a long-standing and close relationship with a public defender who had told him she would never “go to the dark side”—meaning become a prosecutor. The other, the prosecutor said, had been engaged and attentive when the defense team spoke, but leaned back and gave short answers when interacting with the prosecution.

On top of those reasons, the prosecutor said the openly gay men might be biased against the lead witness, who until the events that led to trial had been a closeted gay man.

The trial court accepted the prosecutor's relationship- and demeanor-based challenges and didn't address the bias issue.

In Thursday's majority opinion, the Third District said the treatment of the judge below amounted to a “mixed-motive” analysis—an approach that arose in the employment context as a way for employers to show they would have taken adverse action against an employee whether or not any discriminatory factor also contributed.

“We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias,” Duarte wrote.

Durie Tangri's Krishnapriyan noted that the court emphasized the result was based not only on federal constitutional grounds, but on “the California Constitution's due process clause and its guarantee of a jury composed of a representative cross-section of the community.”

In a dissent, Third District Justice Harry Hull Jr. wrote that his colleagues were “well-meaning” but “misguided.” He wrote that he would have remanded the issue to the trial court for mixed -motive analysis of the prosecutor's decision.

“The majority justifies its decision under the broad rubric of fairness and equality, but there may not have been, in the final analysis, anything unfair or unequal in defendant's trial,” Hull wrote. “Reversing the unbiased jury's convictions for a very serious crime under such circumstances—without first determining the motivation and import of what in fact motivated the prosecutor to strike the openly gay jurors—denigrates rather than protects the equality and fairness of our criminal justice system.”

Representatives for the California Attorney General's Office, which is prosecuting the case, didn't respond to a request for comment.