soon when he appeared for his trial in the city of against us if he was all he was seeking all he expected was the same thing that anybody expects when they appear for a trial and that's to have a fair trial before an impartial jury unfortunately for mr murthy the trial that he received was anything but fair and impartial there were two critical errors that occurred during the jury selection process that essentially gave mr birthing this unfair trial the first of which was the district court's refusal to ask mr burr themes proposed what to your question in which he sought to ensure that the jury that would hear his case would not have any bias or prejudice is against a gay person like mr worth you the second heir was a district court allowing the city to strike two jurors who mr worth you recognize as being now me if i could ask you at some point during your argument to explain on the second issue what record  when we're talking about the proposed water question that the judge refused to ask you have to keep in mind what kind of case this was we're talking about a case in which the plaintiff mr berg is a gay man and when in a case where the fact that he is gay will be made known to the jury explicitly numerous times over it was virtually impossible for mr worthing to present his case or for the city for that matter to present its defense without informing the jury several times that mr murthy was gay that he is married to another man who  also one of the witnesses that he was formerly romantically involved with a different man who is also one of the witnesses and that mr berg you know has three companions were all down in key west celebrating at fantasy fest during  attending gay bars things of that nature all of these facts would be explicitly before the jury and on top of all of that we're talking about a case in which the mr berthiaume the entire purpose of the trial was for mr murthy to prove that he was wrongfully arrested they are what he was arrested for was domestic violence against another man that was the city's entire position the entire reason they say that they had probable cause for his arrest is because they believed that he had committed domestic violence against someone who they assumed was just a matter partner and of course i was incorrect mr burns you most dating mr via at the time but the fact of the matter is this is a case in which issues of essentially went out of his way not to ask the question he he after reading the quote the proposed question the judge sort of made these general at generally advise the jury to be fair to everyone in the matter their background but did not mention homosexuality in any way and what this court has held in the base case is a few years ago when it looked at facts nearly identical to this is that when you have a case like this where you have a case in which the issues of writing is that correct strike your own and this question was not there no it wasn't it was in the supplemental question that was i'm standing just want to walk through what happened and and did the court give all twenty three of was no objection for you to cover any of the questions you just read on our and then the defendant's and then three forward to a question try i believe so yes ok and then on the day of trial that's all pretrial the questions were sent and pretrial for it so then on the day of trial the jurors of a are and it looks like there are six people on the box and so the judge start to asking the correct and then i think you got down to juror number six and then there are some questions they are and it was oh my after one of them was struck that you asked for this question after there was somebody excuse your honor i seems like it was at the end of the raga the ch asking we want to go back and ask this are you prejudiced or have any bias forgive me i'm not sure exactly how where and when that occurred but i do know that the judge solicited these supplemental questions on the record without being asked to urge the parties to submit a any type of self or middle what what is this during the middle of the vardar yes your honor it is ok and he asked the attorneys to write it down on the yellow legal pad and to give it to the bailiff who would give us the judge and that's what mr burton was attorney and why did he do that i assumed like cause that to happen your honor i don't know that the record really explains that i had my understanding is that the judge knew that he was essentially attorneys get to ask any follow up questions at all on any issues putting these issues aside it did not your honor that did not give the attorneys a chance at all to ask any questions directly to the jurors and that's really frankly part of the problem here the we don't dispute th judge had discretion to conduct his body or how he would like but we're talking about an issue so critical as juror prejudice against someone who is who is gay which this court has recognized there will be someone on virtually every jury who has those type of prejudices that mr birth you should be given at least a chance to ask the question so hot go ahead bob was an international questions in this so much a part of the case why didn't he put them in their original twenty three question your honor i don't know that the least with the ninth circuit is found in the forgive me the united states versus a neck who is that there's the fact that the question was submitted is enough to preserve the issue there are two elements there is did did you ask did you raise this is a ground in your you don't know whether you were you raised it or not in your motion for i have to go and review the record again but i do know that the issue was before the court it was raised sufficiently to preserve the issue and the judge was on it was aware that this was an issue it was raised in the pleadings the fact that mr berg human his companions were gay it was certainly raised when the proposed question was submitted and it was raised when the bassem challenge was made it was made explicitly clear to the judge that we're talking about parties who are gay here so that the court was on notice it knew that this was an issue and something so critical it was vital that the court at least ask the question could you in the little time you have left turn to the question i had asked before certainly your honor and in terms of what on the record shows these witnesses are gay what what the courts have all held is that when looking at the first prong of batson the that prong is not an onerous one that's what the course of said it's all you have to do is present enough information to raise an inference of discrimination and what mr vers use council did with very little opportunity that the judge allowed him to present this his challenge was to say your honor my client is gay his wit all of his companions are gay the city just struck the only two witnesses who were gay and the reason that they knew that was because based on their his observations of the jurors and based on the fact that one of them said that he was in a domestic relationship you're saying that you guys were stereotyping as well no your honor i wouldn't say stereotyping but it when we're talking about something that's not an obvious is just like a juror who we're talking about religion something that you cannot pick up on it's not explicit you have to just go with what you have and it's precisely the reason that you need to have some time to type of inquiry to i know i know i know all of that but it seems to me that these two jurors who are in different factual circumstances one you might have an inference the other one i forget which was which there's almost nothing to indicate that roger she was game runner i understand that and i would recognize that over my to know you can go ahead and answer the question  the that all speaks to the underlying problem here and that's that the judge didn't allow i know but you're trying to bleed that other issue into this one and you have a separate stand alone batson claim and in order for you to succeed on that claim one of the first things you have to establish is that these two jurors belong to a category that deserves some sort of protection right your honor my my question is what evidence in the limited record you were able to develop shows where it leads to an inference that these two individuals were gay your honor aside from what i just said the information that i had pointed out is all there is but the fact of the matter is the only reason that there wasn't more was because the judge didn't allow an opportunity to inquire and what the second circuit held in jordan versus love is that the refusal to allow an opportunity to develop what do you want to and car say what is your sexual orientation is that what you wanted to ask the jar is that would have inquiry but it's no different then asking about a person's religion that's also a very personal thing it's not obvious under batson we know that's the type of inquiry you get to have if you want to make sure that your the jurors are not improperly stricken so there has to be some type of procedure or judge king saying to be reluctant to allow you to ask that type of a personal question that's correct or wrong so he went on about saying you're not to be produced by the witness by a considerations dealing with their race their gender the whatever whatever their background their religion those things are basically in the tiriel wrecked and you don't like that was enough instruction to the jury no it's not your honor in the fact that's what this court held in the base case there is not enough to just give a general i've been ition you have to specifically ask about this i've precious your argument is not just that it helps with regards to cost challenges but also allows you to exercise your per challenges in a meaningful way you may have someone who says that he or she can be fair but if they also say that they have a bias against those individuals who are gay or lesbian you might choose to not believe that jurors first statement and choose to exercise a peremptory challenge against i'm correct your honor this is it goes to the heart of the matter which is you need to know these types of question answers just to understand the type of jury that you have i have a record question about after us to be able to ask the jurors with a bias or prejudice that's all i'm going to ask the other requests suggestions are good morning my name is michael burke and i represent the city of key west and david smith in this matter if i could start by trying to address some of the questions that were asked about the record in the procedures in the case i did try the case and in answer to your question judge gilman my recollection is that the two issues that are on appeal were the two issues that were raised in the motion for new trial the basic background and record of this case is it was a straightforward police misconduct case there was no pretrial motions the defendant's answered the court had available to it other than the complaint which is i recall states that mr missed it no where does a state that mr burton you was gay the plate the birth be was gay or that other people were gay it stated that his then partner mr v loss and his ex partner mr howe menace it there's two references to that in the entire complaint other than that it's a claim for false arrest and excessive force the trial judge had the joint pretrial stipulation of the parties which we have filed a made part of of a supplemental appendix no no mention this case had nothing to do with anybody sexual orientation or sexual activity of any cannot well you say that i think that is correct with regards to what happened but all the background his his sexuality was going to come out the fact that he no doubt about that yes and part of the reasons why the commotion began was going to come out  right from this case the fact that he was gay and that he had had a relationship with the man he was chasing and he was a cute yes right that only women it's impossible for that to not have come out it is true so although you may be right that the reasons for the alleged actions of the officer were not tied to his sexuality sexuality was going to become a part of this case no matter what any party tried to do or not do well with the fact that he was gay was going to come out not only not only not only that he was gay yes but some of the explanation for some of his own conduct i'm not following what you're referring to there was a chasing is ex partner ok yeah so i was going to come out yes you don't think in a case like that it's important for a jury to be asked whether or not anyone can put that issue to the side and decide fairly well i didn't object to the question and i would have had no problem with being asked certainly not the question is whether it constitutes reversible air i would have no problem with it at  extremely tolerant area it's solicits the gay and lesbian community to visit but you know hundred percent of the populace agree that's true it's always possible i mean if the issue here is that if you have someone who is either a witness or a party who is gay and if the trial judge does not asked the jurors about their feelings about gay people if they have any inclination that that may come up during trial  york very minimal that was provided the trial judge will then yeah i mean that's that the court needs to announce that because that's that's not here to for been in any case anywhere in this country that a specific question like that has to be asked to select a fair and impartial jerk what i'm saying what i'm trying to give the court some sense of the record about was in this case the only mention of it for the judge the judge is being called upon to conduct this inquiry the only mention of it is in the complaint the word partner an ex partner nothing in the pretrial stipulation no pretrial motion no written question and in answer to judge holes question as to how the supplemental question comes up very typical with with the way judge king and others in this district conduct for deer they'll conduct the board here the last the jurors the questions and then the judge based on what the jurors will say will do you have any other questions to follow up on what the jurors have said very typical so that's the you know what is the purpose of that so judge king asked them asked the lawyers do you have something else besides what you provided me and that's usually in response to what the jurors have said here nobody has said anything about sexual orientation of any kind this is an afterthought this is an afterthought that he presents of the judge and you you know this judge is you're reviewing his actions for abuse of discretion and this is what he's faced with this what does this have to do with anything why do you think that this or judge didn't address that in the nine the motion for new trials and this was one of the two grounds raised by the  i don't know your honor i don't have an answer for you i'm sorry did i want to make money on my surprise on that there are six perspective jurors in the box and the court complainant asking all the questions of the court's questions  is that when the supplemental question to ask the way the court conducted the jury selection process your honor was there's a jury box and then there's also in the courtroom the gallery like we have here  recollection is that there were jurors prospective jurors seated in the box and others he asked all of them questions including those in the box of they were completed yet weston's completed and and then have them write out had the that was done with respect to all of the jurors who had not yet been challenged he says that he's he's asked all his questions the judge he has and all the written questions that he's going to ask do you have supplemental request and supplemental questions and that's usually in later and it's not like the he doesn't ask the question nobody says will judge here's why we need to ask that here because during this trial something like this is going to occur or nothing nothing like that so that's what we had occur in this case so that's that's the issue number one so as i say to you as i read the cases the failure to ask a specific question one specific question for it to form the basis of were were there is clearly competent substantial supposed drawing evidence to support the decision the jury made no evidence of any kind of of bias or prejudice on the part of this jury none either in response to any of the questions that they that they the information they provided in court or thereafter with respect to these people the my understanding of that is that is an extremely limited area where were an appellate court would say your failure to ask this one question we're going to we're going to we're going to then throw this case out you know there's the case there's a supreme court case were  a person who was very real civic civic a racial activist in the community was criminally charged with a racial oriented crime and in that case the supreme court said these unusual circumstances warrant this so but that's that's what that's what judge king had in front of him when he looked at that question and decided not to ask it well you can sort of you know please go here i was going to your question can you tell jurors what we know about them was we know what they did i tell you everything about it because i've got it in my mind but in terms of what their sexual orientation was we know zip and the only thing in the record was that mr walker indicated that he was single and involved in what he termed a domestic relationship and on the basis after they were struck  they established a prima facia case because the court's the law is clear that if there's not a prima facie case of discrimination the judge the trial judge is precluded to ask the lawyer of as to why he or she struck the juror  in this case i think that's the way this that should be looked at initially by the court and there's no indication that either of these jurors was was gay or heterosexual or homosexual acts i don't sound high sent been true fifty years ago but what about now when the contemporaneously if you have a domestic relationship you assume it's a homosexual one i would not assume that but he did say it was his partner you know i don't know  ask you another way he could've said i was liberal my boyfriend my girlfriend but he did and you know the bottom line is that what the what the plaintiff's lawyer is arguing here although he did not argue it a trot he didn't ask to go further he did as i recall from the record of the time the jurors were excused for cause and the appropriate challenges by the plaintiff there were eight jurors remaining at the time that you had your three peremptory challenges the questioning by the judge indicated five of those  said they were married to a person of the opposite sex they talk about their wife their husband whatever so that we have three jurors who the record does not have done if i what their sexual orientation is and the city excused two of those three  i don't remember that i'd have to go back and look of if your honor has has checked it out i'm sure it's accurate i don't remember that so i mean in the course you didn't have to give justification because you know the judge decided the plaintiff had made out his promise  facie case but why couldn't that be enough to establish the promise face in case why i don't think that it would be it would not be an abuse of discretion i mean it's it would seem to me to be more likely that i discriminate against people who are single as opposed to people who are married  speculation we don't know them well i think it's everything about about that issue would be speculation and that's why it would be proper for the judge it would not be an abuse of discretion for the trial judge to say you haven't you haven't you know what was gay or lesbian it says that it does this show that the i mean i would say i would sure i would say there is the question the judge give the plaintiff the opportunity to develop not or not we did not he did not he did not and i would suggest that that's that's very much in keeping with with what a trial judge would do i don't think that a trial judge is going to out a bunch of people who have not volunteered what their sexual orientation is in a public courtroom just because he's asked to in a case where it doesn't have anything to do with any aspect of the case other than the fact that a party or a witness is gay or lesbian that's a yeah that's a big circumstance here where there are a lot of people out there that are prejudiced against gays i don't i don't know that other people on the jury work of a different sexual orientation than heterosexual i don't know that you know you know the five clearly obviated clearly identified themselves as married to the office you know my best friend growing up is he had his father had then they had five children he later was a gay turned to be a gay man i don't i don't know what their history of their sexual orientation is and i don't think it was error for the judge not to inquire upon that your honor this is a case this was a straightforward case in which there was a dispute in the evidence there was no discussion other than the fact it came up that that there was a partner an ex partner there was nothing of any salacious nature the facts of this case are totally accused of by the city when you're talking about domestic violence obviously than the natural interpretation of that is you're talking about someone with a familial or romantic relationship so that should have alerted the judge in addition to the police on the twenty three written raised in the motion for a new trial so to the extent that that's required which it isn't it certainly is preserved in that sense but to go back to this court's opinion in the bates case the city has mentioned several times that  the prosecution did not have to prove that mr bates was gay as part of its case it i mean it was convenient for them to do so because it helps them establish mr ray's control of his laptop but possession  child pornography has is not there's no part of the elements of that crime that requires the prosecution to prove that he's gay rights is unpublished zachariah it's unpublished your honor but it is the only example that either party has found from this court were has looked at this issue  d when it did it found that the district judge has to ask a question like this when we have issues of sexual orientation that permeate the case it says sexual activities an extra couple a bound up with the central was the case says that the jury was going to learn that mr bates was gay based on the other evidence that the city wanted to introduce which the city was entitled to do but if you the city was erm sorry the prosecution that he was entitled to do but if it was going to it had to is that the evidence of his sexual relationships with a man they sexually explicit photographs of himself with men on the computer and his efforts to meet men are as per court was concerned about was the jury learning that mr bates was gay there was no question whether the jury could be fair to someone after they've seen explicit sexual images the concern was if this jury is going to find out that mr bates is gay we need to make sure they can  other evidence of mr bates attempting to meet other men online things that nature they weren't necessarily explicitly sexual but the fact of the matter is it was the evidence of homosexuality that was prejudicial i think in retrospect  me it's like the earlier case it would have been so easy to as the questions exactly just like you ask of law enforcement are you b a sudden you want to start asking that type of question i don't know but i think it's a good question i asked nothing wrong with this whether it's reversible error here under what happened well and because to talk and how much the issue was in the