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DECISIONS When a doctor who sued for age discrimination wanted to strike two young jurors from the panel, a trial court wouldn’t let him. The Massachusetts Appeals Court said it should have. The doctor, Paul Gates, had been a physician for the Norfolk County, Mass., sheriff’s department for 44 years, the last four as its medical director, when in 1997 Sheriff John Flood told him that he was being forced into retirement because he was over the age of 65. When Gates learned that his position was not covered by mandatory retirement, he sued Flood. Gates v. Flood, No. 00-P-1728. A jury found that Flood had not discriminated on the basis of age. Gates didn’t like the verdict-or the jury. He had wanted to use his peremptory challenges to strike two of the jurors. The trial court refused, holding that age was a suspect class, and, as such, could not be the basis of peremptory challenges. The appeals court reversed and ordered a new trial, holding that Gates was free to use the challenges to strike young jurors. Quoting U.S. Supreme Court precedent, it said, “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.” While acknowledging that peremptory strikes cannot be used in criminal cases to eliminate jurors on the basis of sex, race, color, creed or national origin, the court held that there was no such prohibition against strikes based on age in criminal or civil cases. “The judge’s disallowance of the plaintiff’s right to exercise two of his peremptory challenges entitles the plaintiff to a new trial,” it said.

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