Counsel ineffective in causing bodily injury to an elderly person case for failing to challenge for cause two jurors who expressly stated an inability to be fair and impartial. One had close relationships with law-enforcement officers and one was influenced by his mother’s mugging. Counsel’s failure to challenge these jurors for cause or to remove them with peremptory challenges was deficient and there was no “suggestion of a trial strategy” for counsel’s inaction. Prejudice found because both jurors admitted bias. In addition to their own bias, the court could not “know the effect” of their bias on the remaining jurors. Under AEDPA, the state court’s decision to the contrary was an unreasonable application of clearly established Federal law as determined by the Supreme Court.
2004: Miller v. Webb,
385 F.3d 666 (6th Cir.
2004 )
Counsel ineffective in murder
case for failing to adequately question or challenge actually biased
juror. During voir dire, a juror stated
that she knew the state’s key witness, who was the only eyewitness and
had also been shot. The juror knew her through the juror’s ministry
and
Bible Study in the local jail. She stated she would be "partial" to the
witness and had sympathy for her. While she stated that she "believed"
she could be fair, she qualified this by stating, "I do have some
feelings about her." Counsel did not follow-up with questions or
challenge this juror. Counsel’s conduct was deficient and was not
justified by strategy because counsel believed the juror would know the
witness was unworthy of belief and would know that she was a drug addict
and understand that culture. The court held, contrary to the state
court, that "the decision whether to seat a biased juror cannot be a
discretionary or strategic decision" because it amounts to "a waiver of
a defendant’s basic Sixth Amendment right to trial by an impartial
jury." Under the AEDPA, the state court’s finding that counsel’s conduct
was not deficient was an unreasonable application of Strickland
. Even if strategy
could justify the decision, counsel’s strategy was unreasonable here where the juror clearly did
not indicate a disbelief in the witness’ credibility or knowledge of her being a
drug addict. To the contrary, the juror indicated that she was sympathetic to
the witness. Prejudice presumed because the presence of a biased juror cannot be
harmless.
2001: Hughes v. United States,
258 F.3d 453
(6th Cir. 2001)
Counsel ineffective in theft of government
property case for failing to strike a juror who stated during voir dire that she
would not be fair. The case involved theft of a federal marshal's weapon at
gunpoint and the juror expressed bias because her nephew was a police officer
and she was "quite close" to several detectives. Deficient conduct found because
the juror's failure to respond to generalized questions of the panel about bias
did not constitute an assurance of impartiality because there is a distinction
in "individualized from group questioning for purposed of determining juror bias
on voir dire." Deficiency also found despite the defendant's expression on the
record of satisfaction with counsel because "whether Petitioner was 'satisfied
with . . . defense counsel is not at issue.'" The question of whether counsel's
performance was objectively unreasonable is the issue. Moreover, the question of
satisfaction with counsel was not asked in the context of this specific issue,
thus, the court affords it no weight." If counsel had responded in some way to
the express admission of bias, counsel may have been able to argue a strategy
for the failure to challenge her, but "[t]he question of whether to seat a
biased juror is not a discretionary or strategic decision. The seating of a
biased juror who should have been dismissed for cause requires reversal of the
conviction."
If counsel's decision not to challenge a biased venireperson could constitute
sound trial strategy, then sound trial strategy would include counsel's
decision to waive, in effect, a criminal defendant's right to an impartial jury.
However, if counsel cannot waive a criminal defendant's basic Sixth
Amendment right to trial by jury "without the fully informed and publicly
acknowledged consent of the client," Taylor v. Illinois, 484 U.S. 400, 417 n.
24, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), then counsel cannot so waive a
criminal defendant's basic Sixth Amendment right to trial by an impartial jury.
Indeed, given that the presence of a biased juror, like the presence of a
biased judge, is a "structural defect in the constitution of the trial mechanism"
that defies harmless error analysis, Johnson, 961 F.2d at 756 (quoting
Arizona v. Fulminante, 499 U.S. 279, 309,
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)), to argue sound trial strategy in
support of creating such a structural defect seems brazen at best. We find that
no sound trial strategy could support counsel's effective waiver of Petitioner's
basic Sixth Amendment right to trial by impartial jury.
Prejudice found because the juror had made an
express admission of actual bias with no rehabilitation by counsel or the
court.
1992: Johnson v. Armontrout,
961 F.2d 748 (8th Cir. 1992)
Counsel ineffective for failing to request
removal for cause of four jurors who had previously sat on a jury convicting a
co-defendant for the same crime and had already decided the defendant was guilty
and for failing to inform the defendant of his right to remove such
jurors.
1991: Hollis v. Davis,
941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938
(1992)
Trial counsel's failure to attack systematic
exclusion of blacks from grand jury and petit juries at time of state burglary
trial in 1959 was cause for procedural default which could not be attributed to
petitioner in habeas proceeding.
1989: Gov't of Virgin Islands v. Forte,
865 F.2d 59 (3rd Cir. 1989)
Defense counsel's failure
to object to prosecutor's use of peremptory challenges to excuse white prospective jurors
in prosecution of white male for rape of black female was unreasonable under prevailing
professional standards (Batson pending) and prejudiced defendant's direct appeal since
Batson error had not been reserved.
State Cases
2007: James v. State,,
222 S.W.2d 302 (Mo. App. 2007).
Counsel ineffective in second-degree murder and armed criminal action case for failing to
challenge for cause a venireperson who indicated that she would draw a negative inference
from a defendant’s failure to testify in his own defense. If counsel had objected, the trial
court would have been required to strike the juror. Counsel’s conduct was not explained by
any strategy. Prejudice presumed because the defendant was “tried in violation of his
constitutional right to an impartial jury.”
*State v. Loftin,,
922 A.2d 1210 (N.J. 2007).
Trial and appellate counsel were ineffective in failing to adequately address the presence of
a possibly racially biased juror, who had predetermined guilt before hearing all the evidence,
in the jury panel during the trial although he ultimately served as an alternate and did not
deliberate on findings and a separate jury was empaneled under state law for sentencing. The
juror, who was white and worked at the post office, admitted making comments early in the
trial to other postal workers that he was “going to buy a rope to hang” the defendant, a black
man charged with killing a white man. He denied, however, that the comments were
intended to be racist or that he had already formed an opinion of guilt. Trial counsel sought
to remove the juror, which was denied, but failed to request that the remainder of the jury be
questioned to determine whether this juror had made similar comments to other jurors. The
trial court ultimately ordered that the juror would serve only as an alternate. Appellate
counsel failed to assert error in the trial court’s failure to remove the juror and to assert as
plain error the court’s failure to question the remaining jurors. Under state law, the court
found “a decided racial undertone [in the juror’s comments] that evokes an era of vigilante
and mindless mob justice that reigned during a dark period in American history.” Id. at
1219. Likewise, even without racial bias, the juror violated the court’s instructions not to
discuss the case with others and not to determine guilt prior to deliberations. The court held
that prejudice would be presumed and that “even allowing a non-deliberating juror suspected
of racial bias to sit on a panel will lead to a presumption that other members of the panel may
have been tainted.” Id. at 1222. Thus, the court presumed that the biased juror shared his
views with fellow jurors and, thus, it did not matter that he did not deliberate. Although trial
and appellate counsel’s ineffectiveness was asserted under both the state and federal
constitutions, the court addressed the merits under only the state constitution but still
applying the Strickland standard. Deficient conduct found because the need for the removal
of the predisposed juror and a voir dire of the remaining jurors should have been self-
evident.” Counsel’s conduct was not excused by strategy. Appellate counsel was also
ineffective because failure to assert these issues on appeal deprived the court of the
opportunity to address the issue, which would have required reversal on direct appeal.
2006: *Anderson v. State,
196 S.W.3d 28 (Mo. 2006).
Counsel ineffective in capital case for failing to move to strike, for cause, prospective
juror who, during voir dire, indicated he would vote for death unless the defense could
convince him otherwise. Counsel's failure was not a decision based on trial strategy and
instead occurred because of a note-taking error. Moreover,
No competent defense attorney would intentionally leave someone on the
jury who indicated a strong preference for the death penalty and also stated
that he would require the defense to convince him that death was not
appropriate even though he was aware that the burden of proof remains
with the state. Any strategy that would place someone with such a
predisposition on the jury is wholly unreasonable.
Prejudice established because this was a structural error.
State v. King,
144 P.3d 222 (Utah App. 2006).
Counsel ineffective and attempted forcible sexual abuse case for failing to inform the trial
court of an oversight in individual voir dire of potentially biased jurors. Five jurors
responded to a general question indicating that they might be unable to be fair and
impartial. The court then asked if any jurors or their family or friends had been the victim
of sexual abuse and six additional jurors responded. The court decided to individually
question these eleven jurors but through oversight did not question two of the jurors
responding to the question about prior sexual abuse. Counsel's conduct was deficient in
failing to notice the omission and bring it to the court's attention. Prejudice was
presumed "as a practical matter" because these jurors sat on the trial jury.
2005: State v. Lamere,
112 P.3d 1005 (Mont. 2005)
Counsel in aggravated assault case was ineffective in failing to question a prospective juror on whether she could remain impartial even though her daughter was a paralegal assisting the prosecutor (even in the courtroom during the trial) and someone else in her family was retired from the police force. The juror disclosed this information on her questionnaire but, due to oversight, counsel did not question her about it. When counsel learned of the problem during trial and moved to excuse the juror, the motion was denied. Counsel’s conduct was deficient because the juror’s relationship to her daughter obviously raised legitimate questions about her impartiality. Because errors in jury selection are “structural errors,” prejudice was presumed.
2004: State v. Garza
143
S.W.3d 144 (Tex. Ct. App. 2004) )
Counsel ineffective in aggravated sexual assault case for failing to
challenge a juror for cause or to use a peremptory strike even though
the juror (who became foreman) admitted that he would be biased because
a family member had been the victim of sexual assault and admitted that
he would believe a police officer rather than the defendant simply
because it was a police officer. Counsel admitted that he had no
strategy and failed to challenge the juror only because he was
distracted and simply made a mistake after learning shortly before that
that his wife had been diagnosed with cancer. Even though there might
have been a hypothetical plausible strategy for not challenging the
juror, the record here clearly established no strategy. Prejudice found
because "one improper juror destroys the integrity of the verdict."
Finally, the court rejected the state’s argument that the court should
consider the fact that the defendant was an experienced criminal defense
counsel as a factor in the ineffective assistance claim.
2003: Fortson v. State
587 S.E.2d 39 (Ga. 2003).
Counsel was ineffective in a murder case for using a
peremptory strike on a juror that had already been excused for cause by
the trial court but inexplicably remained on the strike list. Defense
used his entire allotment of peremptory strikes. Because Georgia law
requires automatic reversal when a defendant is required to use a
peremptory strike on a juror that should have been excused for cause,
the court found prejudice under Strickland.
2002: Kirkland v. State
560 S.E.2d 6 (Ga. 2002)
Counsel ineffective in
burglary case for failing to challenge for cause members of the venire
with a business relationship to the corporation that was the victim
of
the burglaries. These jurors were not competent because the corporation
was an interested party under Georgia law. Counsel’s conduct was
deficient because counsel did not know of this law and did not challenge
the jurors, one of whomactually set during the trial. Prejudice
was
implied where the defendant was tried before a biased jury and where
state law finds harmful error when a peremptory must be used to
excuse a
juror that should have been excused for cause. Counsel had used
peremptories to remove five of the disqualified jurors.
*Knese v. State
85 S.W.3d 628 (Mo. 2002)
Counsel ineffective in capital case for failing to read two juror
questionnaires. In preparing for trial counsel reviewed questionnaires
but he did not review those received on the morning of trial, which
included questionnaires from two jurors who were actually seated
(including the foreman). Both questionnaires suggested that the jurors
would automatically vote to impose death after a murder conviction.
Counsel’s conduct was deficient for failing to read the questionnaires
and, at minimum, to voir dire to determine whether the jurors
could serve. Counsel offered no strategic reason for his conduct and
testified that this was the worst
mistake he had ever made and that there was no excuse for it. Counsel
stated that he would have stuck both jurors had he reviewed the
questionnaires. The court conducted no prejudice inquiry because the
court found "[t]his complete failure in jury selection was structural
error" because nothing in the questionnaires indicated a predisposition
to automatically vote guilt or innocence. Judgement was reversed only
as
to the penalty phase.
State v.
Carter
641 N.W.2d 517 (Wis. Ct. App. 2002)
Counsel ineffective in sexual
assault case for failing to adequately voir dire or challenge juror
after juror admitted that he would be
biased due to prior sexual assault of brother-in-law. Prejudice found
because "[a] guilty verdict without twelve impartial jurors renders
the outcome unreliable and fundamentally unfair." Id. at 521 .
1997: State v. Chastain,
947 P.2d 57 (Mont. 1997)
Counsel ineffective in child sex case because
two jurors stated that they had heard of the case and had strong feelings about
it which could affect their ability to be fair and impartial. Nonetheless,
counsel did not conduct additional voir dire, challenge for cause, and
strike.
1996: State v. Williams,
679 So. 2d 275 (Ala. Crim. App. 1996)
Court denied state's petition
for writ of mandamus from trial court's order granting a new trial because counsel was
ineffective in failing to make Batson objection even though a prima facie case of
racial discrimination in jury selection existed. Trial court also found other
conduct to be ineffective but opinion does not discuss these
issues.
Alaniz v. State,
937 S.W.2d 593 (Tex. Ct. App. 1996)
Counsel ineffective in drug case for failing to
correct court's error when court stated on the record that juror #5 was excused
for cause based on statement of inability to be fair and impartial but then
court erroneously excused juror #6 in his place and juror #5 was
empaneled.
1993: State v. Robertson,
630 N.E.2d 422 (Ohio Ct. App. 1993), appeal denied, 628 N.E.2d
1390 (Ohio 1994)
Counsel ineffective for failing to make a timely and specific Batson motion when state challenged three
African-Americans from jury panel leaving only one African-American as an
alternate.
State v. Belcher,
623 N.E.2d 582 (Ohio Ct. App.), appeal denied, 622 N.E.2d 650 (Ohio
1993)
Counsel ineffective for failing to make a timely Batson motion when state removed all three African-
Americans from venire.
1992: State v. McKee,
826 S.W.2d 26 (Mo. Ct. App. 1992)
Counsel ineffective for failing to challenge
two venirepersons who said it would bother them if the defendant did not
testify.
Knight v. State,
839 S.W.2d 505 (Tex. Ct. App. 1992)
Trial counsel in burglary case ineffective for
failing to challenge 10 jurors who expressed a bias or prejudice including: a
burglary conviction should always carry maximum sentence, if convicted should
receive death penalty, all people indicted are guilty, and defendant's failure
to testify would be held against him. Two of these jurors were impaneled so
prejudice presumed.
Nelson v. State,
832 S.W.2d 762 (Tex. Ct. App. 1992)
Counsel ineffective for failing to challenge
jurors who stated that they presumed guilt if a defendant was charged. Three of
these jurors were impaneled.
1991: Ex Parte Yelder,
575 So. 2d 137 (Ala. 1991)
Trial counsel ineffective for failing to make
Batson objection when the state used peremptories to strike 17 of 18 black jurors. Court
held that prejudice would presumed where a prima facie case of purposeful discrimination
exists and trial counsel fails to make Batson
objection.
1988: Presley v. State,
750 S.W.2d 602 (Mo. Ct. App.), cert. denied, 488 U.S. 975
(1988)
Counsel ineffective for failing to challenge
for cause a venireman who admitted bias against defendant. Prejudice
presumed.