Wednesday, September 5, 2018
Juror’s ‘Novel’ Pledge to Judge Did Not Negate Actual Bias
Judge Was Required to Dismiss Prospective Juror in Identity Theft Case Despite Her Vow to Advise Court Know if Her Experience as a Victim of That Crime Was Affecting Her, Opinion Says
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a judge was obliged to dismiss a prospective juror for actual bias where she never unequivocally said she could put her aside her experience as a crime, saying only that she would “want” to do so, with the panel finding inadequate her promise to let the judge during the trial know if her experience was impeding her ability to be fair.
That promise, Circuit Judge Michelle T. Friedland remarked at oral argument in Pasadena on July 10, renders the case “novel.”
The opinion was written by Third U.S. Circuit Judge D. Michael Fisher, sitting by designation. It reverses the conviction of Koren Kechedzian, who was found guilty of possession of unauthorized access devices and aggravated identity theft, and remands the case for a new trial.
Questioning by Judge
During voir dire, U.S. District Judge Philip S. Gutierrez of the Central District of California questioned the prospective juror—identified as “Juror Rose” and as “Juror #3”—after she revealed that she had been a victim of identity theft. He asked her twice whether she would be able to put aside her experiences and be fair and impartial, to which she replied, each time, that she was unsure but would try.
Gutierrez then queried:
“But if it turns out you’re going through this process and you feel you can’t—it’s not working, would you tell us?”
“Yes, I would,” Rose affirmed.
No Commitment Expressed
Fisher noted that even when a prospective juror admits actual bias, the judge has discretion to credit a later promise that he or she will put aside that bias. But here, he said, Rose’s indications that she would try to set aside her bias had been equivocal, not a clear commitment.
The jurist wrote:
“Juror # 3 never affirmatively stated that she could be impartial. In fact, Juror # 3 was asked three times…if she could be impartial. And each time, she replied equivocally: (1) ‘I might be able to put that aside’; (2) ‘I would want to put my personal stuff aside, but I honestly don’t know if I could’; and (3) ‘I would try to be fair.’ Likewise, we reject any argument that Juror # 3’s final response—’I would try to be fair’—is an unequivocal statement of impartiality.”
Arrangement Not Curative
“[T]here was nothing particularly curative about this arrangement (in which Juror # 3 was to tell the judge later if she felt biased). Juror # 3 noted she would let the court know if she was feeling that ‘it’ was ‘not working.’ What this exactly means—and when and how she would communicate this to the judge—is largely unclear. And this arrangement provided no assurance that Juror # 3 would—or could—actually put aside her prejudices, let alone speak up once trial began.”
“Ultimately, voir dire is one of the ‘important mechanism[s] for ensuring impartiality’…; this type of arrangement is an unacceptable substitute.”
At oral argument, one of Kechedzian’s lawyers, Anya J. Goldstein of the downtown Los Angeles law firm of Summa LLP, said that keeping Rose on the jury, pursuant to a pledge exacted from her, created uncertainty. She explained:
“It could be that her bias kicked in, that she wanted to put Mr. Kechedzian away. We don’t know.”
The case is USA v. Kechedzian, No. 16-50326.
The defendant was represented before the panel by, in addition to Goldstein, Jennifer L. Williams, also of Summa LLP. Assistant U.S. Attorney Scott Paetty of the Central District pf California argued for the government.
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