WOLF, District Judge.
The attached version of the October 20, 2011 Memorandum and Order on Jury Claim is being filed for the public record. In order to strike the appropriate balance between personal privacy interests, see In re Globe Newspaper Company, 920 F.2d 88, 95 (1st Cir.1990), and transparency concerning the reasons for judicial decisions, it replaces the names of jurors and third-parties with initials, and includes minor redactions concerning particularly sensitive information regarding third-parties. An unredacted form of the Memorandum and Order on Jury Claim that includes the names of the jurors and third-parties is being filed under seal and provided to the parties.
On July 24, 2001, Gary Lee Sampson murdered Philip McCloskey and attempted to steal his car. On July 27, 2001, Sampson murdered Jonathan Rizzo and stole his car. Then, on July 30, 2001, in New Hampshire, Sampson murdered Robert Whitney and later took his car as well. On July 31, 2001, William Gregory picked up Sampson who was hitchhiking in Vermont. Gregory escaped Sampson's attack on him. Soon after, Sampson called 911 and surrendered to the Vermont State Police. Sampson quickly confessed to the murders of McCloskey, Rizzo, and Whitney.
In October, 2001, Sampson was charged in this federal court with two counts of carjacking resulting in the deaths of McCloskey and Rizzo, respectively. As permitted but not required by the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 et seq., the government decided to seek the death penalty.
Sampson pled guilty to the charges against him. Pursuant to the legal requirements established by the Supreme Court and codified in the Federal Death Penalty Act, a trial was nevertheless required to permit a jury to determine whether Sampson should be executed.
Under the Sixth Amendment, every defendant in a criminal case has a constitutional right to be tried by an impartial jury. U.S. Const. Amend. VI. An impartial jury is a "touchstone of a fair trial" and has been defined as a "jury capable and willing to decide the case solely on the evidence before it." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (internal quotation omitted). Therefore, to qualify as an impartial juror an individual must not have views or personal experiences that will prevent or substantially impair his or her ability to decide a matter based solely on the evidence.
In the conventional criminal case in which the jury is asked to decide unanimously only whether guilt has been proven beyond a reasonable doubt, the existence of even a single partial person on the jury requires a new trial. In a Federal Death Penalty Act case it is particularly important that each and every juror be able to decide the case based solely on the evidence and, therefore, be impartial. The Supreme Court has held that: "the penalty of death is qualitatively different from a sentence of imprisonment, however
At trial, the court and the parties made an extensive effort to assure that each and every juror in this case would be able to decide whether Sampson should be sentenced to death based solely on the evidence. Hundreds of potential jurors were required to answer in writing, under oath, seventy-seven questions designed to elicit information concerning any possible bias or prejudice that the potential juror recognized and was willing to reveal, and also to elicit information concerning life experiences that might subconsciously injure an individual's ability to decide Sampson's case based solely on the evidence. Many potential jurors were excused based on their written responses alone. Many other jurors were questioned individually, again under oath, to determine whether they could decide whether Sampson should live or die based solely on the evidence and were, therefore, eligible to serve as jurors in his case. The jury selection process lasted seventeen days.
The court recognized that the written and oral questioning would involve matters a potential juror might regard as private and sensitive. Therefore, the potential jurors were told that, upon request, the questioning and their responses on such sensitive subjects would not be made part of the public record. They were also repeatedly told, however, that it was essential that they answer every question honestly and accurately.
During weeks of individual questioning, potential jurors were excused for cause for a range of conventional reasons. Some were excused because of pretrial exposure to information about the case or because of the existence of attitudes they acknowledged that raised serious questions about their ability to be impartial. Other potential jurors were excused for cause because they had emotional life experiences that were comparable to matters that would be presented in Sampson's case and created a serious risk that they would not be able to decide whether the death penalty should be imposed based solely on the evidence. In addition, potential jurors were excused when it was discovered that they had responded to written or oral questions dishonestly.
Eventually, twelve deliberating jurors, including C, and six alternates were empaneled. During the trial, two jurors were excused when it was discovered they had answered voir dire questions dishonestly.
At trial, the jurors heard evidence of, among other things: the manner in which Sampson murdered McCloskey, Rizzo, and Whitney, and the fear his victims undoubtedly experienced; Sampson's threats to shoot female bank tellers in the course of robberies; Sampson's substance abuse and
The court subsequently denied motions to question jurors about their verdict and for a new trial. In January, 2004, it sentenced Sampson to be executed. The Court of Appeals for the First Circuit affirmed the death sentence. The Supreme Court declined to review the case.
As required by the Federal Death Penalty Act, this court then appointed new counsel for post-conviction proceedings. In May, 2009, Sampson filed a motion for a new trial pursuant to 28 U.S.C. § 2255 ("the § 2255 Motion"), alleging that his constitutional rights had been violated. Among other things, Sampson alleged that he had been deprived of his right to have his sentence decided by an impartial jury. This contention was based on evidence developed by Sampson's new counsel that three jurors, including C, had answered voir dire questions inaccurately. Sampson also argued that their inaccurate answers deprived him of his right to exercise his peremptory challenges on a properly informed basis.
Because material facts were in dispute, in November, 2010, the court conducted a hearing in which the three jurors were required to testify concerning their inaccurate responses to voir dire questions. The court finds that two of these jurors made unintentional errors in responding to voir dire questions and that Sampson is not entitled to a new trial because of those errors.
However, as explained in detail in this Memorandum, the court also finds that C intentionally and repeatedly answered a series of questions dishonestly in an effort to avoid disclosing or discussing painful experiences she had endured concerning her daughter J and her former husband P. Her dishonesty began when she filled out her questionnaire in September, 2003, continued when she returned for individual voir dire in October, 2003, and was repeated when she was required to testify in these § 2255 proceedings.
More specifically, C intentionally lied during the jury selection process in response to questions that should have elicited the facts that: in 2000 her husband P had a rifle or shotgun and threatened to shoot her; C had feared that P would kill her; as a result, C obtained an Abuse Prevention Order against P; P was later arrested in her presence and prosecuted for violating that Order; C's marriage to P ended because of his substance abuse; J also had a drug problem; and J's drug abuse resulted in her serving time in prison, where C visited her. As information concerning these experiences involving J and P emerged slowly in the course of three hearings in these § 2255 proceedings, C repeatedly characterized each of those experiences as "horrible" and a "nightmare." She often cried when required to think about these matters. She was frequently unable to discuss them candidly or coherently.
In McDonough, the Supreme Court described the circumstances in which inaccurate responses to voir dire questions would deny a party his right to an impartial jury and, therefore, require a new trial. See 464 U.S. at 556, 104 S.Ct. 845. It stated:
Id.
Accordingly, for the reasons explained in detail in § III of this Memorandum, to obtain relief under McDonough, Sampson was required to prove by a preponderance of the evidence that: (1) C was asked a question during voir dire that should have elicited particular information; (2) the question was material; (3) C's response was dishonest, meaning deliberately false, rather than the result of a good faith misunderstanding or mistake; (4) her motive for answering dishonestly relates to her ability to decide the case solely on the evidence and, therefore, calls her impartiality into question; and (5) the concealed information, when considered along with the motive for concealment, the manner of its discovery, and C's demeanor when required to discuss J and P, would have required or resulted in her excusal for cause for either actual bias, implied bias, or what the Second Circuit characterizes as "inferable bias."
The court finds that Sampson has satisfied his burden of proving every element of the McDonough test. C did not falsely answer any question as part of a conscious effort to become a juror and punish Sampson for the abuse inflicted on her by P. However, it has been proven that during the jury selection process C dishonestly answered all material questions that should have revealed important events concerning J and P because C was deeply ashamed, and became distraught when required to think about them. She repeatedly lied because the events concerning J and P were too painful for her to disclose or discuss. C's decision to lie rather than reveal these events demonstrates the tremendous emotional impact that they had on C at the time of the voir dire and calls her impartiality into question.
The matters about which C repeatedly lied under oath were comparable to matters presented by the evidence in Sampson's case. C dishonestly did not disclose prior to the empanelment that, among other things, she had been threatened with being shot and killed, had ended a marriage due to her husband's substance abuse, and felt deeply ashamed of her daughter's criminal activity, drug abuse, and incarceration. If these matters had been revealed, the court would have found that there was a high risk that after being exposed to the evidence at trial C's decision on whether Sampson should be executed would be influenced by her own life experiences and, therefore, a high risk that she would be substantially impaired in her ability to decide whether Sampson should be executed based solely on the evidence. Like other potential jurors, C would have been excused for cause solely for that reason. The decision to excuse her for cause would have been reinforced by her demonstrated dishonesty, which was alone a reason that other potential jurors were excused for cause.
As the requirements of McDonough have been satisfied, the court is compelled to vacate Sampson's death sentence and grant him a new trial to determine his sentence. In essence, despite dedicated efforts by the parties and the court to assure that the trial would be fair and the verdict final, it has now been proven that perjury by a juror resulted in a violation of Sampson's constitutional right to have the issue of whether he should live or die decided by twelve women and men who were each capable of deciding that most consequential question impartially.
As the court said in sentencing Sampson in 2004, his crimes were "despicable." United States v. Sampson, 300 F.Supp.2d 275,
However, in sentencing Sampson to die, the court also reasoned that "there is a difference between a murder and an execution. That difference is the fair process by which a jury of citizens from this community [] decided that [Sampson's] death is justified." Id. at 277. It has now been proven that Sampson did not receive the fair process that the Constitution guarantees every man no matter how despicable his conduct. Therefore, Sampson must be given a new trial to determine his sentence.
On October 24, 2001, a federal grand jury charged Sampson with two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119(3). The charges arose out of the killings of McCloskey and Rizzo by Sampson in Massachusetts in July, 2001. See United States v. Sampson, 335 F.Supp.2d 166, 174-75 (D.Mass.2004). Sampson also killed Whitney in New Hampshire and carjacked Gregory in Vermont in July, 2001. While not charged in this case, those crimes were considered nonstatutory aggravating factors for sentencing purposes. Although Sampson subsequently pled guilty to both counts, his sentence was determined in a jury trial conducted pursuant to 18 U.S.C. § 3593.
To select a jury, the court first required prospective jurors to respond to a written questionnaire. The prospective jurors not immediately excused for cause based on their responses to the questionnaire were subject to individual voir dire by the court and the parties. After additional prospective jurors were excused for cause as a result of individual voir dire, the parties exercised peremptory challenges with respect to the remainder. The court empaneled a jury of twelve deliberating jurors and six alternates. Among the twelve deliberating jurors were C,
Following trial, the jury decided that the death penalty should be imposed for each of Sampson's offenses. The court sentenced Sampson to death on both counts on January 29, 2004. See Sampson, 300 F.Supp.2d at 276. The First Circuit affirmed the death sentences in May, 2007. See United States v. Sampson, 486 F.3d 13, 52 (1st Cir.), reh'g and reh'g en banc denied, 497 F.3d 55 (1st Cir.2007). Sampson unsuccessfully sought review by the United States Supreme Court, which denied his petition for a writ of certiorari on May 12, 2008. See Sampson v. United States, 553 U.S. 1035, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008).
On June 25, 2008, the court appointed new counsel for postconviction proceedings as required by 18 U.S.C. § 3599. See June 25, 2008 Order at 8. The court subsequently denied without prejudice Sampson's request for discovery prior to the filing of the instant § 2255 Motion. See May 6, 2009 Order at 2. On May 11, 2009, Sampson filed his § 2255 Motion. The government filed a Request for Summary
Claim IV of the Amended § 2255 Motion alleges that C, D, and G provided inaccurate answers to voir dire questions, beginning with inaccurate answers to questions on their respective questionnaires. Sampson claims that he is entitled to relief: (1) under McDonough, supra; (2) because these three jurors were actually or impliedly biased; and (3) because Sampson was prevented from intelligently exercising his peremptory challenges.
For the reasons stated in a session closed to the public on August 31, 2010, the court denied summary dismissal of this claim and held three closed evidentiary hearings.
The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury. . . ." U.S. Const. Amend. VI. "One touchstone of a fair trial is an impartial trier of fact-`a jury capable and willing to decide the case solely on the evidence before it.'" McDonough, 464 U.S. at 554, 104 S.Ct. 845(quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). In the conventional criminal case in which the jury is asked only whether guilt has been proven beyond a reasonable doubt, "[t]he bias or prejudice of even a single juror would violate [a defendant's] right to a fair trial." Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.1998) (en banc); see also United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir.2000).
Consistent with these generally applicable principles, it has long been "well settled that the Sixth . . . Amendment[] guarantee[s] a defendant on trial for his life the right to an impartial jury." Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In a Federal Death Penalty Act case it is particularly important that each and every juror be impartial. As indicated earlier, the Supreme Court has held that:
Woodson, 428 U.S. at 305, 96 S.Ct. 2978. To implement this principle, the Federal Death Penalty Act provides that if even one juror does not find the death penalty to be justified the defendant may not be executed, and the court must impose a lesser sentence. See 18 U.S.C. §§ 3593, 3594; Jones, 527 U.S. at 380-81, 119 S.Ct. 2090; see also Sampson, 335 F.Supp.2d at 240-41 & n. 43. In essence, a single juror has the power to decide whether the defendant will live rather than die.
It is essential that every juror be willing and able to make that decision based solely on the evidence. "If even one juror [who is not impartial] is empaneled" and the death sentence is imposed, "the [government] is disentitled to execute the sentence." Morgan, 504 U.S. at 729, 112 S.Ct. 2222; see also United States v. Martinez-Salazar, 528 U.S. 304, 316-17, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). Therefore, a defendant is deprived of the right to an impartial jury and entitled to a new trial when a juror who is not impartial participates in deciding a case, regardless of whether or not the verdict would have been different. See Dyer, 151 F.3d at 973 n. 2 ("The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice."); United States v. Carpa, 271 F.3d 962, 967 (11th Cir.2001) ("If a court determines there was actual bias, the juror's inclusion in the petit jury is never harmless error.").
An impartial jury, to which every defendant is entitled, is one in which every juror is "`capable and willing to decide the case solely on the evidence before [him].'" McDonough, 464 U.S. at 554, 104 S.Ct. 845 (quoting Smith, 455 U.S. at 217, 102 S.Ct. 940); see also United States v. Villar, 586 F.3d 76, 84 (1st Cir.2009). Jurors are regularly instructed that one of their duties is to decide the case based solely on the evidence. See United States v. Thomas, 116 F.3d 606, 616-17 n. 10 (2d Cir. 1997). However, a juror is not impartial if his experiences, opinions, predispositions, biases, prejudices, interests, or relationships "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" See Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); see also Cravens v. Smith, 610 F.3d 1019, 1031 (8th Cir.2010) (juror properly excused for cause after expressing "gut feeling" that he would disfavor insurance company); United States v. Torres, 128 F.3d 38, 47-48 (2d Cir.1997) (juror properly excused for cause who had structured financial transactions, in case involving evidence of structuring of cash deposits); Hunley v. Godinez, 975 F.2d 316, 319 (7th Cir.1992) (per curiam)(jurors in case charging burglary and murder should have been excused after they became victims of burglary during trial).
When a judge makes decisions about whether to dismiss a juror for cause during voir dire, or when a litigant argues after trial that he was denied his right to an impartial jury because of a juror's bias, several types of bias are recognized and relevant: actual bias, implied bias, and inferable bias.
"Actual bias is `bias in fact.'" Torres, 128 F.3d at 43 (quoting United States
With regard to actual bias, "[a] juror is found by the judge to be partial either because the juror admits partiality. . . or the judge finds actual partiality based upon the juror's voir dire answers." Torres, 128 F.3d at 43; see also Hughes v. United States, 258 F.3d 453, 456 (6th Cir. 2001). Whether a juror is actually biased is a question of fact determined by the trial judge. See Dyer, 151 F.3d at 973 (citing Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)); Torres, 128 F.3d at 43 (citing Wood, 299 U.S. at 133, 57 S.Ct. 177); Dall v. Coffin, 970 F.2d 964, 970-71 (1st Cir. 1992)(Wolf, D.J., sitting by designation); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir.1992).
A juror who is found to be actually biased must be excused for cause. See United States v. Rhodes, 177 F.3d 963, 965 (11th Cir.1999); Morgan, 504 U.S. at 729, 112 S.Ct. 2222. Therefore, a moving party is entitled to a new trial if a judge failed to excuse an actually biased juror based on information available at the time of trial or if it is later discovered that a juror who was actually biased participated in rendering a verdict. See Dyer, 151 F.3d at 972 n. 2; see also McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring)(recognizing actual bias as a basis for relief). However, absent an admission by the juror, actual bias is difficult to prove, in part because the juror may have an interest in concealing it and in part because the juror may not even be consciously aware of it. See Smith, 455 U.S. at 221-22, 102 S.Ct. 940 (O'Connor, J., concurring). This difficulty is magnified when the issue is addressed many years after trial. See Dyer, 151 F.3d at 981.
The difficulty of determining actual bias has led courts to imply bias when "certain circumstances create too great a risk of affecting a juror's decisionmaking process, even if the juror is not, consciously, fully aware of the impact." Fields v. Brown, 503 F.3d 755, 806 (9th Cir.2007)(Berzon, J., dissenting). As explained by the Supreme Court:
Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 53 L.Ed. 465 (1909); see McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring)(recognizing implied bias as a basis for relief); Smith, 455 U.S. at 221-22, 102 S.Ct. 940 (O'Connor, J., concurring) (same); Amirault, 968 F.2d at 1406 (same); see also Conaway v. Polk, 453 F.3d 567, 587 n. 22 (4th Cir.2006) (collecting cases demonstrating continuing viability of the principle).
Implied bias, which is sometimes called "presumed bias," is determined
Bias is implied in "`extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.'" Sanders v. Norris, 529 F.3d 787, 792 (8th Cir.2008)(quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988)); see also Fields, 503 F.3d at 770. "Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction." Smith, 455 U.S. at 222, 102 S.Ct. 940 (O'Connor, J., concurring); see also United States v. Brazelton, 557 F.3d 750, 753-54 (7th Cir.2009)(stating that courts must imply bias if the juror is related to one of the principals in the case, regardless of whether the juror is objective in fact); cf. Treesh v. Bagley, 612 F.3d 424, 437-38 (6th Cir. 2010) (holding that bias should not be implied where a juror had taken a course taught by the prosecutor).
In some circumstances, bias is also implied "when there are similarities between the personal experiences of the juror and the issues being litigated." Skaggs v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir.1998). In criminal trials, for example, bias has been implied when the juror was himself, at the time of trial, involved in events that shared significant similarities with the alleged criminal conduct at issue in the case. See Hunley, 975 F.2d at 319-20 (holding, in a case charging murder in the course of a burglary, that bias should be implied where two jurors were the victims of similar burglaries during deliberations); Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir.1991)(holding, in murder case in which the defendant presented a defense based on having suffered domestic violence at the hands of the victim, that a juror living in similarly abusive circumstances at the time of trial, and who gave dishonest answers regarding that subject at voir dire, was impliedly biased); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979) (per curiam) (implying bias where, in a trial for participation in a heroin distribution conspiracy, a juror failed to disclose at voir dire that he had two sons who were serving long prison sentences for heroin-related crimes); cf. Fields, 503 F.3d at 774-75 (holding, in a case involving allegations of robbery, rape and murder, in which the juror answered questions honestly at voir dire, that bias should not be implied where a juror's wife had been beaten, raped and robbed two years prior to voir dire); United States v. Powell, 226 F.3d 1181, 1186, 1189 (10th Cir.2000)(holding, in case involving charge of kidnaping for sexual gratification, that bias should not be implied where a juror honestly disclosed at voir dire that she had a daughter who had been raped ten years earlier); Torres, 128 F.3d at 46 (holding, in case involving structuring of financial transactions, that bias should not be implied where juror honestly disclosed in response to voir dire question that the juror
In addition, bias may be implied "where repeated lies in voir dire imply that the juror concealed material facts in order to secure a spot on the particular jury." Fields, 503 F.3d at 770 (citing Dyer, 151 F.3d at 982); see also Green v. White, 232 F.3d 671, 677-78 (9th Cir.2000) (holding that a juror was impliedly biased where he "lied twice to get a seat on the jury," provided misleading, contradictory, and false responses when questioned about those lies, and engaged in behavior that brought his impartiality into question). As the Ninth Circuit explained in Dyer, where implied bias was found because a juror repeatedly lied to get on the jury, "[a] juror . . . who lies materially and repeatedly in response to legitimate inquiries about her background introduces destructive uncertainties into the process." Dyer, 151 F.3d at 983; see also Green, 232 F.3d at 676 (holding that a juror's "pattern of lies, inappropriate behavior, and attempts to cover up his behavior introduced `destructive uncertainties' into the fact-finding process, and, under Dyer, we must presume bias under these circumstances").
Even when prospective jurors are dishonest for reasons other than a desire to secure a seat on the jury, dishonest answers to voir dire questions indicate that a juror is unwilling or unable "to apply the law as instructed by the court to the evidence presented by the parties" and, therefore, are indicative of a lack of impartiality because a fundamental instruction in every federal case is that a juror must render a verdict "solely on the evidence presented at trial." Thomas, 116 F.3d at 617 & n. 10 (citing the Federal Judicial Center's Benchbook for U.S. District Court Judges). Therefore, dishonest answers are a factor that can contribute to a finding of implied bias. See Skaggs, 164 F.3d at 517.
In Torres, the defendants argued that a judge had improperly dismissed a juror who was not shown to have an actual or implied bias, and that the judge's improper dismissal caused the government to gain an additional peremptory challenge. See Torres, 128 F.3d at 42. The defendants were charged with conspiring to violate federal money laundering laws and, at voir dire, the trial judge excused for cause a potential juror who recognized that she herself had at one point engaged in structuring cash transactions. Id. at 41-42. Writing for the Second Circuit, Judge Guido Calabresi rejected the defendants' claim, finding that "there exist a few circumstances that involve no showing of actual bias, and that fall outside of the implied bias category, where a court may, nevertheless, properly decide to excuse a juror. We call this third category `inferable bias.'" Id. at 46-47.
"Inferable" or "inferred" bias exists "`when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.'" Greer, 285 F.3d at 171 (quoting Torres, 128 F.3d at
Torres, 128 F.3d at 47; see also Greer, 285 F.3d at 171; United States v. Quinones, 511 F.3d 289, 301 (2d Cir.2007).
Although declining to define the "precise scope of a trial judge's discretion to infer bias," Judge Calabresi further explained:
Torres, 128 F.3d at 47 (emphasis added). Therefore, the category of inferable bias, one courts have long "implicitly assumed to exist," id. at 43, permits a court in its discretion to dismiss a juror because of an inference that the juror will not be able to decide the case solely on the evidence, even though the juror has not been found to be actually biased and does not satisfy the requirements of implied bias.
Such discretion on the part of trial judges deciding matters of juror bias both during trial and after it has also been recognized by the First Circuit. See United States v. Rowe, 144 F.3d 15, 20 (1st Cir.1998) ("[W]e will not intervene unless the trial court's denial of a cause-based challenge to a juror constitutes a `clear
Voir dire examination is intended to assure that every juror is both willing and able to be impartial. See McDonough, 464 U.S. at 554, 104 S.Ct. 845. Voir dire protects the right to an impartial jury "by exposing possible biases, both known and unknown, on the part of potential jurors." Id.; see also Wainwright, 469 U.S. at 423, 105 S.Ct. 844 ("the quest is for jurors who will conscientiously apply the law and find the facts"); Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981)("Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.").
It can be challenging, however, to determine whether a juror is capable of being impartial in a particular case. See Smith, 455 U.S. at 221-22, 102 S.Ct. 940 (O'Connor, J., concurring); Crawford, 212 U.S. at 196, 29 S.Ct. 260; Fields, 503 F.3d at 806 (Berzon, J., dissenting). As explained earlier, similarities between the pre-trial experiences of the juror and matters being litigated raise concerns about whether the juror can decide the case solely on the evidence, uninfluenced by his extrajudicial experiences. See Skaggs, 164 F.3d at 517; Lowe, 145 F.3d at 48-49; Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir.1996). These concerns arise because some cases involving circumstances similar to a juror's own experiences create "the `potential for substantial emotional involvement'" adversely affecting impartiality. Eubanks, 591 F.2d at 517 (quoting United States v. Allsup, 566 F.2d 68, 71-72 (9th Cir.1977)).
"There is no precise formula to guide judges in juror-qualification matters." Sampson, 486 F.3d at 41. Rather, a trial judge must exercise judgment and discretion in deciding whether a juror should be excused for cause. See Lowe, 145 F.3d at 49; Gonzalez-Soberal, 109 F.3d at 69-70. A court's assessment of a juror's demeanor in discussing those areas of potential bias plays "an important part" in a judge's determination of whether a juror is impartial or should be excused for cause. See Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). For example, in a case involving alleged interstate transportation for illegal sexual activity, the First Circuit held that the trial judge properly excused for cause several jurors who had experience with sexual abuse, even though they asserted that they could be impartial, because "the judge did not believe [them] after assessing their demeanor." Lowe, 145 F.3d at 49. The court also found, however, that the trial judge properly declined to excuse for cause two other jurors who had experience with sexual abuse, relying on their demeanor and noting with regard to one of them, "`[u]nlike the . . . two other women who were just in front of me who appeared so visibly upset, she didn't. She seemed to be able to put it aside, she said she'd be fair and impartial.'" Id. (quoting trial court); see also United States v. Ploof, 464 F.2d 116,
Deciding whether to excuse a juror for cause necessarily requires a prediction, in part because even a well-intentioned juror at voir dire does not then know much in advance about the nature of the evidence at trial. A judge must decide whether a juror who claims to be impartial at voir dire, and who the judge may not find to be actually or impliedly biased at that time, will in fact become impaired during the course of the trial because exposure to the evidence will dredge up in the juror's mind memories of disturbing events and associated emotional responses. See Lowe, 145 F.3d at 49. The need to make such a prediction is one of the reasons that "`[t]here are few aspects of a jury trial where [the First Circuit] would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause.'" Id. (quoting Gonzalez-Soberal, 109 F.3d at 69-70).
At the same time, with regard to decisions being made during the jury selection process, "an impartial jury is so fundamental to the Sixth Amendment right to a fair trial, [that] `[d]oubts regarding bias must be resolved against the juror.'" United States v. Mitchell, 568 F.3d 1147, 1154 (9th Cir.2009) (Thomas, J., dissenting)(quoting Gonzalez, 214 F.3d at 1114). Therefore, "in spite of [the] deferential standard of review" applied to trial judges' rulings on challenges for cause, Judge Calabresi again writing for the Second Circuit found that a district court had abused its discretion and committed reversible error in denying a challenge for cause of a juror whose answers to voir dire questions revealed actual bias. See United States v. Nelson, 277 F.3d 164, 202 (2d Cir.2002). At voir dire, the juror in that case repeatedly expressed doubt about his ability to remain impartial, and expressed personal interest in events affecting the Jewish community and in the specific crime at issue in the case. See id. at 201-02; see also United States v. Nell, 526 F.2d 1223, 1230 (5th Cir.1976) (reversal warranted where trial judge failed to explore potential bias of juror who belonged to rival union and knew defendant in case charging embezzlement of union funds).
Where a judge's questions on voir dire do not elicit relevant information about a juror's bias, a juror may be empaneled whose ability to decide a question solely on the evidence is later placed into question. There are generally two reasons why voir dire might not have revealed relevant information. First, in what are sometimes referred to as "non-disclosure cases," jurors are not asked any questions during voir dire that should have elicited the information. See, e.g., Crowley, 303 F.3d at 407 (describing "non-disclosure" standard); Dall, 970 F.2d at 969-70 (referencing a nondisclosure standard and stating that "jurors cannot be faulted for failing to disclose information for which they were never asked"); United States v. Aponte-Suarez, 905 F.2d 483, 492 (1st Cir.1990)("Jurors cannot be faulted for failing to disclose . . . since they were never asked during the course of voir dire to make such a disclosure."). Second, in what are sometimes referred to as "inaccurate answer cases," jurors do not provide relevant information because they give inaccurate or incomplete answers to the questions that should have elicited it. See,
In non-disclosure cases, a party claiming his right to an impartial jury has been violated can obtain a new trial only by proving actual or implied bias. See Crowley, 303 F.3d at 407-08; Dall, 970 F.2d at 969-70; Aponte-Suarez, 905 F.2d at 492. Because non-disclosure cases do not involve juror dishonesty or fault on the part of the juror, see id., they do not raise the substantial concerns that exist in cases where jurors are deliberately dishonest on voir dire. See Dyer, 151 F.3d at 982-83 (juror's repeated lies during voir dire cast doubt on process and supported finding of implied bias requiring new trial). Therefore, a litigant claiming the denial of the right to an impartial jury in a non-disclosure case must prove that a juror was actually biased or that the facts are such that bias is to be implied. See Aponte-Suarez, 905 F.2d at 492. Such a litigant cannot prevail under the additional test provided by McDonough, which grants relief in cases involving dishonest answers provided by jurors who would have been dismissed for cause if relevant information had been received in response to questions asked during voir dire.
Where a juror has provided an incorrect answer to a question that should have revealed information relevant to a determination of juror bias, a party claiming he was denied an impartial jury may obtain relief by showing actual bias or implied bias, or by satisfying the test articulated in McDonough. As explained below, the McDonough test provides a separate means of relief, and does not require a showing of actual or implied bias. See 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring); Amirault, 968 F.2d at 1405-06 & n. 2; Dall, 970 F.2d at 970.
Prior to McDonough, the traditional means of obtaining post-trial relief based on a juror's inaccurate answers during voir dire were the same as those for obtaining such relief as a result of a juror's non-disclosure of information about which the juror was not asked during voir dire. See Skaggs, 164 F.3d at 516 ("Before the McDonough test was adopted by the Supreme Court, litigants alleging juror [partiality] had the opportunity to prove actual or implied bias on the part of a juror after a verdict was entered."). The "normal avenue of relief available to a party . . . asserting that he did not have the benefit of an impartial jury" was the demonstration that a juror was actually biased, or, that circumstances were such that bias had to be implied. See McDonough, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, J., concurring); see also Smith, 455 U.S. at 215, 102 S.Ct. 940 (remedy for allegations of juror partiality is opportunity to prove actual bias); id. at 221-22, 102 S.Ct. 940 (O'Connor, J., concurring)(asserting that implied bias remained viable form of relief in juror bias claims); United States v. Fulks, 454 F.3d 410, 432 (4th Cir.2006);
McDonough was a product liability case involving a child who was injured in a lawnmower accident. See 464 U.S. at 549, 104 S.Ct. 845. The court of appeals ordered a new trial because one juror who had a son who had been hurt by the explosion of a truck tire did not respond to a voir dire question asking whether any prospective jurors or their immediate family members had ever sustained severe injury in an accident. Id. at 549-50, 104 S.Ct. 845. The juror's failure to respond affirmatively was assumed to have been the result of an honest interpretation of the question by the juror. Id. at 555, 104 S.Ct. 845.
The Supreme Court rejected the view that a mistaken, but honest response to a voir dire question was by itself grounds for a new trial. Id. Instead the Court defined the key inquiry as whether "the juror's failure to disclose denied respondents their right to an impartial jury." Id. at 549, 104 S.Ct. 845; see also id. at 556, 104 S.Ct. 845 (Blackmun, J., concurring)("I agree with the Court that the proper inquiry in this case is whether the defendant had the benefit of an impartial trier of fact.").
This framing of the relevant question was based on harmless error principles, which require a court to exercise judgment instead of ordering "automatic reversal for `error,'" and to "ignore errors that do not affect the essential fairness of the trial." Id. at 553, 104 S.Ct. 845 (citing Kotteakos v. United States, 328 U.S. 750, 759-60, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The Supreme Court reasoned that "`[a litigant] is entitled to a fair trial but not a perfect one,'" and that "the important end of finality" would be ill served if the court were to "invalidate the result of a three week trial" in order to recreate the voir dire process because of a mistaken, but honest response to a question. Id. at 553, 555, 104 S.Ct. 845 (quoting Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)).
Applying these principles, the Court in McDonough then described circumstances in which inaccurate responses to voir dire questions would deny a party his right to an impartial jury and, therefore, affect the essential fairness of the trial, stating:
Id. at 556, 104 S.Ct. 845.
As explained below, this test requires a party seeking relief under McDonough to prove by a preponderance of evidence admissible under the Federal Rules of Evidence
As explained below, the McDonough test provides an additional means for a defendant to demonstrate that he was denied a right to an impartial jury, distinct from the "normal avenue of relief" available through a claim of actual or implied bias. See Fitzgerald v. Greene, 150 F.3d 357, 363 (4th Cir.1998) (quoting McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring)); Amirault, 968 F.2d at 1405-06 & n. 2. In providing this additional form of relief, the McDonough test recognizes that inaccurate answers cast doubt on the efficacy of the voir dire process and the integrity of the trial in a way in which simple non-disclosure of unsolicited information does not. See 464 U.S. at 554, 104 S.Ct. 845. The test further recognizes the unique connection between willfully dishonest answers and the likely partiality of a potential juror, see id. at 556, 104 S.Ct. 845 (Blackmun, J., concurring), and the principle that convictions should not be overturned unless an error is one that affects the fundamental fairness of the trial by denying the defendant the right to an impartial jury, see id. at 553-54, 104 S.Ct. 845.
The first prong of the McDonough test requires that a question soliciting the relevant information have been asked of the juror during voir dire, provoking an inaccurate answer. See 464 U.S. at 556, 104 S.Ct. 845. This prong recognizes that the McDonough test applies only to cases involving inaccurate answers to voir dire questions, and not to cases involving non-disclosure of unsolicited information. See Dall, 970 F.2d at 969-70. When a juror fails to answer accurately a question that is asked, doubts are raised about the juror's motives for the inaccurate answer which are not present when a juror is not asked a question that should elicit relevant information. See id. at 970; Aponte-Suarez, 905 F.2d at 492. Accordingly, the additional form of relief available in claims of jury bias through McDonough applies only where a relevant question was asked at voir dire and the juror's answer was inaccurate. See 464 U.S. at 556, 104 S.Ct. 845; Skaggs, 164 F.3d at 515; Crowley, 303 F.3d at 407-08.
In addition, the juror must have provided an inaccurate answer to a question
The McDonough test requires a defendant to demonstrate that a juror "failed to answer honestly," that is, that his inaccurate response was dishonest rather than merely mistaken or a result of misunderstanding. See McDonough, 464 U.S. at 556, 104 S.Ct. 845; see also United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir. 1984)(court must determine whether juror "was aware of the fact that his answers were false"). The Court in McDonough characterized the issue presented as being whether "the result of a three-week trial" should be invalidated "because of a juror's mistaken, though honest response to a question." 464 U.S. at 555, 104 S.Ct. 845. The Court then stated the test to be applied when an inaccurate response is at issue and held that it is not met unless it is proven that the inaccurate response was dishonest rather than merely mistaken. Id. at 555-56, 104 S.Ct. 845; see also DeBurgo, 587 F.3d at 71-72 (no relief under McDonough where inadequate showing of dishonesty); Crowley, 303 F.3d at 408 (same); Davila Cortes v. Ramos Barroso, 27 F.3d 554, at *2 (1st Cir.1994) (per curiam) (unpublished table decision) (same); Dall, 970 F.2d at 970 (same); Amirault, 968 F.2d at 1405 (same).
McDonough reflects the understanding that the implications of an innocent error and a dishonest answer are different. An innocent, unintentional error does not itself raise a question of whether an individual is able to decide a case based solely on the evidence, although the information that should have been provided may do so.
Clark v. United States, 289 U.S. 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 (1933).
Even an intentionally false response to a material question is not the end of the McDonough inquiry because "[t]he motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." McDonough, 464 U.S. at 556, 104 S.Ct. 845. The implications of this statement were not explained by the Supreme Court in McDonough. However, as discussed below, a "reason[] that affect[s] a juror's impartiality" is not necessarily a motive that proves actual or implied bias. See id. Rather, Judge John Noonan expressed the test correctly when he wrote for the Ninth Circuit that, "[u]nder McDonough, a new trial is warranted only if the district court finds that the juror's voir dire responses were dishonest, rather than merely mistaken, and that her reasons for making the dishonest response call her impartiality into question." Pope v. Man-Data, Inc., 209 F.3d 1161, 1164 (9th Cir.2000) (citing McDonough, 464 U.S. at 556, 104 S.Ct. 845)(emphasis added). Therefore, under McDonough, "even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality." Dyer, 151 F.3d at 973. Similarly, in Boney, the District of Columbia Circuit wrote that, "[b]ecause the record provides no evidence that the motivation for the lie was unrelated to bias in this case," an evidentiary hearing was required. See 977 F.2d at 634; see also U.S. v. Tucker, 137 F.3d 1016, 1028 (1998) ("If [the defendant] can prove that [the juror] deceived the court at voir dire, he will also have to prove that she did so because of partiality, rather than for some reason that is irrelevant to the fairness of the trial." (emphasis added)).
In other words, the McDonough test is not met when the motive for dishonesty is irrelevant to a juror's ability to decide the case impartially. See United States v. Langford, 990 F.2d 65, 69-70 (2d Cir.1993)(motion for new trial properly denied where juror in controlled substances case did not reveal, due to embarrassment, that she had been convicted of prostitution fifteen years earlier). Rather, as articulated by McDonough, the party seeking relief must show a motive that calls the juror's impartiality into question. 464 U.S. at 556, 104 S.Ct. 845.
Finally, in order to justify a new trial under McDonough, a party must prove that an accurate answer would have provided a valid basis for a challenge for cause. See 464 U.S. at 556, 104 S.Ct. 845. The First Circuit has stated that for the
The last two prongs of the McDonough test require a party seeking a new trial to show that a juror's "motives for concealing information" were those that "affect a juror's impartiality," and that the concealed information, when considered along with the motive for concealment and the circumstances of eventual disclosure, "would have provided a valid basis for a challenge for cause." 464 U.S. at 556, 104 S.Ct. 845. As explained earlier, this inquiry requires the court to determine, among other things, whether the information obtained after trial "would have required or resulted in the disqualification of [the juror] for cause." Dall, 970 F.2d at 970.
The government asserts that McDonough, and other cases, should be interpreted to require a showing of actual or implied bias to establish the necessary "valid basis for a challenge for cause." See McDonough, 464 U.S. at 556, 104 S.Ct. 845. This contention is not correct. Under the McDonough test, a party can prove that he was deprived of his right to an impartial jury without proving that a juror was actually or impliedly biased. See id.; Dall, 970 F.2d at 970; Amirault, 968 F.2d at 1405-06 & n. 2. In other words, the Court in McDonough identified certain factors which, if proven, are sufficiently indicative of a juror's inability to decide a case based solely on the evidence
This construction of McDonough is consistent with the Supreme Court's own statements in that case. After rejecting the proposition that a mistaken, but honest response to a voir dire question would alone be sufficient to require a new trial, the Court stated a test that allowed a litigant to prove a deprivation of his right to a fair trial in cases where a juror provided dishonest answers at voir dire and "a correct response would have provided a valid basis for a challenge for cause." McDonough, 464 U.S. at 556, 104 S.Ct. 845. By its own terms, the McDonough test does not require proof of actual or implied bias. Id. As explained earlier, a valid basis to excuse a juror for cause includes not only actual or implied bias, but also inferable bias. See Greer, 285 F.3d at 171-72; Torres, 128 F.3d at 43; see also Wainwright, 469 U.S. at 424, 105 S.Ct. 844 (juror excusable for cause if his views or experiences would prevent or substantially impair the performance of his duties as a juror in accordance with his oath); Jones v. Cooper, 311 F.3d 306, 312 (4th Cir.2002) (noting, in analyzing a McDonough claim, that inferred bias might justify a challenge for cause). A valid basis to excuse a juror for cause has been recognized to encompass the highly discretionary determination of a trial court that a juror should be excused for cause because there is reason to doubt that he will be able to decide the case solely on the evidence. See Rowe, 144 F.3d at 20; Rodriguez-Ortiz, 455 F.3d at 23; see also Wainwright, 469 U.S. at 425-26, 105 S.Ct. 844 (recognizing answers to voir dire questions frequently do not lead to definite conclusions about juror bias, and determinations by trial judge must be given deference); Frazier v. United States, 335 U.S. 497, 511, 69 S.Ct. 201, 93 L.Ed. 187 (1948) ("in each case a broad discretion and duty reside in the court to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality"). The plain language of McDonough does not require actual or implied bias. Rather, it is broad enough to include that range of cases in which a judge would have had discretion to excuse a juror for cause and, as stated in Dall, would have exercised his discretion to do so. See Dall, 970 F.2d at 970.
This interpretation of McDonough is consistent with the manifest understanding of the majority of the Justices in that case. The seven-member majority in McDonough did not expressly state whether its new test was intended to replace actual and implied bias as bases for relief or provide an additional means of proving a claim of juror bias. However, Justices Blackmun, Stevens and O'Connor joined the majority opinion and also concurred separately to clarify that juror partiality could still be proven by showing actual or implied bias, stating that:
McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring).
In addition, Justice Brennan, who concurred only in the judgment, wrote for himself and Justice Marshall that:
Id. at 557-58, 104 S.Ct. 845 (Brennan, J., concurring in the judgment) (quoting Wood, 299 U.S. at 133, 57 S.Ct. 177).
These concurrences indicate that the ability to obtain relief based on actual or implied bias survives McDonough. See Amirault, 968 F.2d at 1405-06 & n. 2. If the McDonough test replaced the actual or implied biased inquiries, a litigant who could not satisfy the other elements of McDonough would be deprived of the ability to obtain a new trial even in the face of clear evidence of actual bias, a result that has been rejected by the First Circuit, and would leave no remedy to litigants who could show that they were deprived of their constitutional right to an impartial jury. See 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring); Amirault, 968 F.2d at 1405-06 & n. 2.
If the McDonough test required a showing of actual or implied bias in addition to a showing of dishonesty, the test Justice Rehnquist stated for the majority would be superfluous. Any party who proved the bias prong of the McDonough test would necessarily be entitled to relief under the actual or implied bias tests, without regard to whether the party succeeded in proving dishonesty. The only way to interpret the Opinion of the Court in McDonough to have any meaning, therefore, is to recognize three distinct but overlapping tests and permit relief under McDonough without requiring a showing of actual or implied bias.
The First Circuit recognized these three tests in Amirault. See 968 F.2d at 1405-06 & n. 2. In Amirault, the First Circuit cited both concurrences for the proposition that McDonough's "majority vote . . . require[s] a further determination on the question of juror bias even where a juror is found to have been honest," and noted that relief could still be obtained by proving actual or implied bias. Id. Thus, the First Circuit held that where relief under McDonough is unavailable, a court must still consider whether a juror has been shown to have been actually or impliedly biased. Id. Applying these principles, the court in Amirault sustained the state trial court's finding that the juror in question was not actually biased, found the petitioner to be ineligible for relief under McDonough because the juror was not shown to have been dishonest, and, in addition, found that "bias should not be implied" because there was not a sufficient connection between the unrecalled rape of the juror forty years before and the facts of the case. Id. at 1405-06.
The corollary to the court's conclusion in Amirault that implied and actual bias are separate tests from the McDonough test is that actual and implied bias are not requirements for relief pursuant to McDonough. If the McDonough test required actual or implied bias, the application of the McDonough test in Amirault would have been superfluous in light of the First Circuit's conclusion that neither actual nor implied bias were shown. See id. at 1405-06.
The First Circuit made this point somewhat more explicitly in Dall, where it found that the McDonough test was not satisfied because it had not been shown that "correct responses to the voir dire questions would have required or resulted in the disqualification of [the juror] for cause." 970 F.2d at 970. As discussed earlier, disqualification of a juror for cause is required in cases of actual or implied
Nevertheless, this court's statement of the McDonough test has been developed without the benefit of extensive discussion by the First Circuit. The lack of extensive discussion is, in part, the result of the fact that the First Circuit has never decided a case in which the party seeking a new trial proved that a juror had been dishonest at voir dire and it has not, therefore, been required to analyze the remaining prongs of the McDonough test. For example, in Amirault, relief under McDonough was denied because the juror was not dishonest, and there was no occasion to discuss whether a further showing of actual bias or implied bias was necessary to satisfy the McDonough test. See 968 F.2d at 1405-06; see also DeBurgo, 587 F.3d at 72 (inadequate showing of dishonesty); Crowley, 303 F.3d at 408 (same); Davila Cortes, 27 F.3d at *2 (same); Dall, 970 F.2d at 970 (same). However, the First Circuit has never held that the McDonough test requires a showing of actual or implied bias.
As the Sixth Circuit has noted, the case law reflects some confusion concerning the meaning of McDonough. See Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir.1995). However, the decisions of several circuits support the conclusion that McDonough establishes the existence of three distinct tests: the McDonough test announced in the Opinion of the Court, and the actual and implied bias tests, which remain as alternate bases of relief. In Skaggs, the Tenth Circuit upheld the district court's conclusion that a plaintiff in a product liability case was not entitled to a new trial under McDonough on the basis of a juror's intentionally dishonest failure to respond affirmatively to a question inquiring whether any juror had been involved in a lawsuit. See 164 F.3d at 515-16. Although it was later revealed that the juror
99 F.3d at 985 (quoting McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring)); see also Burton, 948 F.2d at 1159 (juror impliedly biased, and, additionally, relief was appropriate under McDonough because juror was dishonest and correct answer to voir dire questions would have resulted in juror's dismissal for cause).
The Fourth Circuit has also indicated that actual or implied bias are not necessarily requirements of relief under McDonough and that "[t]he McDonough test is not the exclusive test for determining whether a new trial is warranted: a showing that a juror was actually biased, regardless of whether the juror was truthful or deceitful, can also entitle a defendant to a new trial." Jones, 311 F.3d at 311-13 (inquiring, for purposes of relief under McDonough, whether a juror would have been excused on the basis of actual, implied or inferable bias, and separately inquiring whether relief was warranted on the basis of actual or implied bias); see also Fulks, 454 F.3d at 432 (holding that, where McDonough was not satisfied because the district court found that it would not have exercised its discretion to excuse the juror for cause, a party seeking a new trial must show actual or implied bias); Fitzgerald, 150 F.3d at 362-63 ("[f]ailure to satisfy the requirements of McDonough does not end the court's inquiry") (citing McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring)).
In Greer, the Second Circuit explained that, in deciding a claim under McDonough, a court must determine whether a correct answer at voir dire would have provided a valid basis for a challenge for
Other cases cited by the government do not persuade the court that McDonough requires proof of actual or implied bias. In Johnson v. Luoma, the Sixth Circuit stated in applying the McDonough test that "a juror is subject to a valid challenge for cause based on actual bias and, in certain limited circumstances, implied bias." See 425 F.3d 318, 326 (6th Cir. 2005). However, the court in Johnson cited only the Second Circuit's decision in Torres for this definition of a valid basis for a challenge for cause and explicitly noted that the court in Torres also permitted a challenge for cause based on inferred bias. See 425 F.3d at 326 (citing Torres, 128 F.3d at 43, 49).
The Eleventh Circuit has also stated that relief under McDonough "requires a showing of actual bias." BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1473 (11th Cir. 1992) (citing Perkins, 748 F.2d at 1532). However, that circuit employs the term "actual bias" in a different manner than other courts.
The remaining case on which the government relies, North, states that "a `valid basis for a challenge for cause,' absent a showing of actual bias, is insufficient" to obtain relief under McDonough. See United States v. North, 910 F.2d 843, 904 (D.C.Cir.1990) (quoting McDonough, 464 U.S. at 556, 104 S.Ct. 845). In so stating, the D.C. Circuit adds a requirement to McDonough that is unsupported by the Supreme Court's language in that case. See McDonough, 464 U.S. at 556, 104 S.Ct. 845. The D.C. Circuit relied on the concurrences of Justices Blackmun and Brennan for the proposition that "an aggrieved party must show that the juror's correct response at voir dire would have demonstrated actual bias." See North, 910 F.2d at 904. However, this conclusion is not supported by Justice Blackmun's concurrence and is contrary to the First Circuit's interpretation of it. See Amirault, 968 F.2d at 1405-06 & n. 2 (citing Justice Blackmun's concurrence and stating that "a further determination on the question of juror bias" is required after a party has failed to satisfy the McDonough test). It is, of course, necessary that this court follow the law as it has been described by the First Circuit. The court can do so comfortably because the First Circuit's recognition in Amirault that there are three tests for determining whether a juror was impartial—actual bias, implied bias, and McDonough—is consistent with the language and reasoning of the Supreme Court in that case.
For the foregoing reasons, to vacate a sentence of death and obtain a new trial on the question of punishment based on a juror's inaccurate answer to a question asked on voir dire, Sampson must show actual or implied bias, or satisfy the McDonough test. Under that test, Sampson must prove by a preponderance of the evidence that: (1) the juror provided an inaccurate answer to a question asked at voir dire that should have elicited particular information; (2) the question was material; (3) the juror response was dishonest; (4) the motive for answering dishonestly relates to the juror's ability to decide the case based solely on the evidence and calls the juror's impartiality into question; and (5) the concealed information, when considered
As indicated earlier, Sampson bears the burden of proving facts justifying a new trial by a preponderance of the evidence that is admissible under the Federal Rules of Evidence. See DeBurgo, 587 F.3d at 71; Crowley, 303 F.3d at 408; Fed.R.Evid. 1101(b). Sampson asserts that he is entitled to a new trial because C's inaccurate answers at voir dire caused him to be deprived of the right to an impartial jury guaranteed by the Sixth Amendment. This contention is correct.
C testified three times in these § 2255 proceedings. The opportunity to observe and evaluate her demeanor was important to the court in several ways. First, it was important in deciding her credibility. The court's perception of C's demeanor was also important in assessing whether she would have been able to decide whether Sampson should be executed based solely on the evidence or, instead, was likely to have been substantially impaired in her ability to do so by her disturbing personal experiences and enduring emotional reaction to them. As described below, the court finds that: C intentionally gave false answers to many important questions in her questionnaire, during individual voir dire, and in these § 2255 proceedings; she did so in an effort to hide painful experiences which were, in some respects, comparable to matters involved in Sampson's case; if, before empanelment, the court had the information it now possesses, she would have been excused for cause because of the high risk that she would not be able to decide whether Sampson should live or die based solely on the evidence; and the decision to excuse her for cause would have been reinforced by her repeated perjury.
As explained earlier, in this case Sampson was charged with two carjackings resulting in death. Prior to trial, the parties and the court knew that the jury would be exposed to disturbing evidence of those murders and of a third murder in New Hampshire. It was also known that the trial would include evidence that Sampson had threatened to shoot female bank tellers in North Carolina in the course of a series of robberies, and that he had made threats during a third carjacking as well. In addition, it was known to Sampson's counsel, at least, that the jury would hear evidence of Sampson's history of drug abuse and the toll it took on one of his marriages. It was also foreseen that there would be testimony about Sampson's experiences in prison. Moreover, it was expected that the jury would learn that Sampson's parents and other family members had abandoned him after he was charged with being a murderer.
Prior to trial, the court worked with counsel for the parties to develop a detailed questionnaire that was intended to elicit all of the information necessary to determine whether a juror was eligible to serve in Sampson's particular capital case. The seventy-seven questions were designed to develop information concerning any bias a juror realized that he or she had and was willing to reveal. The questions were also designed to obtain information concerning life experiences that were relevant to determining whether a juror would be able to decide the issues presented
The jury selection process began with jurors appearing in court to complete the questionnaire. Each juror was sworn and instructed orally by the court. The jurors were told that while there were no right or wrong answers, it was essential that each question be answered truthfully. To emphasize this, the jurors were informed that any intentionally false statement could subject them to a prosecution for perjury. The jurors were also instructed to take whatever time was necessary to answer the questions thoughtfully.
The court was aware that some of the questions on the questionnaire were designed to elicit information that jurors might regard as private and sensitive. Therefore, the jurors were told that they could request that certain of their answers be kept permanently out of the public record or, alternatively, that they could respond to a question by writing "private." The jurors were informed that if they were called back for individual voir dire, upon request sensitive or private information would be discussed in a session closed to the public.
These points were reiterated in the questionnaire itself. The introduction to the questionnaire instructed each juror that "[i]t is very important that you answer the questions as completely and accurately as you can." Ex. 64 at 1. The questionnaire also explained that "[y]ou have taken an oath promising to give truthful answers, and any intentionally false statement could subject you to prosecution for perjury." Id. The written instructions also stated that with regard to a sensitive subject a juror could either request that her answer be kept out of the public record or, alternatively, simply write the word "private," which would result in oral questioning on that matter if the juror was recalled for individual voir dire. Id. at 1-2.
C was in a group that received the court's oral instructions and completed their questionnaires on September 18, 2003. She was then 51 years old. She had graduated from high school and had worked for many years in customer service for a telecommunications company. C understood the oral and written instructions she received, including the requirement that she provide honest, accurate, and complete answers to each question unless she marked a question "private." She took the time necessary to complete the questionnaire. She then signed it, certifying "under the pains and penalties of perjury, that the answers which I have given in this questionnaire are true and complete to the best of my knowledge and belief." Id. at 30.
As described below, this certification was known by C to be false. As C then knew, she had deliberately falsely answered a series of questions because it was too emotionally painful for her to disclose or discuss certain personal experiences that she regarded as "horrible." See Mar. 18, 2011 Tr. at 70; Nov. 18, 2010 Tr. at 66, 133, 143.
While many other jurors were excused for cause based on their written responses to the questionnaire, C was not. Rather, she and some other jurors appeared for individual voir dire on October 2, 2003. She was asked to read the transcript of the court's earlier oral instructions. In addition, she was told again that, upon request, the public would be excluded from the discussion of sensitive, personal subjects. C was also reminded that she remained under oath. Prior to being questioned orally, C confirmed that she had read the transcript of the court's oral instructions
When asked whether she wanted to correct her responses to any of the questions in the questionnaire, C asked to clarify only her response to Question 24, which addressed her ability to consider mental illness as a mitigating factor. However, in her questionnaire, C had answered "no" to, among other inquiries, questions that asked: whether she or anyone close to her had been charged with committing a crime (Question 63); whether she knew anyone who had ever been in prison (Question 64); whether she, or anyone: close to her, had ever been a victim of a crime or a witness to a crime (Question 59); whether she, or anyone close to her, had ever been questioned as part of a criminal investigation (Question 61); whether she or anyone close to her had an experience with the police in which she or that other person was treated fairly (Question 65); whether she or anyone else close to her had ever been employed, in any way, in law enforcement (Question 68); and whether she or anyone close to her ever had a drug problem (Question 32). As C knew both when she answered the questionnaire on September 18, 2003, and when she appeared for individual voir dire on October 2, 2003, her "no" response to each of those questions was false.
As of September, 2003, C had endured a difficult personal life that included events she subsequently described in these § 2255 proceedings as "horrible" experiences that she "had to move on" from and "ha[d] to forget." See Mar. 18, 2011 Tr. at 40-41, 81, 86-87. These experiences mainly involved her daughter J and her second husband P. These experiences were so deeply disturbing to C that she frequently cried when testifying about them in these § 2255 proceedings. Both during voir dire in 2003 and in the course of these § 2255 proceedings, C deliberately and systematically gave false answers to questions intended to elicit information concerning these experiences because it was too painful for her to disclose or discuss them.
C married [redacted] in 1971, and divorced him in about 1978. C and had [redacted] two children, J and a son. J married [redacted] [redacted] and moved from the small town of Merrimac, Massachusetts, where C lived, to Florida in about 1993.
In about 1995, J got a job performing administrative duties with the Sanibel, Florida Police Department, where she received promotions and commendations. C was very proud of J's success in the Police Department.
However, by September, 2003, when she appeared as a potential juror in Sampson's case, C was no longer proud of J because she knew the following. In 1997, J was arrested and charged with stealing property from the Police Department, and then arrested and charged again for stealing and using a coworker's credit card. J was placed on probation for these offenses. Then, in 1998, J was sentenced to six months in prison for violating the terms of her probation by using cocaine and absconding from supervision. C believed that J had been treated fairly by law enforcement in all of these matters. In connection with them, C learned that J was addicted to cocaine. She visited J in prison and was distraught by her daughter's appearance. In 2003, C had a relationship with J, for example, bringing J's children to see her annually.
C was deeply ashamed of J's criminal conduct. In these § 2255 proceedings C tearfully characterized J's conviction and incarceration as "a nightmare" and said they had caused "a horrible, horrible time in [her] life." Mar. 18, 2011 Tr. at 40, 73. Indeed, she tried hard but unsuccessfully
C married her second husband, P, in 1979, and divorced him in 2002. P worked for the United States Postal Service. The couple had three sons.
During their marriage, P regularly abused alcohol and marijuana. C urged him to get treatment for his drug problem. P's substance abuse ultimately contributed greatly to C's decision to divorce him. As she testified in these § 2255 proceedings: "He liked to drink. He liked his vodka. And he liked smoking his pot. And I had had it." Nov. 18, 2010 Tr. at 143-44.
In about 1985, [redacted]. When C later learned about it, she felt confused, ashamed, and embarrassed. See Mar. 18, 2011 Tr. at 66. As the crying C described it in her testimony in these § 2255 proceedings, "[i]t was horrible," id., "like the end of my life," Nov. 18, 2010 Tr. at 162.
In addition, P often threatened to harm his wife by physically chasing her, punching walls, and causing C to believe he would punch her too if he could catch her. These incidents frightened C, who would frequently go to her mother's home to avoid her husband.
On May 29, 2000, P's threats to his wife escalated. After refusing C's repeated requests for a divorce, P angrily confronted her at a bar. Later that day, C found in her home a suicide note her husband had written. Soon after, P came to their house with a shotgun or rifle. He told C that "he was going to shoot [her] and then himself." Id. at 141. As C wrote in her affidavit to obtain an Abuse Prevention Order, she was genuinely "afraid he was going to shoot [her]." Ex. 66. Two of her sons took the weapon away from P. C took it and the suicide note to the Merrimac Chief of Police, who she knew, and discussed the incident with him. As she later tearfully testified in the course of these § 2255 proceedings, this incident too was "horrible" for her. Nov. 18, 2010 Tr. at 143.
On May 31, 2000, C requested and received an Abuse Prevention Order that required that P stay at least fifty yards away from her. Ex. 66. At the top, the document stated that "VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both." Id. C read the Order. In both 2000 and in September, 2003, when she filled out her questionnaire, she knew that a violation of the Order was a criminal offense.
P violated the Order on June 20, 2000, and was arrested in C's presence for doing so. On that day, P returned to C's home, chased her into a bedroom, and would not let her leave. Once again, C was afraid he was going to hurt her. However, after one of her sons intervened, C was able to call 911. When police officers arrived, they observed that C was "visibly shaken and crying." Ex. 67. She was, however, able to report that her husband had violated the Abuse Prevention Order. A police officer questioned her at her home about the incident. As he was doing so, P returned and was arrested. C then went to the police station and gave a further statement.
Although C unconvincingly claimed in her testimony in these § 2255 proceedings not to know it, P was prosecuted for violating the Abuse Prevention Order and put on probation. When C went to court to have that Order extended, her husband became very angry and unruly, and court
While the Abuse Prevention Order was in effect, P stalked C at least three times. When she complained to the police, they told her they could not do anything because her husband was remaining more than fifty yards away from her. C believed that the Merrimac police had treated her fairly, just as she believed that J had been treated fairly by authorities in Florida.
Between the time of C's divorce in 2002 and voir dire in September, 2003, she maintained regular contact with P. They talked about their children and were supportive of each other when their youngest son was hospitalized for ten days. Thus, as of September, 2003, P remained a person who was close to C.
Nevertheless, C regards the events that lead to her divorce from P as "horrible" and "a nightmare." Mar. 18, 2011 Tr. at 81; Nov. 18, 2010 Tr. at 133. Although she never forgot those events, including during the voir dire process, she found those events emotionally too difficult to disclose or discuss.
As indicated earlier, during voir dire C consistently and intentionally answered questions falsely in order to avoid disclosing J's drug addiction, convictions, and incarceration. She also consistently gave dishonest answers to questions which should have revealed, among other things, that P had threatened to kill her about three years earlier.
For example, with regard to J, in response to Question 47 which asked for information concerning any children, C disclosed only her two sons who were then living with her in her home. In these § 2255 proceedings, C testified that she thought the question only sought to identify children who were living at home,
C's dishonest answers were not discovered before she was empaneled and became one of the deliberating jurors who unanimously decided that Sampson should be executed. However, Sampson's counsel in these § 2255 proceedings discovered that in 2000 C had obtained an Abuse Prevention Order against P, and successfully argued that she should be questioned about it and related matters.
At the November 18, 2010, hearing the parties and the court learned for the first time that C had five children, including J. Sampson's counsel conducted additional investigation and persuaded the court to recall C in order to question her about J.
C appeared again on March 18, 2011. After again being placed under oath and asked whether there was anything in her prior testimony that she wanted to correct, C said that she recalled after she left the courthouse on November 18, 2010 that her daughter J had been arrested "like 20 years ago." Mar. 18, 2011 Tr. at 40. She claimed that she wanted to call the court to report this, but did not have the telephone number. This contention was dishonest. The court's letter and subpoena for her November 18, 2010 appearance provided C a telephone number she could have called. In addition, a call could have been made to the court's Deputy Clerk at a number available on the District Court's website. The court finds that C mentioned J at the outset of the March 18, 2011 hearing only because she had correctly inferred that she had been recalled because J's criminal history had been discovered.
In any event, C quickly characterized her experience with J's crimes as a "humiliating" "nightmare." Id. at 40, 41. Her tears, and many inconsistent and incredible explanations
At the March 18, 2011 hearing, C testified that she did not speak to any of her fellow jurors after the trial was over. Id. at 70. She also stated that she had not had any contact with the families of the victims in the case. Id. These statements too proved to be dishonest.
As explained earlier, to prove that he is entitled to a new trial because he was denied his constitutional right to a jury that is "capable and willing to decide the case solely on the evidence before it," McDonough, 464 U.S. at 554, 104 S.Ct. 845, Sampson bears the burden of proving by a preponderance of the evidence facts that justify granting a new trial for actual bias, implied bias, or under McDonough. See Amirault, 968 F.2d at 1405-06 & n. 2; Dall, 970 F.2d at 970. As explained below, while actual or implied bias have not been proven, Sampson has established that he is entitled to a new sentencing trial under McDonough.
The court finds that the foregoing facts are not sufficient to prove whether or not C was actually biased. Sampson is, therefore, not entitled to relief based on actual bias.
As described earlier, actual bias is an issue of fact. See Amirault, 968 F.2d at 1405-06; Fields, 503 F.3d at 767; Dyer, 151 F.3d at 973; Torres, 128 F.3d at 43. When the issue arises during the jury empanelment process, actual bias has been defined as "the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." Fields, 503 F.3d at 767 (quoting Gonzalez,
When it is alleged after trial that a juror who participated in deciding the case was actually biased, courts often focus on whether the juror proved to be willing and able to decide the case based solely on the evidence. For example, in Fields the defendant was charged with committing robbery, rape, and murder. See 503 F.3d at 761. In response to voir dire questions a juror disclosed that his wife had been assaulted and robbed two years earlier. Id. at 764. After trial, it was discovered that the juror's wife had been raped in the course of those crimes. Id. at 764-65. The trial court found that the juror "did not intend to mislead the trial court, or hide the facts of the attack on his wife, by using the word `assault' instead of `rape.'" Id. at 767.
Id. at 767.
In the instant case, it is not possible for the court to determine whether or not C was willing and able to decide whether the death penalty was justified based solely on the evidence, unimpaired by her painful personal experiences. As the government argued, Federal Rule of Evidence 606(b) provides that: "a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions . . . or concerning the juror's mental processes." The First Circuit has recognized a limited exception to this principle where it is alleged that a juror was biased because of the defendant's race or ethnicity. See Villar, 586 F.3d at 87-88. However, this exception is not applicable in the instant case. Therefore, the court informed the parties of its tentative view that Rule 606(b) operates to exclude evidence of matters or statements occurring during the course of jury deliberations, even if offered to show dishonesty at voir dire rather than to prove a juror's thought process in deciding whether the death penalty was justified. See Mar. 18, 2011 Tr. at 8-9; United States v. Benally, 546 F.3d 1230, 1235-36 (10th Cir.2008) (citing Williams v. Price, 343 F.3d 223, 235 (3rd Cir.2003) (Alito, J.)); but see Hard v. Burlington Northern Railroad, 812 F.2d 482, 485 (9th Cir.1987) (citing Maldonado v. Missouri Pacific Railway Co., 798 F.2d 764, 770 (5th Cir.1986)). Sampson did not generally press this issue and, following the court's comments, C was not questioned specifically about matters that occurred during jury deliberations.
C did claim that her painful personal experiences did not affect her ability to be fair and impartial in deciding whether
In any event, it is often difficult to determine many years after the fact whether a juror was actually biased. See Dyer, 151 F.3d at 981 ("Whether [the juror] was actually biased . . . is difficult to figure out eighteen years later."). It is particularly difficult to now assess C's state of mind in 2003 because she was so distraught during her testimony. C herself may not now truly know whether she performed her jury service impartially. Her repeated lack of candor and her inability to discuss certain matters unemotionally and coherently cause the court to be concerned that C was not actually able to decide the relevant issues based solely on the evidence.
However, there is insufficient evidence for the court to find whether or not C was actually biased. Accordingly, Sampson has not satisfied his burden of proving that he is entitled to a new trial because of actual bias.
Whether Sampson is entitled to a new trial because C should be found to have been impliedly biased is a close question. As explained earlier:
Torres, 128 F.3d at 45 (footnote omitted); see also Fields, 503 F.3d at 770; Sanders, 529 F.3d at 792-93.
This case does not involve "a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction." Smith, 455 U.S. at 222, 102 S.Ct. 940 (O'Connor, J., concurring). Therefore, C is not impliedly biased because of any direct personal relationship to the parties or specific events in the case.
In addition, this case is not one in which implied bias may be found because "repeated lies in voir dire imply that the juror concealed material facts in order to secure a spot on the particular jury." See Fields, 503 F.3d at 770 (citing Dyer, 151 F.3d at 982)(emphasis added); see also Green, 232 F.3d at 677-78 (holding that a juror was impliedly biased where he "lied twice to get a seat on the jury," provided misleading, contradictory, and false responses when questioned about those lies, and engaged in behavior that brought his impartiality into question). C did not lie during the jury selection process because of a conscious desire to become a juror and punish Sampson for the fear and abuse she had suffered. Rather, she lied to avoid having to disclose or discuss her painful personal experiences.
However, C did repeatedly provide dishonest answers at voir dire, a factor that weighs in favor of a finding of implied bias. See Skaggs, 164 F.3d at 517. This case is, therefore, distinguishable from those in which jurors discussed their experiences honestly, and implied bias was not found. See, e.g., Fields, 503 F.3d at 774-75 (holding, in a case involving allegations of robbery, rape and murder, where the juror answered questions honestly at voir dire, that bias should not be implied because juror's wife had been raped and robbed two years prior to voir dire); Powell, 226 F.3d at 1186, 1189 (holding, in a case involving a charge of kidnaping for sexual gratification, that bias should not be implied where a juror honestly disclosed in voir dire that she had a daughter who had been raped ten years earlier); Torres, 128 F.3d at 46 (holding, in a case involving
Although C's repeated dishonesty at voir dire contributes to raising a close question about whether she should be found to have been impliedly biased, the court does not find that implied bias has been proven because C did not have a direct relationship to the parties or events in the case, the occurrences in her own life which may have affected her ability to decide the case based solely on the evidence occurred before rather than during the trial, and she did not lie in order to secure a seat on the jury.
Although the court does not find actual or implied bias proven, this case is a paradigm for granting relief under McDonough. As explained earlier, McDonough is a third, alternative means of obtaining a new trial, which does not require proof of actual or implied bias. See McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring); Amirault, 968 F.2d at 1405 n. 2. Once again, McDonough is rooted in the recognition that "the honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial." McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring). Because dishonest answers to material questions create destructive uncertainty concerning whether a juror is willing and able to decide issues based solely on the evidence, McDonough creates a special test when dishonest answers have been given to material questions. Id. (majority opinion).
For the reasons explained previously, to achieve relief under McDonough, a party must prove by a preponderance of the evidence that: (1) a juror gave an inaccurate answer to a question that was asked on voir dire; (2) the question was material; (3) the inaccurate response was dishonest, meaning knowingly and intentionally false rather than the result of a good faith misunderstanding or mistake; (4) the reason for the knowingly and intentionally false response relates to the juror's ability to decide the particular case based solely on the evidence and, therefore, calls into question the juror's ability to be impartial; and (5) a correct response would have provided a valid basis for a challenge for cause and would have resulted in disqualification of the juror based on actual bias, implied bias, or inferred bias. The court finds that Sampson has satisfied each of the requirements of this test.
First, C provided inaccurate answers to questions asked at voir dire. Thus, the instant case is not a "non-disclosure" case in which the information now at issue was not required to be disclosed by any question and, therefore, relief would be available only if actual or implied bias are proven. See id. (Blackmun, J., concurring); Crowley, 303 F.3d at 407-08; Dall, 970 F.2d at 969-70; Aponte-Suarez, 905 F.2d at 492. Rather, in this case the questionnaire included many questions which, if answered accurately, would have elicited most of the information concerning C's painful experiences with J and P, which would in turn have led to the discovery of any remaining, undisclosed facts.
More specifically, C answered inaccurately all of the questions that should
With regard to the second prong of the McDonough test, each of the questions that C answered inaccurately by withholding elicited information concerning J and P had the potential to influence the decision on whether she was willing and able to decide the case based solely on the evidence and, therefore, could and would be an impartial juror. Thus, those questions were material. See Neder, 527 U.S. at 16, 119 S.Ct. 1827; United States v. Lecco, 634 F.Supp.2d 633, 660 (S.D.W.Va. 2009) (vacating a death sentence under McDonough based in part on a finding that questions about prior investigation of juror by law enforcement were material).
In addition, each of C's inaccurate responses to questions that should have elicited relevant information about J and P was dishonest, meaning knowingly and intentionally false, rather than the result of a good faith misunderstanding or mistake. See Jackson, 405 F.3d at 1288-89 (granting a new trial under McDonough where trial judge implicitly found that juror's inaccurate answers to material questions were intentional and dishonest); Burton, 948 F.2d at 1158 (granting a new trial under McDonough after finding that, contrary to the conclusion of the state court, it was "hard to believe that the juror honestly answered the [relevant] voir dire questions").
The fourth prong of the McDonough test requires this court to examine the motives for C's dishonesty, and whether these reasons call into question her ability to be impartial. See McDonough, 464 U.S. at 556, 104 S.Ct. 845; Pope, 209 F.3d at 1164; Greer, 285 F.3d at 167; Dyer, 151 F.3d at 973; Tucker, 137 F.3d at 1028; Boney, 977 F.2d at 634. As the Supreme Court noted in McDonough, "[t]he motives for concealing information may vary, but only those reasons that affect a juror's impartiality can be said to affect the fairness of the trial." 464 U.S. at 556, 104 S.Ct. 845. Accordingly, the court must decide whether the reasons for C's dishonest answers to voir dire questions that should have elicited important information concerning J and P relate to C's willingness or ability to decide Sampson's case based solely on the evidence.
The court has found that C lied because of her shame and embarrassment about what J had done and about her experiences with P. Her shame and embarrassment were so intense that she could not discuss those matters candidly, unemotionally or, often, coherently. Moreover, thinking of J and P damaged, if not destroyed, C's general ability to think clearly and respond rationally, rather than with excessive emotion, about other matter's.
The intensely emotional matters that caused C to lie repeatedly under oath in order to avoid disclosing and discussing them relate to matters the jury was required to consider in deciding whether to sentence Sampson to death. Like Sampson's
This case is, therefore, unlike Langford, discussed below, in which a juror's dishonest failure to reveal during voir dire in a drug case that she had been convicted of prostitution many years before was a result of her embarrassment about that conviction and did not suggest that she would react emotionally to the evidence in the case or would otherwise be unable or unwilling to decide the case solely on the evidence. See Langford, 990 F.2d at 67-68. Here, C's reasons for lying during voir dire reflect her deep emotional distress about events similar to those presented in the trial and are, therefore, "reasons that affect [her] impartiality." McDonough, 464 U.S. at 556, 104 S.Ct. 845. Prong four of McDonough is thus satisfied.
The fifth prong of the McDonough test is also satisfied because, if fully informed before empanelment, the court would have had the discretion to excuse C for cause,
During voir dire, the court excused other jurors who had disturbing life experiences that were similar to events at issue in the case and which evoked a highly emotional response. For example, one juror stated that she could be impartial, but disclosed that her late sister had struggled with mental illness and alcoholism. See Oct. 2, 2003 Tr. at 242-43. The juror
Id. at 245.
Another juror disclosed that she had a sibling who had a serious psychological condition and equivocated when asked if she could be impartial if there was evidence that Sampson was psychologically disturbed. See Sept. 30, 2003 Tr. at 131-46. The court found that it would not necessarily excuse a person who expressed such equivocation or who had a family member who was mentally ill. Id. at 147. However, this particular juror exhibited such a strong emotional response to discussion of mental illness that the court concluded that the trial "will become an especially difficult ordeal for her" and was "sufficiently concerned that her experience with her brother will substantially impair her ability to succeed in what [the court thought] would be an effort to follow the law and that she would be in such great risk of having a breakdown of some sort that it could infect the rest of the jury." Id. at 147-48. Therefore, although the court did not state that this juror was actually biased, the court concluded that "the most appropriate decision is to excuse her" over the defendant's objection. Id. at 148.
Similarly, if the court had been properly informed by honest answers in C's questionnaire and during individual voir dire, it would have exercised its discretion to excuse her for cause. While the jurors just discussed were excused because of their emotional reaction to matters relating to people close to them, C's difficulties arose largely from things that had happened directly to her, such as P's threat to kill her. As indicated earlier, at the time of voir dire, the court would have foreseen that the trial would include: testimony about violent murders; testimony from female bank tellers who Sampson had threatened to shoot; testimony that Sampson abused alcohol, cocaine, and marijuana; testimony that one of Sampson's marriages ended as a result of his drug use; and testimony that Sampson had been incarcerated. If the court had known that C was deeply distressed because: three years earlier she had herself been threatened with being shot and killed; she had ended a marriage due to her husband's substance abuse; and she felt deeply ashamed of her daughter's criminal activity, drug abuse, and incarceration, the court would have found that, after being exposed to the evidence in the case, C was likely to be influenced by her own life experiences and probably be substantially
In addition, the court also excused jurors solely because it was discovered that they had provided answers that they knew were false on their questionnaire. For example, one juror had disclosed on his questionnaire that his brother had a drug addiction and been treated, but did not reveal his own addiction to oxycontin and treatment for it. See Oct. 1, 2003 Tr. at 127-29. The juror explained he had not revealed his own situation because he "just didn't really feel [he] had to. . . ." Id. at 128. With the agreement of the parties, he was excused because he had lied. Id. at 126-28. Similarly, another juror was excused because, the court explained, "I have, observing his demeanor, the definite impression that he would be unable to apply the law and, indeed, in some respects, was not candid when he filled out the questionnaire." Oct. 15, 2003 Tr. at 67. Moreover, when the court discovered during trial that two sitting jurors had answered portions of the questionnaire dishonestly, it dismissed those jurors as well. See Nov. 20, 2003 Tr. (Sealed Lobby Conference) at 3-5; Dec. 12, 2003 Tr. (Sealed Lobby Conference) at 39, 41. Therefore, had the court learned prior to empanelment that C had intentionally lied on her questionnaire and had later failed to correct her responses when given the opportunity to do so, she would have been excused for cause for that reason as well.
In view of the foregoing, prong five of the McDonough test, the requirement that C could and would have been excused for cause, is satisfied.
In finding prongs four and five of McDonough satisfied, the court concludes that this case is distinguishable from Langford, 990 F.2d 65, on which the government relies, and comparable to Burton, 948 F.2d 1150, in which the McDonough standard was met. Langford was a case in which a doctor was charged with dispensing controlled substances illegally. See 990 F.2d at 66. In response to a question about whether she had ever been arrested or convicted, a juror intentionally did not disclose that she had, fifteen years earlier, been convicted of prostitution. Id. at 67. She did not answer the voir dire question honestly because of "substantial embarrassment." Id. However, when her record was discovered, the juror candidly confessed and explained, evidently calmly, her motive for lying. Id. Unlike C, the events that the juror dishonestly failed to disclose in Langford were very different from the matters presented by the evidence in the case she was called upon to decide. The trial judge found no reason to be concerned that she could not decide the case based solely on the evidence and held that the juror would not have been excusable for cause. Id. at 67-68.
In contrast, in the instant case, C's reasons for lying during voir dire cast doubt on whether she could have decided the case based solely on the evidence and she would, therefore, have been both excusable
In affirming this decision, and finding implied bias proven as well, the Tenth Circuit wrote:
Id. at 1159 (citations and footnote omitted). The Tenth Circuit's reasoning regarding McDonough is equally applicable to the instant case. Had C honestly answered the questions that should have elicited the relevant information regarding J and P, the court would have had the discretion to excuse her for cause and would have done so.
In summary, C dishonestly provided inaccurate answers to material voir dire questions which sought to elicit, among other things, information about whether she had experiences which were similar to the evidence that would be presented and whether those experiences would likely impair her ability to decide the case based solely on the evidence. Her motives for lying and her emotional distress about the subjects she refused to disclose raise substantial doubt concerning whether she could and would have decided the case based solely on the evidence. If properly informed, this court would have excused her for cause. Sampson has proven each of the facts required by McDonough and, therefore, that he was denied his Sixth Amendment right to an impartial jury. Accordingly, he must be granted a new trial at which twelve truly impartial jurors will have to decide whether he should live or die. See McDonough, 464 U.S. at 554, 556, 104 S.Ct. 845; Morgan, 504 U.S. at 729, 112 S.Ct. 2222.
Sampson also claims that he is entitled to a new trial for sentencing because juror D gave inaccurate responses during jury selection. As discussed earlier, relief is attainable in an inaccurate response case by showing actual or implied bias, or by proving each of the elements of the McDonough test. See Dall, 970 F.2d at 969-70; Amirault, 968 F.2d at 1405-06 & n. 2.
D completed her questionnaire on September 18, 2003, and appeared for individual voir dire on October 17, 2003. Investigation by Sampson's counsel in these
The court finds that D made a number of inaccurate statements in answer to questions at voir dire. However, these statements were the result of a good faith misunderstanding or mistake, rather than of dishonesty.
During the voir dire process, D was living with [redacted], and several of her inaccurate answers to questions on the questionnaire relate to him. First, in response to Question 68, which asked about whether anyone close to her had ever been employed as a private security guard or in law enforcement, she did not report that [redacted] had worked as a police officer at Northeastern University until about 1998. The court finds that D did not withhold this information intentionally. Rather, at the time of voir dire she had forgotten that [redacted] had worked in this capacity.
Similarly, Questions 63 to 66 asked whether D or anyone close to her had been charged with a crime, been in prison, or had a fair or unfair experience with law enforcement. D did not report that [redacted] had been convicted of driving under the influence. However, she did not know in 2003 of [redacted]'s conviction. Therefore, her response was not dishonest.
Question 22 asked whether D or anyone else close to her was a member of any religion that had taken a position concerning the death penalty. In 2003, D was a member of the United Methodist Church, which opposed the death penalty. D, however, did not know that the Church had taken a position on the death penalty. Therefore, her response to Question 22 was also not dishonest.
Finally, Question 48 asked whether any member of D's family had ever served in the military. In 2003, D knew that her father and uncle had served in the Army, and that her uncle had served in combat. She did not report this information because she did not remember it when she was answering the questionnaire or when she returned for individual voir dire. Therefore, D's response to Question 48 was not intentionally false.
In view of these findings, Sampson is not entitled to relief. In general, D impressed the court as an honest, thoughtful juror. She was not proven to be actually biased. Moreover, the matters that she failed to disclose were not comparable to matters at issue in Sampson's case. Because there were not similarities between D's undisclosed personal experiences and the issues involved in Sampson's case, implied bias has not been demonstrated. See Sanders, 529 F.3d at 792-93; Person, 854 F.2d at 664.
As D did give some inaccurate answers, the McDonough test applies. See McDonough, 464 U.S. at 556, 104 S.Ct. 845; DeBurgo, 587 F.3d at 72; Crowley, 303 F.3d at 408; Dall, 970 F.2d at 970; Amirault, 968 F.2d at 1405. However, because none of D's inaccurate answers were dishonest, they do not provide a basis for granting relief under McDonough, See McDonough, 464 U.S. at 556, 104 S.Ct. 845; Crowley, 303 F.3d at 408; Amirault, 968 F.2d at 1405. Moreover, the information not disclosed does not suggest any impairment of D's ability to decide the case based solely on the evidence. Accordingly, accurate responses would not have required or resulted in her being excused for cause. See Dall, 970 F.2d at 970. Therefore, the McDonough test is not met for these reasons as well.
In essence, Sampson has failed to prove that D's inaccurate responses demonstrate
Sampson also argues that he was deprived of his right to an impartial jury because juror G answered some voir dire questions inaccurately. Therefore, G too was required to testify on November 18, 2010. Although at times suffering from a lack of memory, G was a calm and credible witness in 2010.
G completed his questionnaire on September 18, 2003, and returned for individual voir dire on October 17, 2003. The court finds that on July 20, 1990, when G was 18 years old, he lost control of his car and drove it into a fence in East Bridgewater, Massachusetts. On July 22, 1990, an application for a complaint was filed in the Brockton District Court which alleged that G operated his vehicle to endanger the lives or safety of the public in violation of M.G.L. c. 90, § 24. The Brockton District Court summoned G to appear on October 30, 1990, and the case was assigned the docket number [redacted]. G failed to appear and a default warrant issued.
On January 29, 1991, G was stopped by police for a motor vehicle infraction in Brockton, Massachusetts, and was found to be driving with a suspended license in violation of M.G.L. c. 90, § 23. During that stop, police arrested G based on the outstanding warrant for failing to appear. About two hours later, after paying a $25.00 fee, G was released on personal recognizance and was ordered to appear in Brockton District Court the following morning.
The next day, G appeared in Brockton District Court and was arraigned on both the driving to endanger charge, docket number [redacted], and the charge of driving with a suspended license, which was assigned the separate docket number [redacted]. The default warrant arising out of the driving to endanger charge was removed. The court appointed counsel to represent G in both matters.
On March 26, 1991, G admitted sufficient facts to find him guilty of driving to endanger, and that case, docket number [redacted], was continued without a finding until September 26, 1991. He was ordered to pay $80.00 in costs and assessments, which he paid in April, 1991.
In mid-April, 1991, a default warrant was issued in the case charging G with driving with a suspended license, docket number [redacted]. The warrant was removed on April 23, 1991, at which time G admitted sufficient facts to find him guilty of driving with a suspended license. That case, docket number [redacted], was continued without a finding until September 26, 1991.
On September 26, 1991, the case charging driving to endanger, docket: number [redacted], was dismissed. The case charging driving with a suspended license, docket number [redacted], was not dismissed at that time because G had not paid related costs and fees, and a default warrant was issued in that case. There was no further activity in the case charging driving with a suspended license until 1999, when the case was dismissed by the court for administrative reasons.
On January 2, 1992, G was ticketed for speeding in Arizona, in violation of Arizona Revised Statutes 28-702.01D, a misdemeanor. Shortly thereafter, he appeared in court and paid a fine.
On March 28, 1992, G was issued a citation in Arizona for underage drinking and was ordered to appear in court at a later date. However, he returned to Massachusetts and did not appear as ordered.
At some point later in 1992 or in 1993, G moved back to Arizona to attend school. In late 1992 or in 1993, G was a passenger in a car that was stopped for speeding. The police determined that there was an outstanding warrant for G and arrested him. He was transported to the police station in handcuffs, held in a cell for several hours, and then posted bond for his release. About two weeks later, he was required to appear in court in Arizona and to pay a fine equal to his bond, meaning that he did not have to make any additional payments to the court. The court adjudicated G guilty regarding the underage drinking citation on May 18, 1993.
On April 5, 1995, G was charged in Arizona with two motor vehicle violations, entering a highway from a private road or driveway in violation of Arizona Revised Statutes 28-774 and failing to provide proof of financial responsibility in violation of Arizona Revised Statutes 28-1253D. As to both violations, he was found responsible by default on May 2, 1995 and ordered to pay fines totaling $483.00. He paid the fines on May 19, 2005.
G did not disclose any of the foregoing information in his questionnaire or during individual voir dire, despite questions which asked whether he had ever been charged with a crime (Question 68) and whether he had any experience in which the police or criminal justice system had treated him fairly (Question 65) or unfairly (Question 65). At the November 18, 2010, hearing, G was questioned on these matters.
At the time of jury selection in 2003, G remembered some, but not all, of his encounters with the police and courts described above. With respect to events in Massachusetts, he remembered that he was charged with driving to endanger, was arrested in connection with that charge, spent several hours in custody, went to court on at least one occasion, had a court-appointed attorney, and ultimately paid a fine. G believed that the driving to endanger charge was a "traffic violation" and, as such, was not a criminal charge he had to disclose. G did not remember that he had been charged with driving with a suspended license.
With respect to events in Arizona, he remembered that he had been cited for underage drinking, that a warrant was issued for his arrest when he failed to appear, that he was arrested after being a passenger in a car stopped for speeding, that he was transported to the police station in handcuffs and held in a cell for several hours, that he was released on bond, and that he later appeared in court and was ordered to pay a fine. He did not recall being charged for speeding or cited for motor vehicle violations in Arizona. Once again, he did not understand the questionnaire to be asking about traffic violations. In 2003, G felt that during his encounters with police and other parts of the criminal justice system, he had been treated fairly.
The court finds that at the time of jury selection, in 2003, G did not withhold any information because of a desire to serve on the jury in Sampson's case. Cf. Green, 232 F.3d at 676-78; Dyer, 151 F.3d at 982-83; see also Clark, 289 U.S. at 11, 53 S.Ct. 465. G sincerely, but mistakenly, interpreted the questions on the questionnaire soliciting information about "crimes" to be asking about felonies rather than "traffic violations" or a citation for underage drinking. He also thought that the related questions about whether he had been treated fairly or unfairly by the police or criminal justice system referred
G has not been proven to have been actually biased. In addition, the matters he failed to disclose were not comparable to matters involved in Sampson's case. Because there were not similarities between G's undisclosed personal experiences and the issues involved in Sampson's case, implied bias has not been established. See Sanders, 529 F.3d at 792-93; Person, 854 F.2d at 664. Because G gave inaccurate answers, the McDonough test applies. See McDonough, 464 U.S. at 556, 104 S.Ct. 845; DeBurgo, 587 F.3d at 72; Crowley, 303 F.3d at 408. However, because G was not dishonest in responding to any questions, his inaccurate answers do not provide a justification for granting a new trial. See McDonough, 464 U.S. at 556, 104 S.Ct. 845; Crowley, 303 F.3d at 408; Amirault, 968 F.2d at 1405.
As Sampson has failed to meet his burden to prove by a preponderance of the evidence that G was not an impartial juror due to actual bias, implied bias, or under the McDonough test, Sampson is not entitled to a new trial based on G's service as a juror.
Sampson asserts that he is entitled to a new trial because inaccurate responses by C, D, and G deprived him of his right to exercise his peremptory challenges on a properly informed basis. However, in the context of a juror's inaccurate responses to questions on voir dire, mere injury to the ability to exercise peremptory challenges properly is not a ground on which a new trial may be granted. See McDonough, 464 U.S. at 556, 104 S.Ct. 845.
In McDonough, the court of appeals had held that a new trial was necessary to remedy the prejudice to plaintiff's right to peremptory challenges due to a juror's failure to give an accurate response during voir dire. Id. at 549, 104 S.Ct. 845. The Supreme Court explicitly rejected the contention that a court should "wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination." Id. at 555, 104 S.Ct. 845. Accordingly, the Supreme Court has ruled that injury to the ability to exercise peremptory challenges caused by inaccurate responses in voir dire does not constitute a cognizable basis for granting a new trial. See id.; Jones, 311 F.3d at 314 n. 3; Zerka, 49 F.3d at 1185 ("The Supreme Court in McDonough explicitly rejected the argument that a plaintiff who is prevented from intelligently utilizing his peremptory challenges is entitled to a new trial...."); see also Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 1455, 173 L.Ed.2d 320 (2009)(holding erroneous denial of a peremptory challenge by a state court did not amount to a federal constitutional violation); Martinez-Salazar, 528 U.S. at 316, 120 S.Ct. 774 (holding that a conviction should not be reversed where a defendant was permitted the correct number of peremptory challenges, despite the fact that one of the jurors only remained in the venire because the trial court had erroneously denied a motion to excuse the juror for cause).
Sampson's claim concerning peremptory challenges relies on Colombo, 869 F.2d at 151. However, in that case, although the Second Circuit noted that incorrect responses in voir dire could result in prejudicial harm to the exercise of peremptory
Accordingly, this court concludes that denial of the ability to exercise peremptory challenges intelligently due to a juror's erroneous responses during voir dire is not a basis for granting a new trial.
In view of the foregoing findings of fact and conclusions of law concerning C, Sampson has proven Claim IV of his Amended § 2255 Motion. He is, therefore, entitled to a new trial to determine whether the death penalty is justified. However, because it is not clear whether it is necessary to resolve the remaining claims in Sampson's Amended § 2255 Motion, or whether the court must decide whether to issue a Certificate of Appealability regarding Sampson's claims for dismissal, the court is not now entering a final order granting § 2255 relief. Rather, in a separate order, the court is directing the parties to confer and inform the court of their positions concerning how this matter should proceed.
This redacted version of the October 20, 2011 Memorandum and Order on Jury Claim shall be filed for the public record.
128 F.3d at 47 n. 12.
DeBurgo articulates the McDonough test and then states that "the defendant has `the burden of showing that the juror was not impartial and must do so by a preponderance of the evidence.'" 587 F.3d at 71 (quoting Commonwealth v. Amirault, 399 Mass. 617, 626, 506 N.E.2d 129 (1987)). Although the government does not make this argument, the court notes that the Supreme Judicial Court's decision in Amirault, which was cited in DeBurgo, suggests relief is only available when the moving party proves actual bias. See 399 Mass. at 625, 506 N.E.2d 129. However, DeBurgo did not cite the Supreme Judicial Court decision for this proposition. See 587 F.3d at 71. DeBurgo cited the state court's decision in Amirault only for the proposition that a defendant must prove a juror was not impartial. See id. As explained in this Memorandum, satisfying the McDonough test is one way in which a party may prove a juror was not impartial.
In Dall, the First Circuit stated that "a party seeking a new trial based on nondisclosure by a juror must `demonstrate actual prejudice or bias.'" 970 F.2d at 969 (quoting Aponte-Suarez, 905 F.2d at 492)(emphasis added). This statement, however, does not refer to cases where jurors provide inaccurate answers, to which McDonough applies.
The Fourth Circuit's analysis of the motive prong in Conaway arguably requires a motive for dishonesty that proves actual bias or implied bias, although the Fourth Circuit did not articulate the concept in precisely those terms. See 453 F.3d at 585 & n. 20, 588-89. If this is an accurate reading of Conaway, this court respectfully disagrees with its reasoning.
The questions regarding religion and employment by the federal government were material. C's dishonest responses to those questions were relevant to assessing her credibility and her reasons for answering other questions inaccurately. However, the court does not consider these two dishonest responses to be important to the overall legal analysis of Sampson's claims because, in contrast to C's many other dishonest answers, the information concealed would probably not alone have produced a valid basis for a challenge for cause if discovered during voir dire. See McDonough, 464 U.S. at 556, 104 S.Ct. 845.
Proposed Findings of Fact and Rulings of Law of the United States (Docket No. 1184) at 53. The court's findings concerning C's conduct after the jury returned its verdict in December, 2003, are relevant to the government's argument concerning her alleged actual bias. They are also relevant generally to her credibility. However, as these events occurred after the verdict and, therefore, could not have been the subject of dishonest answers to voir dire questions, these facts have not been considered by the court as a possible basis for relief under McDonough. See McDonough, 464 U.S. at 556, 104 S.Ct. 845 (to obtain McDonough relief "a party must first demonstrate that a juror failed to answer honestly a material question on voir dire"); Stewart, 433 F.3d at 304 (in applying McDonough analysis, court must "`determine if it would have granted the hypothetical challenge'" to a juror for cause (quoting Greer, 285 F.3d at 171)).
Aug. 8, 2011 Tr. at 39.
