6th. Circuit Child Pornography/Biased Juror Remand

The Sixth Circuit Court of Appeals in remanding a Youngstown Northern District child pornography case last Tuesday centering on a juror’s admitted probable inability & reluctance to view physical evidence related to the case, held in pertinent parts…  [USA v. Trent Shepard , Case 11-4399]

A juror’s verdict must “be based upon the evidence developed at the trial . . . regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). The question of whether a trial court has seated a fair and impartial jury “is essentially one of credibility,” and “the trial court’s resolution of such questions is entitled, even on direct appeal, to ‘special deference.’” Patton v. Yount, 467 U.S. 1025, 1038 (1984) (citation omitted). As this court has held, even a juror’s expressed doubts about his or her impartiality “does not necessarily entail a finding of actual bias.” Hughesv. United States, 258 F.3d 453, 458 (6th Cir. 2001). As examples, the court inHughes cited Patton, 467 U.S. at 1032, Murphy v. Florida, 421 U.S. 794 (1975), United States v. Rigsby, 45 F.3d 120 (6th Cir. 1995), and United States v. Pennell, 737 F.2d 521 (6th Cir. 1984), all cases in which at least one juror initially expressed preconceived notions regarding a defendant’s guilt or in which other information known by the jurors might have cast doubt on their ability to render an objective, impartial verdict. In this case, the district court exercised its discretion to hold that the circumstances did not require a mistrial, once the court had seated the juror in question and the jury had been sworn…”


“… Absolutely nothing in the appellate record indicates that Juror 29’s innocuous comments to the other juror that “it would be a rough day” or that he was not sure he would “be able to view those pictures” resulted in prejudice so obvious that we should find an abuse of discretion by the district court in holding otherwise. In fact, the questioning during voir direand the statements made by defense counsel during opening argument indicated that the images and videos to be presented to the jury were “horrendous,” “disgusting,” could make one sick to one’s stomach, and make the case “so difficult.” Against such a backdrop, Juror 29’s comments to the other juror did not inject any information or context into the trial or into the jury room that was not already conceded by the defendant himself…


“On the other hand, it is equally clear that Juror 29 should not have been permitted to sit on Shepard’s jury. There was, for example, no effective rehabilitation of Juror 29 in this case. He had responded honestly to a jury questionnaire by admitting that “the fact that the defendant is charged with crimes involving sexually explicit materials [would] cause [him] to be predisposed either for or against the defendant or the government.” He followed up that admission during voir dire by stating that “just the nature of the case” would cause him to view the defendant in a different light. It is true that the district court then elicited from Juror 29 responses indicating that, if chosen as a juror, he would “accept the responsibility to decide the facts in dispute” and would “follow the law as [the judge] instruct[ed].” Juror 29 also claimed that he did not “know of any reason why [he] could not be fair and impartial in this case” and was, therefore, accepted and sworn in as a juror. Subsequently, however, he informed the district court that further reflection led him to the inevitable conclusion that, in fact, he could not fulfill all the responsibilities imposed upon him as a juror in this case…”


“In his memorandum opinion explaining why he did not excuse Juror 29 from the panel, the district judge rationalized that it was not necessary for the juror to observe the pornographic images because neither party disputed that the images and videos should be classified as child pornography. Therefore, the district court concluded, the jury’s primary function in this prosecution was to determine only whether Shepard  knowingly accessed those images and videos, an exercise that the court apparently thought would not require viewing the visual evidence. On one level, that decision is understandable….


“…Nevertheless, the role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court. Rather, in a criminal trial, the judge is entrusted with the responsibility of ensuring that the constitutional rights of the accused are safeguarded from the whims of public opinion, prejudice, and expediency. Here, despite his earlier pronouncement that he could be fair and impartial in serving on Shepard’s jury, Juror 29 later informed the court that he had serious doubts about his ability to do so. Although the district court sought to frame those doubts merely in terms of an ability to view certain evidence, Juror 29’s’s comments on the morning that evidence was actually presented were much more troubling. In fact, when asked by the prosecutor whether he could carry out his obligation “so that the government and the defendant can both have a fair and impartial jury,” Juror 29 responded that he wished he could but did not think he would be able to do so. Instead, he expressed without qualification his belief that child pornography was evidence of “the lowest part of humanity” and is “just disturbing.” He concluded his explanation by reiterating that he had stated on the jury questionnaire that he would be prejudiced against the defendant because of Shepard’s alleged contact with child pornography and that it would be difficult for him to overcome that prejudice… “


“In light of this evidence of bias and inability to follow the dictates of the oath, we conclude that the district court did abused its discretion in denying Shepard’s request to have Juror 29 removed from the jury. In order to preserve the sanctity of the defendant’s Sixth Amendment right to be tried by a fair and impartial jury, it thus becomes necessary to reverse the defendant’s conviction, vacate his sentence, and remand this matter to the district court for a new trial. See id. at 463 (“Failure to remove biased jurors taints the entire trial, and therefore . . . [the resulting] conviction must be overturned.” (citation omitted)).”



Law.com/National Law Journal has a subscription-access article on the case this morning as well.