Mr. Smith was convicted at jury trial of Rape of a Child in the First Degree. During jury selection, Mr. Smith’s counsel sought removal of a prospective juror, using a ‘for cause’ challenge, claiming that actual bias was present. The prospective juror indicated during voir dire she might be inclined to simply agree with other jurors if she was “on the fence “as to a verdict. She admitted she was “not a confrontational person”.
The trial judge, after a cogent colloquy with defense counsel, denied the
‘for cause’ challenge and the juror sat on Mr. Smith’s jury, which returned a unanimous guilty verdict. The Court of Appeals reversed, finding the juror indeed exhibited actual bias and was not fit to serve. The Supreme Court accepted review by the State on one issue: “whether, on the strength of the juror’s statements alone, the juror so clearly demonstrated a likelihood of actual bias that no reasonable judge could have found [the juror] capable of following the law and trying the case impartially.”
Wow! As my dad used to say, “if you put it that way, how can I disagree?” The Supreme Court (‘SC’) reversed the Court of Appeals and reinstated Mr. Smith’s verdict.
The SC clearly indicated it was not going to second guess or ‘armchair quarterback’ a trial judge who is in a unique position to hear and observe a potential juror. This potential juror (‘VP 27’) indicated in her questionnaire that jury service could pose an economic hardship to her particular employment, which may force her to work weekends. Defense counsel asked:
Q. So if you were told that the verdict has to be unanimous, and let’s say you are the only person who disagrees with the rest of the group, everybody else is going guilty or not guilty, would you be tempted in order to finish deliberations so that you could get back to work to change your vote to whatever the rest of the group thinks, even if you personally didn’t feel that way?
A. If I was 100 percent very confident, then no. But if I was, like, I believe this evidence or whatever, but I am kind of like, on the fence, then I may agree with everyone.
Q. Okay. Is that just something that you would do no matter what, or would that be related to you trying to get back to work?
A. Probably both or – yeah. I mean, I am not a confrontational person. I don’t think I would, like, fight really hard if I, like, was on the fence about it.
The trial judge, ruling on juror challenges, states she didn’t see a bias to exclude VP 27, either for hardship or for cause. Defense counsel strongly objected:
If [VP 27] is willing to just go along with the group of guilty when she doesn’t really think the case is going to be beyond a reasonable doubt was my determination of what she said just because she is not a confrontational person, I think that is a bias to excuse for cause.
Court. I hear you…but she…has not heard any evidence…she made it clear if she felt strongly about the evidence…100 percent…we both heard what she had to say. You have made your motion. I have denied it.
The SC reversed, holding that there was no “actual bias”, which is statutorily defined as:
The existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the rights of the part challenging. RCW 4.44.170(2) [Emphasis added.]
The SC relied on “great deference” to the trial court assessment of bias, reversible only if there is a “manifest abuse of discretion”. The SC cited language on the abuse of discretion standard and significant deference to the trial judge in State v Noltie 116 Wn. 2d 831, at 839 (1991). In Noltie, the holding was “trial judges are in the best position to determine a jurors ability to be fair and impartial because they can observe the demeanor of the juror and evaluate and interpret the responses.” There was no “unequivocal” statement by VP 27 statements indicating bias. The SC recognized that unequivocal statements indicating bias, without a subsequent assurance of impartiality, can establish actual bias because “no nuance of inflection or demeanor can overwhelm the explicit meaning of an unequivocal statement of partiality”. The SC cited State v. Booth 24 Wn. App. 586,600 (2022) for this distinction.
The SC also recognized that a juror’s equivocation during voir dire, combined with objective factors, could support actual bias. A juror was equivocal in his response in a DUI trial, and was a member of Mothers Against Drunk Drivers. Cheney v. Greenwald 55 Wn. App. 807,811 (1989).
What trial lawyers should take away from Mr. Smith’s dashed hopes (his conviction was reinstated) is the SC’s assumption that “trial judges carefully assess the juror’s statements…given the nuanced nature of this experience…appellate review is appropriately restrained.”
VP 27’s equivocation here wasn’t clear: she stated she would not change her vote if she was ‘100 percent very confident’, but might do so if she was ‘on the fence’. The Defense argued this comment shows the State had necessarily failed to satisfy its burden of proof in this jurors mind. This writer believes being ‘on the fence’ could arguably indicate an open mind and willingness to listen to other jurors.
The SC recognized and adopted the dissenting opinion from the Court of Appeals, where Judge Feldman states that “although [VP 27] admitted she was ‘not a confrontational person’ and that if she was on the fence, she may agree with everyone and she did not think she would fight really hard…she had not [said] that she definitely or probably would agree with everyone.
Simply put, VP 27’s literal words did not convey unequivocable bias, or were statements showing actual bias. “May” or “think” are equivocal words, but do not, in this writer’s opinion, demonstrate actual bias when left alone. Trial judge’s observations will be given HUGE deference in such cases, and Mr. Smith’s trial judge did not abuse her discretion.