Friday, August 3, 2018

Trial court removes juror from case because he cannot read nor write

A jury of your peers sounds nice, but they are not really your "peers." They are people who swear they can be fair, who do not know any of the parties of witnesses, do not have any felony convictions and can read and write English. In this case, the trial court dismissed a juror mid-trial upon learning the juror was not able to read or write. The criminal defendant appeals from that ruling, claiming it denied him a fair trial. The Court of Appeals does not agree, and the conviction stands.

The case is United States v. Iverson, issued on July 31. I wrote about the search and seizure issue at this link. On that issue, the trial court found, and the Court of Appeals agreed, that the search of defendant's apartment which revealed drugs was legal. Once the case went to trial, during jury selection Prospective Juror 16 said during voir dire that he looks at magazines but that he is not "really a good reader." He also said he can sometimes make out what the stories are about. The government wanted to excuse Number 16 from the trial because he fell asleep during jury selection, but the trial court upheld defendant's Batson objection and said if the juror fell asleep during trial that would be "easily corrected" and that while the juror was uneducated, "he seemed to be bright . . . and he impressed me as being able to grasp the facts." (A Batson challenge alleges the government is trying to eliminate a juror because of his race).

Once the trial started, however, the court's jury administrator told the judge that Number 16 may not have completed his juror questionnaire. When the judge questioned the juror about this, he said his wife filled out the form because he was unable to do it. Once the judge determined the juror cannot read or write, he excused Number 16.

The Court of Appeals notes that federal jurors must be able to understand the English language sufficient to complete the questionnaire, which means that an illiterate juror cannot be empaneled. The problem here is that the trial court questioned the juror outside the presence of the parties, and there is no indication the parties consented to the court's decision to immediately dismiss the juror following the ex parte conversation about his literacy. Despite that procedural error, defendant does not get a new trial. The Court of Appeals (Kearse, Calabresi and Livingston) applies the harmless error rule, as the trial court properly found the juror could neither read nor write and that the information this juror provided to the court on this issue compelled the court to dismiss the juror from the trial.

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