EDITORIAL

A Wider Discretion of Trial Judges to Exclude Jurors

By William F. Gallagher

Judicial decisions in dealing with a challenge for cause for bias is frequently a close call. The line between opinions, impressions, and predispositions that can be "put aside" and a fixed and abiding prejudicial bias mandating an excuse for cause is often very blurry. We are all, plaintiff, defendant and the court, interested in a fair and impartial jury. Generally there are plenty of jurors to draw from. We have in the past wondered why, when in doubt, a judge should not exercise discretion in favor of a fair and impartial jury, notwithstanding that the juror insists that he or she can "put aside" the articulated predisposition? (13 Forum 71 1995). Many judges believe that they can’t excuse for cause if the prospective juror says that the offending opinion or predisposition can be "put aside." Can a judge "infer" bias notwithstanding the protestations of fairness from the venireperson?

This issue was squarely addressed in U.S. v. Torres, supra, by a three judge panel(Calabresi, Kearse and Newman) of the Second Circuit in a money laundering case. In a landmark ruling giving trial judges wider discretion to excuse prospective jurors for cause, the Court ruled that "inferable bias" can be a reason for excluding a juror.

The bias may be "inferred" when a juror "discloses a fact that bespeaks a risk of partiality sufficiently significant" to allow the trial judge "to excuse the juror for cause, but not so great as to make mandatory a presumption of bias," wrote Judge Guido Calabresi, writing for a unanimous panel.

In the case before the court, defendants Rivera and Devery had been charged with conspiring to launder the proceeds of a heroin trafficking scheme. The government claimed that Rivera, a lawyer, helped a real estate developer launder the money, while Mr. Devery, a bank officer, opened various accounts to facilitate the deposits of large sums of cash. During jury selection, juror #7 indicated that she had worked in the payroll department of a business and in order to avoid making federally required reports on transactions of more than $10,000, made out checks of lesser amounts rather than one check for a sum greater than $10,000 which would have required reporting. This activity, explained the juror, was only done for two or three weeks before the company changed its payroll system.

The trial judge had not asked the juror whether she could put this experience aside and decide the case impartially. The Second Circuit held that the trial judge did not have to ask that question. It ruled that a court may in its discretion infer, from a disclosed fact that creates a risk of partiality, that prospective jurors would be biased and, as a result, excuse them without expressly inquiring into their ability to decide the case impartially.

In Johnson v. New Britain General Hospital, 203 Conn. 570 (1987), the juror, a retired dentist with an articulated antagonism against malpractice cases who claimed that he could put it aside, was the foreman of the jury. A defendant's verdict was returned. The plaintiff in that case will never believe that he was granted a fair trial and will never know if the case was lost on the merits, or whether the dentist was unsuccessful in "putting aside" his "antagonism."

The trial judge in Johnson had agonized over the plaintiff’s claim that the juror should be excused for cause. The plaintiff was out of challenges and the importance of the issue was not lost on the trial court. In making its ruling the court stated (203 Conn. at 578 n. 8):

It seems clear that the retired dentist disclosed the fact that "bespeaks of a risk of partiality" that is sufficiently important to warrant granting the trial judge the discretion to excuse the juror for cause even though the trial judge would not be able to make a finding that there was pervasive bias on the part of the prospective juror.

Supposing that a prospective juror had herself been a plaintiff in a malpractice case, had been disgusted with the care she received from her physician and appalled by her experience in the hospital, and a physician and hospital were defendants in the malpractice case on trial. Notwithstanding this, the juror insists that she could "put aside" these feelings and listen to the case and decide it based on the evidence and applicable law. Why take a chance? Even though the juror insists that she can put it aside, the court is not bound by the juror's statement. In Johnson the juror repeatedly stated that he could be fair and impartial. The Supreme Court stated (203 Conn. at 584):

The Supreme Court, in effect, shifted the issue back to the exercise of discretion of the trial judge. That discretion is exercised based on the credibility of the juror, the importance of this predisposition or bias to the juror and the case, leading to an assessment by the trial judge whether it is an opinion or predisposition that can be "put aside" or whether it is a fixed and abiding prejudicial bias mandating an excuse for cause. The questioning that goes into this determination usually takes no more than five minutes, and frequently doesn't clear the doubt about jurors' ability to put the opinion, antagonism, attitude, or bias "aside." The risk is an unfair juror, which leads to an unfair jury. A wrong decision casts a shadow over the entire proceeding. The Second Circuit has provided a sensible answer: The trial judge has discretion to excuse for cause even though the juror claims the bias can be put aside, and even though the bias of the prospective juror is not certain.