Henry C. Miller v. Rod Francis, Warden

BOYCE F. MARTIN, Jr., Chief Judge,

dissenting.

DISSENT

The majority today affirms as “reasonable trial strategy” a defense attorney’s decision to retain a juror who demonstrated both a presumed and an actual bias against the defense during her voir dire examination. Even assuming such conduct could be considered reasonable strategy in the abstract, it certainly was not here, where Attorney Shirk’s articulated justification for failing to excuse Furrow from the petit jury bears no logical connection to his defense strategy. Because I believe that the majority opinion unreasonably applies Strickland by divorcing Shirk’s professed strategy during voir dire from his defense theory, I respectfully dissent.

I.

Wolfe dealt with presumed bias, and I would have no trouble presuming bias on the part of Furrow in light of her relationship with Williamson, her previous discussion of the case with Williamson, her insistence that Williamson would attempt to discuss the case with her during the trial, her clear discomfort with sitting on the jury, and her inability to give an unqualified guarantee that she could be a fair and impartial juror. The right to a jury trial “guarantees to the criminally accused a fair trial by a panel of impartial ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961). In determining whether a juror meets this standard, we must ask, “did a juror swear that he could set aside any opinion that he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed?” See Patton v. Yount, 467 U.S. 1025, 1036 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984). In Wolfe, we granted a habeas petition partly on the grounds that the trial court’s refusal to dismiss for cause two jurors who had “close and ongoing” relationships with the victim’s parents violated the defendant’s Sixth Amendment right to an impartial jury. See Wolfe, 232 F.3d at 502. The first juror had an ongoing professional relationship with the victim’s parents and gave only tentative assurances that he could be a fair and impartial juror. See id. We found that the juror should have been *622 dismissed for cause on those grounds. The second juror had a close, ongoing relationship with the victim’s parents and knew the parents’ theory of their son’s death. Even though the juror definitively stated that she could nonetheless remain impartial, we found those statements untenable in light of her connection to the victim’s parents and her knowledge of their theory of the crime. See id. In doing so, we noted that “[a] court’s refusal to excuse a juror will not be upheld simply because the court ultimately elicits from the prospective juror a promise that he will be fair and impartial.” Id. (internal quotation marks and citation omitted).

Like the relevant tainted Wolfe jurors, Furrow was involved in a close and ongoing relationship with Williamson — the victim’s mother and a witness for the prosecution. Furrow had discussed the case with Williamson and knew her version of what happened to her son. 1 In addition, Furrow expressed concerns that she would be forced to discuss the case with Williamson during trial. The majority acknowledges Furrow’s relationship with Williamson, but states that Furrow did not indicate that she and Williamson shared a “friendship or strong personal bond.” Wolfe of course does not require that a relationship be personal, only that it be close and ongoing, as Furrow and Williamson’s was in this case. Welfare caseworkers counsel their clients on a regular basis. Here, in fact, Shirk asked Furrow why Williamson felt free to discuss her personal problems with Furrow: “And because, because of [your relationship as caseworker and client], she can call you with any problem she has?” Furrow responded, “Correct. A lot of people do.” J.A. 648. I simply do not agree that the caseworker/client relationship is so distant that a caseworker could vote to acquit the man accused of raping her client’s child without being conflicted as a result of her professional responsibilities to her client. At the least, a caseworker must not emotionally harm her client. Moreover, I think it entirely reasonable to conclude that in light of a caseworker’s professional obligations to the well-being of her client, it would take more to convince her to vote to acquit her client’s child’s attacker than it would any other, truly neutral member of the jury. It was exactly this type of actual external conflict, which in practice manifests itself as bias against the defense, that led us to find constitutional error in Wolfe. See also Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) (approving of a finding of ineffective assistance when attorney has conflict of interest). I see no reason to reach a different outcome here.

The majority acknowledges that “Furrow expressed some discomfort about sitting on the jury” and that she hesitated in responding to some of the questions concerning her ability to be fair and impartial. Maj. Op. at 617-18. Nonetheless, it finds that “we are not compelled to find that Furrow was presumptively or actually biased,” because Furrow never expressly stated she could not be fair. Of course, our duty is not to affirm the seating of a juror absent express statements of bias, but rather to ask whether “a juror [swore] that he could set aside any opinion that he *623 might hold and decide the case on the evidence,” and whether the juror’s protestation of impartiality should have been believed. Patton, 467 U.S. at 1036 , 104 S.Ct. 2885 . The majority is correct that Furrow never explicitly stated that she could not be fair. Instead, she said things like, “I— it’s tough. I think I could be fair,” and “How do I know if bias — I guess I just know Cordia,” and “I know she’s going to be calling me, you know. I guess I will just listen to both sides.” I do not agree with the majority that these tentative statements “cannot necessarily be construed as equivocation” because many jurors would respond similarly when questioned about their ability to be fair. Even assuming Furrow’s statements would be sufficient standing alone, I read Wolfe to stand for the proposition that such tentative statements from a juror who is engaged in 1 a close, ongoing relationship with a victim’s parent and who has obtained information about the instant crime from that parent will simply not be sufficient to justify the inherent risk seating them will pose to the defendant. I would therefore find that Furrow was so presumptively biased that she simply could not function as the type of neutral juror that Miller is guaranteed by our Constitution.

II.

Of course, had Shirk articulated some reason for retaining Furrow as a juror in spite of her presumed bias, one which bore a logical relationship to his defense strategy, that would preclude a finding of ineffective assistance. See Cone v. Bell, 243 F.3d 961, 978 (6th Cir.2001) (finding ineffectiveness where counsel’s strategy could not logically have achieved professed goal). We must evaluate Shirk’s performance from his perspective at the time of voir dire and must make every effort to “eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 . Here, both voir dire and the trial occurred on March 23, 1993. I think it is appropriate in this circumstance to assume that Shirk formulated his defense strategy by the trial date, and to therefore assess his justification for his actions during voir dire in light of his overall defense strategy. Shirk testified at the evidentiary hearing that he believed Furrow’s familiarity with Williamson meant that she must know that Williamson is a difficult and often dishonest person, that she would be less inclined to credit Williamson’s testimony, and that she would therefore be more sympathetic to Miller. Although the state trial court that heard Shirk’s testimony found it less than credible and granted Miller’s habeas petition, the Ohio Court of Appeals overturned that decision as an abuse of discretion.

The majority now accepts Shirk’s testimony as sufficient to show that he retained Furrow as a juror pursuant to a reasonable trial strategy. Notably absent from both Shirk’s explanation and the majority’s opinion, however, is how or why Williamson’s credibility was relevant to the defense. Perhaps if Williamson herself had reported the rape or participated in the subsequent investigation, her credibility would have been relevant enough to conceivably effect the prosecution’s case. The undisputed facts establish, however, that a third party reported the sexual contact between Miller and Williamson’s son, that Williamson learned about the allegations days later during the course of the investigation, and that she knew nothing about, and therefore could not provide evidence of, either the crime or its attendant circumstances. A telling indication of how unimportant Williamson’s credibility was to this case is Shirk’s utter failure to make it an issue at trial. His entire defense strategy was to challenge Williamson’s son’s credibility, yet Shirk never men *624 tioned even considering Furrow’s opinion of the son when he decided to retain her as a juror.

Moreover, even if it was analytically proper to divorce Shirk’s professed voir dire strategy from his trial strategy, Shirk failed to ask any questions of Furrow during voir dire to determine her opinion of Williamson. As the majority recognizes, one of “the most essential responsibilities of defense counsel is to protect his client’s constitutional right to a fair and impartial jury by using voir dire to identify and ferret out jurors who are biased against the defense.” Maj. Op. at 615. It also cites our observation in Blount that “[t]he primary purpose of the voir dire of jurors is to make possible the empaneling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel.” United States v. Blount, 479 F.2d 650, 651 (6th Cir.1973) (citations omitted). Even assuming that it was reasonable for Shirk to choose to attack the credibility of a witness for the prosecution by retaining a juror who had an ongoing professional relationship with the witness (who was also the mother of the victim), had discussed the crime with the witness, and would likely converse with the witness during the trial, I question whether it would have been “reasonable trial strategy” to fail to determine whether Furrow in fact held the opinion of Williamson that he claimed justified leaving her on the jury. 2 For the retaining of a tainted juror to be “reasonable,” an attorney must take some steps during voir dire to determine whether the taint will predispose the juror to decide the case in a way beneficial (or at least not harmful) to his or her client. Here, it was unreasonable for Shirk to purposefully allow a tainted juror to sit without even attempting to use voir dire to ascertain whether she would in fact be helpful to his client. Therefore, even if Shirk was correct in believing that Furrow found Williamson to be generally dishonest, and even if allowing a tainted juror to sit may be a “reasonable strategic choice” in the abstract, and even assuming Williamson’s credibility played a part in Shirk’s overall trial strategy, it was unreasonable for Shirk not to take the necessary steps to assure that any benefit of the taint would cut in Miller’s favor.

III.

The foregoing demonstrates the bias that I think Wolfe requires us to presume upon evidence of both a close, ongoing relationship with the members of a victim’s immediate family and a discussion between the potential juror and the family member about the instant crime. Even without Wolfe, however, I would grant Miller’s petition because Furrow’s statements during her voir dire examination conclusively showed a predisposition to reject the entire defense. In other words, I think Furrow’s voir dire answers demonstrated actual bias against Miller’s defense, and therefore, I cannot agree with the majority that Shirk’s decision to leave her on the jury constituted reasonable or even rational trial strategy.

The majority finds no problem'with Furrow and Williamson’s prior contact because “Williamson only told Furrow over *625 the phone that her son had been raped and provided no further details.” Maj. Op. at 619. Had the defense focused on a claim of mistaken identity or some sort of affirmative defense, Furrow’s lack of knowledge about the details of the crime may well have been dispositive in determining that she was not in fact biased by her conversation with Williamson. Here, however, Miller’s defense was not that someone else raped Williamson’s son, but that no rape ever occurred. As the majority acknowledges in its recitation of the facts, Furrow repeatedly made comments during voir dire showing her belief that Williamson’s son had in fact been raped: “[Williamson] had called me very upset and said that this had happened. But no names were used. But I was aware that it had happened.” Furrow described her conversation with Williamson in the following ways: “So it was just the listening that this had happened to him and what it was doing to her household; ” “... she would not be able to make [a scheduled meeting] for some reason because she said that she, that this had happened and she’s having a very hard time.” In response to Shirk’s question regarding what Williamson told Furrow, Furrow stated, “Just that she was having a very hard time. [Her son] had been raped, and that she was trying to go through it with him.” Shirk followed up with, “Did she tell you how she found out [her son] had been raped?” Furrow responded, “No. She didn’t go into that. Just that he had been.” In other words, Furrow both indicated both that she had formed a belief that Williamson’s son had been raped and that she had formed that belief as a direct result of her conversation with Williamson. I simply cannot agree with the majority that the fact the Furrow did not obtain any details about the crime is even relevant, let alone dispositive, in this case where the one piece of information Furrow did obtain, that Williamson’s son was touched sexually, was the only issue raised at trial by the defense.

In sum, I believe that the Ohio Court of Appeals’s determination that Shirk’s performance was not constitutionally deficient was an unreasonable application of the first prong of Strickland . That court credited Shirk’s articulated trial strategy without discussing either the means Shirk employed in achieving his goal, or whether that goal was reasonable in light of his overall defense strategy, and the majority today compounds that error by repeating it. Cf. Cone, 243 F.3d at 978 (“the noun ‘strategy’ is not an accused lawyer’s talisman that necessarily defeats a charge of constitutional ineffectiveness”). Although Strickland does require that we indulge a strong presumption that Shirk’s conduct was reasonable, see id. at 689, 104 S.Ct. 2052 , in this case the evidence shows that Shirk’s strategy was illogically determined and deficiently pursued. Under Wolfe, the failure to remove a juror who had a close and ongoing professional relationship with the victim’s family and who knew the family’s theory of the crime results in a violation of the Sixth Amendment right to an impartial jury. In this case, where the juror in question not only possessed the same deficiencies we deemed dispositive in Wolfe but also showed actual bias in the form of a predisposition to reject the entire defense theory, Shirk’s failure to protect that right constituted deficient performance. Like the state trial court that heard this habeas claim in the first instance, I would grant Miller’s petition.

. The majority attempts to distinguish Wolfe factually on the grounds that, here, "Furrow possessed very little knowledge of the case as a result of her prior contact with Williamson.” Maj. Op. at 619. In Wolfe, we did not discuss the quantum of information each juror had received. Rather we focused on the information's source and subject matter: that it came directly from the victim’s parents and that it addressed the crime at issue. The majority's distinction between the amount of information received in this case and that received in Wolfe is thus irrelevant.

. Shirk testified at the evidentiary hearing that “I got the impression in talking with her, and I know that she would perhaps bend over backwards to be fair to Henry, or to my client in this case.” Nothing in the voir dire transcript, however, supports that impression, and Shirk could not recall what gave him the idea that she would labor to be fair to Miller. It was, therefore, unreasonable for both the Ohio Court of Appeals and the majority to credit that testimony over the voir dire transcript, particularly when the trial court that actually heard Shirk’s testimony found his assertions incredible.