Petition for Writ of Certiorari — Amirault v. Fair

upreme Court, U.S,

FIRED

‘| OCT 6 1992

DFFICE OB THE CLERK |

eee eee

92-605

In The

Supreme Court of the United States

October Term, 1992

¢

GERALD AMIRAULT,

Petitioner,

MICHAEL FAIR,

COMMISSIONER OF DEPARTMENT

OF CORRECTIONS,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

¢

PETITION FOR WRIT OF CERTIORARI

é

JULIANE BALLIRO

BALLIRO, MONDANO & Ba tiro, P.C.

Three Arlington Street

Boston, MA 02116

(617) 227-5822

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a juror’s failure to disclose on voir dire

examination that she had been a victim of a crime similar

to the crime with which petitioner was charged presented

an extreme circumstance warranting a finding of implied

bias and operated to deprive petitioner of his Sixth

Amendment right to an impartial jury.

TABLE OF CONTENTS

Page

Chaestion. Peesewted ...6vosss5si45 550 004e eee eee i

(Jpeions DEO... . ..ess ees ce eces a eee 1

DUPAREINCTIOND. 5a a nc cc cas veces caesneeie see 1

Constitutional Provision Involved.................. 1

Statement of fhe COM 5 ..65i40i5as saan eee 2

Reasons for Granting the Writ..................... 5

I. THE FIRST CIRCUIT COURT OF APPEALS

FAILED TO APPLY THE PRECEDENT OF THIS

COURT ON THE QUESTION OF JUROR BIAS.. 6

II. THIS CASE PRESENTS AN OPPORTUNITY

FOR THIS COURT TO DEFINE THE EXTREME

CIRCUMSTANCES WARRANTING A FINDING

OF EMPLIGN GEAG: . ..6 5ccs. case sen wens 8

Il. THE COURT OF APPEALS DECISION DOES

NOT COMPORT WITH THE PRECEDENT OF

OTHER COURTS ON THE ISSUE OF IMPLIED

OAD os eck ins nccaaviae svete ene PROSE ee 11

TABLE OF AUTHORITIES

Page

Cases

Commonwealth v. Amirault, 399 Mass. 617, 506

8 ae 1,9

Jackson v. United States, 395 F.2d 615 (D.C. Cir.

UE Gch SEARED R AEA LOO WK OCR NA ON OOeD 12

McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548, 104 S.Ct. 845 (1984)........... 5, 6, 7, 8

Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885 (1984) ..... 7

Person v. Miller, 854 F.2d 656 (4th Cir. 1988), cert.

ee a | nner 10

Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940 eae”

isa ae had vabae cease kaeen 6, 9, 11

Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990), cert.

ae a Se? Ge) ) 10, 12, 13

United States v. Allsup, 566 F.2d 68 (9th Cir. 1977) .10, 11

United States v. Bynum, 634 F.2d 768 (4th Cir. 1980) .... 11

United States ex rel. DeVita v. McCorkle, 248 F.2d 1

(3rd Cir.), cert. denied 355 U.S. 873, 78 S.Ct. 121

Ne re tae p Gah aaa peas vs east astns ques 9, 12

United States v. Ferri, 778 F.2d 985 (3rd Cir. 1985)..... 9

United States v. Perkins, 748 F.2d 1519 (11th Cir.

United States v. Scott, 854 F.2d 697 (5th Cir. 1988) .... 10

Virgin Islands v. Bodle, 427 F.2d 532 (3rd Cir. 1970) .... 12

iv

TABLE OF AUTHORITIES —- Continued

Page

OTHER AUTHORITIES CITED:

Massachusetts General Laws c. 265, Section 23....... 4

Title 28, United States Code, Section 2254............ 5

Title 28, United States Code, Section 1254(1) ......... 1

United States Constitution, Amendment Six....1, 2, 11

OPINIONS BELOW

The July 8, 1992 opinion of the United States Court of

Appeals for the First Circuit which is herein sought to be

reviewed is reported in 968 F.2d 1404 (1st Cir. 1992) and is

printed in the appendix of this Petition on page 1. The

opinion of the United States District Court for the District

of Massachusetts is also printed in the Appendix on page

8. The Trial Court’s Memorandum of Decision on Defen-

dant’s Motion for New Trial is unreported and printed in

the Appendix on page 30.

The opinions of the Massachusetts Supreme Judicial

Court are reported in 399 Mass. 617, 506 N.E.2d 129

(1987) and 404 Mass. 1004, 535 N.E.2d 193 (1989) (Com-

monwealth v. Amirault).

JURISDICTION

The judgment of the United States Court of Appeals

for the First Circuit (App.1)* was entered on July 8, 1992.

The jurisdiction of the Supreme Court of the United

States is invoked pursuant to 28 U.S.C., Section 1254(1).

°

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Sixth Amendment to the Con-

stitution of the United States which provides as follows:

* (App. refers to the Appendix attached to the Petition for Writ

of Certiorari).

Amendment VI —- JURY TRIAL FOR CRIMES, AND PRO-

CEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.

+

STATEMENT OF THE CASE

The Petitioner, Gerald Amirault, was convicted on

July 19, 1986 by a Massachusetts state court jury on

multiple indictments charging him with rape and abuse

of a child and indecent assault and battery. Following the

verdict, defense counsel received a telephone call from an

individual who revealed that one of the deliberating

jurors had been raped as a young teenager. The caller

stated that he believed the juror to be the same woman

who accused his cousin of raping her when she was

young. He further indicated that the case had gone to

court and that his cousin had served a lengthy term of

imprisonment.

Defense counsel immediately brought this matter to

che attention of the trial court and the court allowed

counsel to examine the juror’s voir dire responses as well

as conduct an investigation into the rape allegations. A

private investigator spoke with various family members

of the juror who confirmed that she had indeed been

raped and that the offender had been imprisoned as a

result. It became evident that when this particular juror

was asked on voir dire if she or a member of her family

had ever been involved in a civil or criminal case, she

failed to inform the court of her own experience as a

sexual assault victim. (App. 31-32).

On behalf of the petitioner, defense counsel filed a

Motion for New Trial and for Post Verdict Investigation

and Inquiry of a Juror with supporting preliminary mem-

orandum and affidavits. On August 19, 1986, the trial

judge conducted an in camera inquiry of the juror. At this

hearing, initial questioning was done by the court and

then defense counsel was provided with the opportunity

to examine the juror.

The juror testified, in pertinent part, that to her

knowledge she could not remember being the victim of a

crime. But, if something did happen, it had to be over

forty years ago and she must have blocked it from her

mind. Upon further probing she did admit that some-

thing did happen in her life, but she could not recall any

details about it whatsoever. She denied any knowledge of

the nature of the incident or of her age at the time it

occurred. She further denied ever having told anyone

about the incident and claimed that it did not come to her

mind during petitioner’s trial.

At the conclusion of the hearing, a clerk of the trial

court revealed to defense counsel that the juror’s testi-

mony did not comport with information he had received

from her attorney. The clerk had spoken with the attorney

in connection with the post verdict hearing and was

informed that the juror had been the victim of a sexual

assault. The incident was revealed by the juror to her

attorney and then relayed to the clerk less than one week

prior to the hearing where, under oath, the juror claimed

to have no recollection of the event whatsoever.

As a result of this, defense counsel requested leave to

file an affidavit by the clerk and the opportunity to

present additional witnesses in support of their Motion

for New Trial. Counsel specifically requested permission

to offer the testimony of the clerk, who was present in

chambers, as evidence that the juror was not truthful in

her responses at the post verdict inquiry. This request

was denied and on the following day, the court also

denied petitioner’s Motion for New Trial. (App. 30). The

petitioner appealed this decision.

A renewed investigation was permitted by the court

which subsequently confirmed that the juror was indeed

raped on June 29, 1946 by a neighbor whose son she was

babysitting. At the time of petitioner’s trial, the juror

resided within walking distance of her assailant’s home.

She reported the rape to her caretaker and six days later

swore out a criminal complaint in a Massachusetts court

charging the assailant with an offense under Massa-

chusetts General Laws, Chapter 265, Section 23, the very

same offense for which this petitioner was convicted. Two

weeks following the rape, she testified at a probable

cause hearing. After trial, the assailant was convicted and

sentenced to a term of 4 to 6 years in the state prison.

A Renewed Motion For New Trial was subsequently

filed and thereafter denied. On August 19, 1988, the

Massachusetts Supreme Judicial Court took jurisdiction

SR acc ae sme

of the case on its own motion. The Court reaffirmed the

trial judge’s order as well as the convictions on March 6,

1989.

On May 4, 1989, having exhausted all state remedies,

the petitioner filed a Writ of Habeas Corpus in the United

States District Court for the District of Massachusetts

pursuant to 28 U.S.C., Section 2254. The District Court

denied petitioner’s Writ of Habeas Corpus on October 7,

1991. (App. 8). The United States Court of Appeals for the

First Circuit affirmed the district court decision. (App. 2).

¢

REASONS FOR GRANTING THE WRIT

In petitioner’s case, the First Circuit found that a

juror who failed to disclose on voir dire examination the

fact that she was the victim of a similar crime was not

impartial. In applying the standard established in

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.

548 (1984), the First Circuit accepted the trial court’s

determination that the juror had “genuinely blocked from

her conscious mind the memory of the event and that she

therefore answered the voir dire questions honestly.”

(App. 3).

The trial court’s determination was based on the

testimony of the juror and her assertion that something

did happen to her but that she blocked it from her mem-

ory. The trial court considered her demeanor, yet did not

examine the blatant inconsistencies and contradictions

that were evident in her testimony at the post trial

hearing. The petitioner’s request to present additional

witnesses was declined. The petitioner was denied the

chance to prove actual bias as required by McDonough. In

effect, the petitioner was precluded from introducing evi-

dence that the juror failed to answer honestly the ques-

tions posed on voir dire examination. This presents an

important reason for granting the instant petition.

Additionally, the First Circuit Court concluded that

bias should not be implied in petitioner’s case since the

situation did not rise to the level of “exceptional” or

“extreme” circumstances. However, the factors necessary

to constitute such circumstances are not well settled nor

clearly defined. Moreover, the court’s refusal to infer bias

in petitioner’s case runs counter to decisions of the courts

of appeal for other circuits. These reasons and the impor-

tance of the Sixth Amendment right to an impartial jury

compels the granting of the instant writ of certiorari.

I.

THE FIRST CIRCUIT COURT OF APPEALS FAILED

TO APPLY THE PRECEDENT OF THIS COURT ON

THE QUESTION OF JUROR BIAS

This court has determined that the remedy for allega-

tions of juror partiality is a post-trial hearing in which the

defendant has the opportunity to prove actual bias. Smith

v. Phillips, 455 U.S. 209 (1982). A party must first demon-

strate that the juror did not answer honestly a material

question on voir dire, and then further show that a cor-

rect response would have provided a valid basis for a

challenge for cause. McDonough Power Equipment, Inc. v.

Greenwood, 464 U.S. 548 (1984).

After the trial court’s colloquy with the juror, the

court concluded that the juror “blocked” from her mind

the sexual assault and therefore, her responses on voir

dire were honest. Despite the fact that the juror’s testi-

mony was replete with inconsistencies and contradic-

tions, the trial court concluded that the juror’s

nondisclosure was not intentional. (App. 36). The trial

court stated, “based upon the evidence produced and

reviewed, it was and is clear and settled in the mind of

the court that [the juror] harbored no bias or prejudice

against the defendant.” (App. 38).

The First Circuit Court of Appeals agreed with this

determination, but failed to note that the trial court’s

conclusion was based on evidence limited solely to the

testimony of the juror. The trial court declined to allow

the petitioner the opportunity to present additional wit-

nesses and evidence of actual bias as suggested by the

standard set out in McDonough.

The petitioner recognizes that a trial court’s deter-

mination is entitled to deference in a habeas corpus pro-

ceeding. Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct.

2885 (1984). However, in petitioner’s case, he was entirely

precluded from demonstrating that the juror was

untruthful, intentionally dishonest as well as bias.

The petitioner attempted to offer the clerk’s testimony as

evidence of the juror’s untruthful answers and this request

was denied by the court. (App. 4). The conversation that

transpired between the juror’s attorney and the clerk would

have directly conflicted with her claim that she could not

ein 4

remember the incident at issue. If she “blocked it” from her

mind then she did so immediately after it happened, remem-

bered it again some years later, failed to recall the incident at

the time of the voir dire examination, retrieved it from her

memory in discussion with her attorney, and then failed to

recall it again less than a week later — just in time for the

post-trial hearing.

After demonstrating that a juror did not answer hon-

estly questions on voir dire, a party must demonstrate that a

correct response would have provided a valid basis for a

challenge for cause. There is no question that this juror

would have been excused from the jury panel had she

disclosed the sexual assault prior to the empanelment of the

jury. The difficulties inherent in safeguarding a defendant's

right to be tried before an impartial jury are compounded

when the case involves issues of child sexual abuse. Not only

would the juror’s prior involvement as a victim of a crime

identical to that on trial have provided a valid basis for a

challenge for cause, but it would have inevitably led to her

dismissal for cause in this case. (App. 36-37).

II.

THIS CASE PRESENTS AN OPPORTUNITY FOR THIS

COURT TO DEFINE THE EXTREME CIRCUM-

STANCES WARRANTING A FINDING OF IMPLIED

BIAS

The First Circuit Court of Appeals read the majority

opinion in McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548 (1984) to require a further determination on

the question of juror bias even where a juror is found to

have been honest. However, the court went on to

conclude that bias should not be implied here because the

petitioner’s situation did not rise to the level of “excep-

tional” or “extreme” as referenced in the concurring opin-

ion of Smith v. Phillips, 455 U.S. 209 (1982) (O’Connor, J.,

concurring). (App. 5).

This Court has not explicitly adopted or rejected the

doctrine of implied bias. The doctrine is recognized in

certain situations where a post verdict hearing wili not be

an adequate remedy to uncover the bias of a suspect

juror. While each case must turn on its own facts, there

are extreme situations that justify a finding of presumed

bias. However, those circumstances warranting such a

finding have not been clearly defined.

The Massachusetts Supreme Judicial Court, in apply-

ing the standards set forth in Smith, 455 U.S. at 221 and

McDonough, 464 U.S. at 556-57, acknowledged that in

certain situations implied bias may be applicable. Com-

monwealth v. Amirault, 399 Mass. 617, 628, 506 N.E.2d 129,

221 (1987). Similarly, federal courts have recognized the

doctrine as well. Although courts agree that implied bias

is a viable doctrine, the courts have not clearly identified

the situations warranting its application.

In dicta, some guidance appears in United States v.

Ferri, 778 F.2d 985 (3d Cir. 1985), where there were allega-

tions that a juror may have known a collateral witness in

an arson case. The Third Circuit, in referring to Justice

O’Connor’s concurring opinion in Smith, supra, noted that

the case was not one of those “extreme situations” such

as a juror being “the victim of the same type of crime

being tried,” as in United States ex rel. DeVita v. McCorkle,

248 F.2d 1 (3rd Cir.), cert. denied 355 U.S. 873, 78 S.Ct. 121

10

(1957) (juror who had been the victim of a robbery sat on

a robbery/murder trial).

The Court of Appeals for the Ninth Circuit has found

that the relevant inquiry in determining implied bias is

whether the circumstances at hand present “a relationship in

which the ‘potential for substantial emotional involvement,

adversely affecting impartiality,’ is inherent[?]” Tinsley v.

Borg, 895 F.2d 520, 527 (9th Cir. 1990), cert. denied 111 S.Ct.

974 (1991) (citing United States v. Eubanks, 591 F.2d 513, 517

(9th Cir. 1979); United States v. Allsup, 566 F.2d 68, 71-72 (9th

Cir. 1977)). The Fourth Circuit has explained that the ques-

tion is whether the situation is one in which “ ‘the relation-

ship between a juror and some aspect of the litigation is such

that it is highly unlikely that the average person could

remain impartial in his deliberations under the circum-

stances[?]’” Tinsley, 895 F.2d at 527 (quoting Person v. Miller,

854 F.2d 656, 664 (4th Cir. 1988)).

The juror in petitioner’s case, has endured an experi-

ence extremely similar to that of the alleged victims. It is

highly unlikely that such an emotional and traumatic

personal experience would not interfere with her ability

to evaluate evidence fairly and objectively. The Fifth Cir-

cuit has acknowledged that “ ‘when possible non-objec-

tivity is secreted and compounded by the untruthfulness

of a potential juror’s answer on voir dire the result is a

deprivation of defendant’s right to a fair trial.’ ” United

States v. Scott, 854 F.2d 697, 699-700 (5th Cir. 1988) (cita-

tions omitted).

A juror’s protests of impartiality are not controlling

since the juror may have an interest in concealing a bias

or may be unaware of the existence of a bias. Upon

11

inquiry, “a juror is unlikely to admit that he had been

unable to weigh the evidence fairly. If he honestly

believes that he remained impartial throughout the trial,

no amount of questioning will lead to an admission.

Rather, the juror will vehemently deny any accusations of

bias.” Smith, 455 U.S. at 229-230, 102 S.Ct. 948 (Marshall,

J., Brennan, J., and Stevens, J., dissenting).

An individual’s right to an impartial jury cannot be

left to speculation. The parameters of those circumstances

requiring the application of presumed bias must be

clearly delineated in order to protect an individual’s Sixth

Amendment guarantee to an impartial jury.

III.

THE COURT OF APPEALS DECISION DOES NOT

COMPORT WITH THE PRECEDENT OF OTHER

COURTS ON THE ISSUE OF IMPLIED BIAS

The First Circuit Court of Appeals declined to find

bias in the petitioner’s case. In contrast, other federal

courts have been willing to presume bias where a juror or

close family member has been involved in a situation

with a similar fact pattern. United States v. Eubanks, 591

F.2d 513 (9th Cir. 1979). Accord, United States v. Perkins,

748 F.2d 1519, 1533 (11th Cir. 1984) (juror did not truth-

fully respond when questioned about involvement in

prior litigation); United States v. Bynum, 634 F.2d 768 (4th

Cir. 1980) (juror failed to disclose that a relative was

convicted of a crime); United States v. Allsup, 566 F.2d 68

(9th Cir. 1977) (the jurors in question worked for the very

bank that had been robbed. Despite their protestations of

impartiality and the district court’s findings of such, the

12

court found that the employees should have been pre-

sumed bias and excused for cause); Jackson v. United

States, 395 F.2d 615 (D.C. Cir. 1968) (juror was previously

involved in a “love triangle” similar to the one at trial);

United States ex rel. DeVita v. McCorkle, 248 F.2d 1 (3rd Cir.

1957) (in a robbery trial, juror was the victim of a rob-

bery) and Government of the Virgin Islands v. Bodle, 427

F.2d 532 (3rd Cir. 1970) (court granted a new trial for rape

where it was learned that a juror had a sister who had

been the victim of a rape and murder some years previ-

ously).

The petitioner’s case presents an analogous situation

to those cited. The district court points to Tinsley v. Borg,

895 F.2d 520 (9th Cir. 1990), cert. denied 111 S.Ct. 974

(1991), wherein the Ninth Circuit declined to find implied

bias. (App. 20-21). However, that case is clearly distin-

guishable from petitioner’s case in that the juror was not

herself the victim of a crime.

In Tinsley, the petitioner had been convicted of a rape

charge. A member of his jury, a psychiatric social worker,

stated on voir dire, that her training involved counseling

rape victims, but that she could remain impartial. She

neglected to mention, however, that she had counseled a

victim of rape and the she testified on the victim’s behalf

at trial. Although she herself had not been sexually

assaulted, Borg’s trial triggered her memory and she

recalled her past experience.

The Ninth Circuit held that these particular circum-

stances did not warrant a presumption of bias since “nei-

ther the juror .. . herself nor a close relative had been a

rape victim or rapist. There was no personal connection

a

13

between [her] and the defendant, the victim, or any other

witness.” Tinsley, 895 F.2d at 529.

As demonstrated above, the First Circuit Court of

Appeal’s determination not to infer bias in petitioner’s

case, contradicts the decisions of other federal courts

cited above where a similar situation was considered.

¢

CONCLUSION

For the reasons stated above, the Petitioner, Gerald

Amirault, respectfully requests that this Honorable Court

grant the Petition for Writ of Certiorari.

Respectfully submitted,

JULIANE BALLIRO

BALLIRO, MONDANO & BALLIRO, P.C.

Three Arlington Street

Boston, MA 02116

(617) 227-5822

No.

4

In The

Supreme Court of the United States

October Term, 1992

GERALD AMIRAULT,

Petitioner,

MICHAEL FAIR,

Commissioner of the Department of Corrections,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

APPENDIX

App. 1

United States Court of Appeals

For the First Circuit

No. 91-2308

GERALD A. AMIRAULT,

Petitioner, Appellant,

V.

MICHAEL V. FAIR,

Respondent, Appellee.

APPEAL FROM AN ORDER OF THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

Before

Selya, Circuit Judge,

Lay, “Senior Circuit Judge,

and O’Scanniain, **Circuit Judge.

Frank Mondano with whom Juliane Balliro and Balliro,

Mondano, & Balliro, P.C. were on brief for petitioner.

“Of the Eighth Circuit, sitting by designation.

“*Of the Ninth Circuit, sitting designation.

App. 2

Pamela L. Hunt, Assistant Attorney General, with

whom Scott Harshbarger, Attorney General, was on brief

for respondent.

July 8, 1992

Per Curiam. Gerald Amirault brings this habeas peti-

tion challenging his staie court conviction on seven

counts of indecent assault and battery of a child, and on

eight counts of rape of a child. Amirault claims that a

juror’s failure to disclose a material fact during voir dire

questioning violated his Sixth Amendment right to an

impartial jury and that improper remarks made by the

prosecutor denied his right to a fair trial. The federal

district court denied Amirault’s petition for a writ o*

habeas corpus. We affirm.

Juror Misconduct

Two days after the jury reached its verdict, defense

counsel received information that one of the jurors had

been a rape victim forty years earlier. Although the jurors

were asked on voir dire if they or any of their family

members had ever been involved in a civil or criminal

case, the juror failed to inform the court that when she

was fourteen years old she was raped by a neighbor,

brought charges against him, and testified at his trial. The

man she accused of raping her was convicted and served

a term of imprisonment for the crime.

App. 3

When defense counsel brought this matter to the

attention of the trial court, the court granted counsel

permission to examine the juror’s voir dire responses,

conduct a private investigation into the allegations, and

examine state criminal records pertaining to the 1946

rape. The court ultimately conducted an evidentiary hear-

ing to examine the juror. While the court conducted its

own inquiry of the juror, it also provided both parties the

opportunity to question her. The juror testified that she

had no memory of the rape, but suggested that if it had

happened it must have been “over forty years ago.” She

later admitted that something had happened to her as a

child but claimed to have no memory of it.

After its examination of the juror, the state trial court

concluded that the juror had genuinely “blocked” from

her conscious mind the memory of the event and that she

therefore answered the voir dire questions honestly. The

court further concluded that “[b]ased upon the evidence

produced and reviewed, it was and is clear and settled in

the mind of the court that [the juror] harbored no bias or

prejudice against the defendant... . ” Commonwealth v.

Amirault, Nos. 85-70 to 80, 85-2653 to 2666, slip op. at 6

(Mass. Super. Ct. Aug. 20, 1986) (memorandum of deci-

sion on defendant’s motion for new trial). This conclusion

was based in part on the court’s assessment of the juror’s

honesty, sincerity and apparent respect for the integrity

of the criminal justice system. Upon determining that the

juror neither intentionally deceived the court nor har-

bored any bias against the defendant, the court declined

App. 4

to permit the defense to extend the hearing to include

other witnesses.!

Amirault concedes that the trial court acted properly

in conducting a post-conviction hearing to examine the

juror and that trial court findings on questions of juror

partiality are presumed correct under 28 U.S.C. § 2254(d)

(1988). He claims, however, that the trial court’s findings

of impartiality are not fairly supported by the record. We

disagree.

A trial court’s findings on issues of juror credibility

and honesty are determinations “peculiarly within a trial

judge’s province” and are accorded great deference.

Wainwright v. Witt, 469 U.S. 412, 428 (1985); see also Patton

v. Yount, 467 U.S. 1025, 1038 (1984). As the district court

found, the petitioner has failed to produce convincing

evidence that the trial court’s finding that the juror

answered honestly the questions on voir dire was erro-

neous.

Although we read the majority vote in McDonough

Power Equipment v. Greenwood, 464 U.S. 548 (1984), to

require a further determination on the question of juror

1 During a break in the hearing, a court clerk reported to

defense counsel a conversation he had had with the juror’s

counsel. According to the clerk, the juror’s attorney told him

prior to the hearing that the juror had been the victim of a sexual

assault but that she could remember no details. Amirault chal-

lenges the court’s denial of his request that the clerk be permit-

ted to testify at the hearing because he believes such testimony

would have served to impeach the juror. We agree with the

district court that such testimony would have had little value to

the proceeding.

App. 5

bias even where a juror is found to have been honest,? we

find that bias should not be implied here. As the federal

district court observed, the situation presented here of a

juror found to have blocked the memory of an unrelated

forty-year-old rape does not rise to the level of “excep-

tional” or “extreme” circumstances which may permit a

finding of implied bias. See Smith v. Phillips, 455 U.S. 209,

222 (1982) (O’Connor, J., concurring).

Prosecutorial Misconduct

Amirault claims that certain remarks made by the

prosecutor violated his right to a fair trial. Amirault first

challenges a reference by the prosecutor to his post-arrest

silence as a violation of his Fifth Amendment rights. See

Doyle v. Ohio, 426 U.S. 610 (1976) (exercise of right to

remain silent may not be used against defendant at trial).

In her closing remarks, the prosecutor told the jury that

while the law forbids the state from approaching the

defendant after his arrest, the law does not prevent

defendants from affirmatively telling his side of the case.

We agree with the district court that the “fair response”

exception to the rule applies here. See United States v.

2 See McDonough, 464 U.S. at 556-57 (Blackmun, J., concur-

ring) (“[R]egardless of whether a juror’s answer is honest or

dishonest, it remains within a trial court’s option, in determin-

ing whether a jury was biased, to order a post-trial hearing at

which the movant has the opportunity to demonstrate actual

bias or, in exceptional circumstances, that the facts are such that

bias is to be inferred.”); id. at 558 (Brennan, J., concurring) (“I

therefore cannot agree with the Court when it asserts that a new

trial is not warranted whenever a prospective juror provides an

honest answer to the question posed.”).

App. 6

Robinson, 485 U.S. 25 (1988). The prosecutor made men-

tion of Amirault’s silence because defense counsel had

just suggested to the jury that the prosecution was biased

against Amirault because no one ever asked him his side

of the story. We also find the curative instructions issued

by the court sufficient.

Amirault also challenges the prosecutor’s reference

to facts not in evidence, her expression of personal opin-

ion with respect to a theory advanced by one of

Amirault’s expert witnesses, her alleged suggestion that

the defendant had the burden of disproving the allega-

tions, her mischaracterization of the defense theory, and

her suggestion that incriminating evidence had been

removed from the defendant’s home prior to the jury’s

visit there. To prevail on these claims, Amirault must

show that the remarks “so infected the trial with unfair-

ness as to make the resulting conviction a denial of due

process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974) (level of review for cases which do not involve

prosecutorial remarks which “so prejudice[] a specific

right, such as the privilege against compulsory self-

incrimination, as to amount to a denial of that right.”); see

also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he

touchstone of due process analysis in cases of alleged

proscutorial misconduct is the fairness of the trial, not the

culpability of the prosecutor.”). We find that petitioner

has failed to make this showing. We agree with the dis-

trict court’s finding that these comments did not rise to

the level of constitutional error and that the curative

instructions were sufficient.

App. 7

We thus find no constitutional error and affirm the

district court’s order denying the petition for a writ of

habeas corpus.

Affirmed.

App. 8

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

GERALD A. AMIRAULT,

Petitioner

Vs. CIVIL ACTION

No. 89-1121-MA

MICHAEL V. FAIR,

Respondent

MEMORANDUM AND ORDER

Mazzone, D.]. October 7, 1991

Petitioner Gerald Amirault has filed a petition for

writ of habeas corpus under 28 U.S.C. § 2254 seeking

release from state custody. Petitioner is a prison inmate at

the Massachusetts Correctional Institute (“MCI”), Cedar

Junction. Respondent Michael Fair is the Commissioner

of the Department of Corrections. Petitioner Amirault

presents two constitutional challenges to his state court

conviction. He charges: 1) that a juror’s failure to disclose

a material fact during jury selection violated the peti-

tioner’s Sixth Amendment right to an impartial jury; and

2) that the improper remarks made by the prosecution

during her closing argument prejudiced the jury and

denied the petitioner a fair trial. For the reasons outlined

below, the petition for a writ of habeas corpus is denied.

I. PROCEDURAL HISTORY

Petitioner Gerald “Tooky” Amirault was indicted on

seven counts of indecent assault and battery of a child

under the age of fourteen, and eight counts of rape of a

a

App. 9

child under the age of sixteen. The fifteen count indict-

ment involved nine children, both male and female, who

attended the Fells Acres Day School in Malden, Massa-

chusetts, the petitioner’s place of employment. After a

twelve week trial, on July 19, 1986, a Middlesex County

jury convicted the petitioner on all fifteen counts. He was

sentenced to serve concurrent terms of thirty to forty

years on the rape charges, and concurrent terms of eight

to ten years on the indecent assault and battery charges.

Petitioner filed a motion for a new trial and for a post

verdict investigation and inquiry of a juror on August 1,

1986. The trial judge conducted an in camera hearing on

August 19, 1986 at which the juror testified. Petitioner

was present at this hearing and both defense counsel and

the Commonwealth had the opportunity to examine the

juror. The trial judge denied the motion for a new trial,

which petitioner then appealed. A single justice of the

Massachusetts Appeals Court ordered an expedited

appeal. On April 13, 1987, the Supreme Judicial Court

affirmed the trial judge’s decision in Commonwealth v.

Amirault, 399 Mass. 617 (1987) (“Amirault I”). Petitioner

also appealed his convictions, which were not expedited.

Petitioner then renewed his motion for a new trial

based on additional information regarding the juror’s

conduct, which the trial judge denied on February 2,

1988. Petitioner then appealed the denial of his renewed

motion for a new trial and his convictions,which were

consolidated then transferred to the Supreme Judicial

Court by its own motion. On March 6, 1989, the Supreme

Judicial Court affirmed the trial judge’s order and the

convictions in Commonwealth v. Amirault, 404 Mass. 221

(1989) (“Amirault II”).

App. 10

Having exhausted his state remedies, petitioner filed

this petition for writ of habeas corpus on May 4, 1989.

Respondent filed a motion to dismiss arguing: 1) Local

Rule 41.1 (A)(1) and (c) require dismissal for want of

prosecution, and 2) 28 U.S.C. §2254(b) contains a pre-

sumption of finality regarding facts found by the state

court, thereby compelling dismissal. On March 21, 1991, I

treated the motion as a motion to dismiss on the merits

and directed counsel to file appropriate memoranda. Not

having received such memoranda and seeking to avoid

any misunderstanding by petitioner’s counsel, on July 1,

1991, I reiterated my order of March 21. Petitioner filed

his memorandum on July 22, 1991 and respondent filed

on July 29, 1991. This petition is now before the Court.

Il. FACTUAL BACKGROUND

The facts are more fully set forth in the Massa-

chusetts Supreme Judicial Court’s opinions in (“Amirault

I”) and (“Amirault II”). Only those facts relevant to this

petition are recounted below.

Impanelment of the jury took place over a period of

eight days, involving both written and oral examination

of each juror. Each seated juror completed three written

questionnaires [sic]: a standard form document, which

was completed by all persons summoned to jury duty;

and two others which were specifically drafted for this

case. In addition, each juror orally answered questions on

voir dire.

The juror in question completed the aforementioned

process and was seated. In response to the question on

the standard form asking the jurors whether they or any

App. 11

family member had any past or present involvement as a

party or victim in a civil or criminal case, the juror

responded negatively. On the specially designed form,

the jurors were asked if they or any member of their

immediate family or any of their close friends had ever

been a victim, witness or defendant in a criminal case.

The juror responded affirmatively but added that the

matter had never gone to trial. Under individual ques-

tioning, the juror revealed that a member of the juror’s

immediate family had been charged with driving under

the influence of alcohol. The juror also indicated an abil-

ity to be fair and impartial in a case involving child

sexual abuse. The juror was found indifferent and there

were no objections.

Two days after the verdicts were returned, defense

counsel received a call from a person identifying himself

as Mr. Galligan who wanted to speak to an attorney

involved in the Fells Acres case. Galligan stated he had

seen a photograph of the jurors who sat on the case and

believed he recognized the juror in question as one who,

while a teenager, had accused his cousin of rape. He

stated that the case had gone to court and his cousin had

been sentenced to a prison term. The attorney asked for

additional details, but Galligan would not say anything

more. Galligan offered no additional information about

himself. He indicated he might call back, but there is no

evidence he did.

In order to verify Galligan’s story, petitioner’s coun-

sel requested the trial judge direct the Commonwealth to

provide them access to criminal records. On August, 1,

1986, the trial judge entered an order providing the

defendant with the requested access. The defendant

OES eS NSS

App. 12

found that Galligan had correctly provided the juror’s

maiden name as well as other personal information. Hav-

ing corroborated the information from Galligan, defense

counsel extended the scope of the investigation and a

private investigator was retained. The investigator inter-

viewed two persons somewhat familiar with the juror’s

past. One of the individuals stated the juror had been

raped and a man had gone to prison for an extended

period of time but did not remember the year of the

assault or the name of the rapist. The other individual

had been told the juror was raped and that a man had

been imprisoned for that crime.

The juror in question was ordered to appear for an in

camera hearing on August 12, 1986. The order stated that

the juror was entitled to have counsel present and juror’s

counsel could view the documents relating to the defen-

dant’s motion for a new trial before the hearing date. On

August 19, 1986, the juror appeared at the hearing with

counsel. Also present were the petitioner, petitioner’s

counsel and counsel for the Commonwealth.

The hearing was conducted in the trial judge’s cham-

bers, in the presence of the petitioner. The judge began

the initial questioning, then gave the parties the oppor-

tunity to examine the juror. In response to the judge’s

questions, the juror could not remember being a victim of

a crime. The juror, who was 54 years old, continued that

if something did happen, “it had to be over 40 years ago”

and had been “completely blocked from my mind.” The

juror knew no details of any crime and could not recall

anything about a crime. The trial judge asked the juror

about the negative answer given to the Court in response

to the question asking about present or past involvement

App. 13

as a party or a victim. The juror indicated no memory of

any such involvement. There is no evidence that anything

along those lines came into the juror’s mind during the

trial, or at any other time. The juror was ready to follow

the instructions of the Court and decide the case solely on

the evidence at the time the juror service began. The juror

did not mention anything about being a victim of a crime

to other members of the jury.

During a break in the hearing, court clerk Joseph

Marshall relayed a conversation he had with the juror’s

attorney to petitioner’s counsel. When the hearing

resumed, petitioner’s counsel informed the court that

juror’s counsel told Marshall that as a youth, the juror

was involved in an incident which was sexual in nature,

reported it, but could recall no details. Petitioner’s coun-

sel requested that Marshall testify to this on the grounds

that it contradicted the juror’s testimony. The trial judge

confirmed with Marshall that the contents of his conver-

sation were accurate, then stated that the conversation

was now a part of the record. The trial judge declined to

extend the investigation or the hearing.

In denying the motion for a new trial, the trial judge

found the juror honestly answered all the written and

oral questions asked during the impanelment process.

The judge also found that the nondisclosure of the juror’s

past as a victim of a sexual offense was not intentional. In

making this decision, the judge recounted an incident

during the trial when the juror came forward to relate

that a fellow employee had initiated a conversation about

the case. The co-worker asked whether the juror knew an

individual whose child had attended Fells Acres. Indicat-

ing that discussion of the case was not allowed, the juror

App. 14

ended the conversation. The juror checked the witness

list to make sure the person mentioned by the co-worker

was not scheduled to testify. The juror reported this inci-

dent to the judge in chambers, on the record, with all

counsel present. Without objection, the juror was

returned. The trial judge was impressed by the juror’s

honesty and concern for the integrity of the trial process

and stated that had the juror harbored any ill-feeling or

animosity toward the defendant, it was unlikely the juror

would have come forward. In her opinion, the trial judge

concluded:

I decline to adopt a standard that bias or preju-

dice can be inferred or implied solely in the

basis of an event in the experience of a juror or

solely on the basis of nondisclosure of same.

Based upon the evidence produced and

reviewed, it was and is clear and settled in the

mind of the court that Juror X harbored no bias

or prejudice against the defendant when X

cleared the voir dire examination.

After the decision in Amirault I, the petitioner filed a

renewed motion for a new trial based on juror miscon-

duct. The motion contained new information not revealed

at the hearing, specifically, the name of the assailant and

the place where the assault occurred and information

about the assailant’s trial and conviction. The trial judge

found that, while the assault was addressed with greater

specificity the information did not impact upon her origi-

nal findings and denied the motion. The Supreme Judicial

Court affirmed in Amirault II.

App. 15

Ill. DISCUSSION

Juror Misconduct

Petitioner has filed his petition under 28 U.S.C.

§ 2254, the statute governing the review of state court

convictions by federal courts. Section 2254(d) contains a

presumption of correctness with respect to state court

findings of facts. This presumption applies to state trial

and appellate courts’ factual findings. Rushen v. Spain, 464

U.S. 114, 120 (1983) (per curiam), Sumner v. Mata, 455 US.

591, 597-598 (1982) (per curiam). This presumption may

be rebutted in three ways: if any of the grounds listed in

28 U.S.C. § 2254(d)(1)-(7) are found to exist; if the deter-

mination is not fairly supported by the record of the state

court proceeding; or if the petitioner shows by convinc-

ing evidence that the factual determination by the state

court was erroneous. 28 U.S.C. § 2254(d)(8).

On federal habeas corpus review, the question of

juror impartiality is a question of “historical fact.” Patton

v. Yount, 467 U.S. 1025, 1036 (1984). A trial court’s resolu-

tion of this question is entitled to special deference on

direct appeal and in a habeas proceeding. Id. at 1038.

United States v. Angiulo, 897 F.2d 1169, 1186 (1st Cir. 1990)

cert. denied 111 S.Ct. 130 (1990). In examining a state

prisoner’s petition, a federal court may only review the

conviction for constitutional error, and in so doing, must

apply federal constitutional law. Ouimette v. Moran, No.

91-1213, slip op. at 7-8, (Ist Cir. August 6, 1991).

Petitioner argues that his Sixth Amendment right to a

trial by an impartial and indifferent jury was violated

when the juror did not disclose possible bias as a victim

of a previous crime on voir dire. The remedy for juror

a

eee

App. 16

partiality is a post-trial hearing where the defendant may

prove actual bias. Smith v. Phillips, 455 U.S. 209, 217

(1982). In Phillips, a juror submitted an application for

employment to the prosecutor’s office during the trial.

The Court did not impute bias and held that the proper

remedy for allegations of juror partiality is a hearing

where the defendant has the opportunity to prove actual

bias. Shortly thereafter in McDonough Power Equip., Inc., v.

Greenwood, 464 U.S. 548 (1984), the Court elaborated on

the standard for determining juror partiality.

[A] party must first demonstrate that a juror

failed to answer honestly a material question on

voir dire, and then further show that a correct

response would have provided a valid basis for

a challenge for cause. The motives for conceal-

ing information may vary, but only those rea-

sons that affect a juror’s impartiality can truly

be said to affect the fairness of a trial.

Id. at 556. Though McDonough was a civil case, the stan-

dard applies to criminal cases as well. See United States v.

Perkins, 748 F.2d 1519, 1531-1533 (11th Cir. 1984), United

States v. Aguon, 851 F.2d 1158, 1170 (9th Cir. 1988) (en

banc).

Petitioner contends that the juror’s past experience as

a victim of sexual abuse was consciously concealed from

the Court and the Court’s assessment that the juror was

able to act as a fair and unbiased juror is not supported

by the record. Petitioner states that the juror was able to

recall events which occurred prior to the assault, that the

juror testified several times during the criminal proceed-

ing against the assailant, and that the juror’s reference to

“40 years ago” was actually precise — the assault occurred

earner neers

App. 17

40 years and 60 days prior to the post-verdict hearing.

Petitioner argues these facts, among others, show that the

juror did not honestly respond during voir dire or during

the post-verdict hearing.

The first prong of the McDonough test requires peti-

tioner to demonstrate that the juror did not honestly

answer a material question on voir dire. In a criminal

trial, past contact with the criminal justice system may be

considered material. The question remains whether the

juror responded honestly. The trial judge was persuaded

of the juror’s honesty in responding to questions on voir

dire and found that the nondisclosure was unintentional.

Petitioner has not presented the court with convincing

evidence that the state court’s determination was erro-

neous.! Keeping in mind that the trial judge’s findings

are to be given deference, I accept that the juror

“blocked” the memory of the assault and responded hon-

estly during voir dire. None of the other seven factors

listed in 28 U.S.C. § 2254(d)(1)-(7) are present. Since the

1 The conversation between the juror’s attorney and Clerk

Marshall is raised by petitioner. Respondent states it is not clear

whether the juror’s attorney based his information on state-

ments from his client, but cites nothing to support this assertion.

The trial judge does not specifically discuss this in her opinion.

In weighing this piece of evidence, the Supreme Judicial Court

in Amireault I stated, “Once the judge accepted the essential

truth of the juror’s testimony, the need for other witnesses to

testify evaporated. Likewise, the judge was warranted in find-

ing that the coversation between the clerk and the juror’s attor-

ney did not possess any sufficient impeachment value.”

Amireault, 399 Mass. at 628. I agree with this finding.

App. 18

first prong of the McDonough test is not satisfied, | con-

clude that the record as a whole supports the determina-

tion of the trial judge that there was no actual bias.

Petitioner further argues that these facts require the

Court to imply or presume bias. Petitioners argue Phillips

did not foreclose the use of implied bias in certain situa-

tions where a post-conviction hearing will not be ade-

quate to uncover the bias of a juror. Phillips, 455 U.S. at

222, 224. (O’Connor, J. concurring). See McDonough, 464

U.S. at 556-557 (Blackmun, Stevens, O’Connor, J.J. concur-

ring). Justice O’Connor cited examples of such “extreme”

or “exceptional situations:” a juror who is an employee of

a prosecuting agency; a juror who is a close relative of

one of the participants in the trial or crime; and a juror

who was a witness or somehow involved in the crime.

Phillips, 455 U.S. at 222.

Several Supreme Court cases have considered

implied bias; it remains a viable doctrine. Justice O’Con-

nor referred to three cases: Remmer v. United States, 347

U.S. 227 (1954); Dennis v. United States, 339 U.S. 162

(1950), reh. den. 339 U.S. 950 (1950); and Leonard v. United

States, 378 U.S. 544 (1964) (per curiam) where the Court

did not preclude implied bias.?

2 Remmer involved a third party who attempted to bribe a

juror. There, where the juror did not engage in misconduct or

have a stake in the trial’s outcome, there was no “significant

incentive” to shield the juror’s biases and a postconviction rem-

edy was adequate. In Dennis, the fact of a juror’s employment

by the U.S. Government was not grounds to find implied bias,

but the court did not foreclose such a finding under more

serious circumstances. In Leonard, the Court invoked the doc-

trine of implied bias and reversed the conviction, holding that

App. 19

Petitioner urges the court to apply the doctrine of

implied bias and cites several circuit court cases where it

has been successfully invoked. In these cases, bias has

been presumed where a juror or close family member has

been involved in a situation similar to that of the crime.

Petitioner also discusses United States ex rel. De Vita v.

McCorkle, 248 F.2d 1 (3rd Cir. 1957) cert. denied 355 USS.

873 (1957) reh den. 355 U.S. 908 (1957). DeVita involved a

juror in a capital case who was the victim of a similar

robbery seven months before. Jurors were asked if they

had been robbery victims and the juror did not respond.

The district court had found no evidence that the juror

was not impartial, but the Third Circuit court reversed,

finding “colorable” bias. However, this case, unlike peti-

tioner’s, involved a juror who was aware he had not

disclosed the requested information. In addition, the

juror was a victim less than a year before the robbery at

issue, as opposed to the forty years which had elapsed in

the case of the juror in the instant case.

Petitioners [sic] relies on United States v. Eubanks, 591

F.2d 513 (9th Cir. 1979) where a juror in a heroin trial did

not disclose during questioning on voir dire that his two

sons were serving long prison terms for crimes commit-

ted to acquire heroin. The Ninth Circuit held that regard-

less of the father’s reason for the his non-disclosure, his

son’s involvement with heroin bars the inference that he

was impartial.

unseated jurors who had heard a defendant’s guilty verdict in

the first trial should be automatically prevented from sitting on

a second trial on similar charges. Phillips, 455 U.S. at 223-224,

(O’Connor J., concurring).

App. 20

Though Eubanks appears similar to the instant case,

the Eubanks juror intentionally did not disclose his sons’

current incarceration, while the juror’s nondisclosure in

this case was not intentional. The Eubanks court stated the

juror had a reason for not disclosing, but held that reason

was immaterial. The juror in this case had no reason for

her nondisclosure, as she had no memory of the assault,

so the logic the Eubanks court is not applicable. In addi-

tion, unlike the Eubanks juror whose sons were in prison

at the time of the trial, the instant juror’s assault occurred

over forty years ago.

More recently, the Ninth Circuit declined to find

implied bias in Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990),

cert. denied 111 S.Ct. 974 (1991), a petition for federal

habeas relief. In Borg, he [sic] petitioner had been con-

victed of several charges, including rape. A psychiatric

social worker who had counseled a rape victim intermit-

tently for a year and a half period three years prior to the

trial and had testified at her client’s trial did not disclose

the rape counseling at voir dire. She remembered it dur-

ing the trial. At the post-conviction hearing, the juror

stated she did not recall the counseling at voir dire and

had no recollection of thinking about the prior counseling

episode during deliberations. She stated she felt her mind

was fair.

Though the Court found this to be a close case, they

did not find there were exceptional circumstances as

defined by Justice O’Connor to warrant implying bias,

despite the fact that the juror recalled her experience

during the trial. The Court stated the juror’s rape coun-

seling client was only one of many during a thirty year

career.

App. 21

While the juror in Tinsely [sic] was not the victim of a

crime, she was close to the victim’s mental state as a

result of the crime. Like the juror in this case, she did not

recall the incident on voir dire. Though the social worker

recalled the counseling during the trial and did not come

forth, the court still found there to be no implied bias. By

contrast, the instant juror not only had no recollection of

the events on voir dire, but did not have any memory of

the incident at all. Furthermore, the prompt reporting of

the conversation with juror’s co-worker indicated the

respect and concern the juror had for the trial process.

These procedures are set in place to insure a fair trial for

the defendant, and the juror’s actions indicate a willing-

ness to foliow the court’s instructions to assure that end.

This does not fali within the “exceptional circumstances”

of which Justice O’Connor spoke. Reviewing the record in

its entirety, I do not find implied bias in these circum-

stances.

B. Prosecutor’s Improper Remarks During Closing

Argument

Petitioner contends that three types of remarks were

made by the prosecutor in his closing argument, the

cumulative effect of which denied him a fair trial. The

three remarks were: 1) the prosecutor’s improper com-

ments on petitioner’s post arrest silence; 2) the prosecu-

tor’s suggestion of facts and circumstances not in

evidence; and 3) the prosecutor’s misstatement of law

and fact so as to shift the burden of proof and deceptively

characterize the theory of the defense. I examine each of

these separately.

App. 22

1. Post Arrest Silence

Petitioner states that the prosecutor made remarks in

his closing on the petitioner’s post arrest silence in viola-

tion of petitioner’s Fifth Amendment right to not incrimi-

nate himself. The excerpts from the closing remarks of

both the defense attorney (“D”) and the prosecutor (“P”)

are reproduced below:

D:

Until this trial, for the past two years, this defendant

has barely been a person; he’s been some type of

disembodied Tooky the child abuser. No one has ever

asked him a question. The only words ever said to

him in connection with this case prior to this trial

are: Your rights; you are under arrest. You have the

right to remain silent. That’s the only question or

only words put to him during the course of the

almost two years that this matter has been pending.

Well, he’s not a disembodied Tooky; he’s a real per-

son with a real wife and a real family .. .

[Defense Counsel] told you no one ever even asked

the defendant a question during the two years that

this case was pending, no one bothered to find out

what he had to say. The prosecution wasn’t inter-

ested in his side of the story. But, what [defense

counsel] neglected to tell you, ladies and gentlemen,

is that the Commonwealth is forbidden by law from

approaching a defendant and talking to him after

he’s been arrested. But, the law, ladies and gentle-

men, does not forbid a defendant from approaching

the Commonwealth to tell his side of the case, if he

wants to; and I say to you, ladies and gentlemen, that

you have heard no evidence that the defendant ever

tried to do that in this case.

App. 23

Petitioner immediately moved for a mistrial and

made an alternate request for curative instructions imme-

diately after the prosecution’s summation. The motion for

mistrial was denied and the trial judge allowed petitioner

to submit requests for curative instructions. The jury was

given specific instructions the next day.

The Fifth Amendment forbids remarks by the pros-

ecution on the defendant’s choice to remain silent. The

Supreme Court in Griffin v. California, 380 U.S. 609 (1965),

reh den. 381 U.S. 957 (1965) held that a prosecutor, in his

closing argument, who commented on the defendant's

failure to testify, impermissibly infringed on the defen-

dant’s Fifth Amendment right to remain silent. This rule,

however, is not absolute. Responses by the prosecution to

the defense’s comments do not violate the defendant’s

privilege to be free from compulsory self-incrimination

which is guaranteed by the Fifth Amendment. In United

States v. Robinson, 485 U.S. 25 (1988), a prosecutor’s

remarks regarding a defendant’s right to remain silent

was held to be a fair response to defense counsel’s state-

ments regarding the inability of his client to “explain” his

side of the story. The First Circuit has applied this hold-

ing in United States v. Rouleau, 894 F.2d 13 (1st Cir. 1990).

In Rouleau, defense counsel made a comment in his clos-

ing regarding the whereabouts of certain monies the gov-

ernment alleged the defendant had received. In his

closing, the prosecutor asserted that only the defendant

knew the location of the money. Defendant argued this

violated his Fifth Amendment right not to testify. The

Court, citing Robinson, held the government’s remarks

were “at worst. .a fair response to the defense’s argumen-

tative query.” Id. at 16.

iia alin

App. 24

In the instant case, it is clear from the colloquy that

the government’s comments were in response to the

defense counsel’s assertions that petitioner had had no

opportunity to present his version of the facts. This is

constitutionally permissible under Robinson; therefore, |

find that no Fifth Amendment violation occurred.

2. Facts and Circumstances Not in Evidence

Petitioner also contends that the prosecutor made

comments in his closing about the testimony of peti-

tioner’s psychiatric expert, Dr. Daniel Schuman and the

prosecution’s expert, Dr. Jean Emans, which had a preju-

dicial effect on the jury and denied the petitioner a fair

trial. Specifically, the prosecutor stated:

[Dr. Schuman’s] positive loop theory that he

talked to you about is not any kind of recog-

nized or accepted theory . . . Dr. [Schuman] is

not qualified to deal with children, . . . he does

not have any expertise in sexual abuse.

Defense counsel objected. The next day, the trial judge

issued a curative instruction to the jury “to disregard that

statement as there was no evidence or testimony offered

by the Commonwealth that it is not a recognized the-

|: ee

Petitioner argues these statements suggest the pros-

ecutor had personal knowledge that Dr. Schuman’s the-

ory was not medically accepted, contrary to the evidence.

They further argue the instruction come one day too late

and was inadequate to minimize the prejudicial effect it

had on the jury.

App. 25

Regarding the testimony of Dr. Emans, the prosecu-

tor stated:

You heard Dr. [Emans] describe how child

molesters often engage in something called

vulva[r] intercourse which does not involve

penetration to the vagina and which would not

show physical findings in an examination.

Dr. Emans did not testify regarding the habits of child

molesters.

In addition, the prosecutor stated in his opening that

they would not see any example of regular sexual inter-

course, but one child did testify to that effect. The peti-

tioner states Dr. Emans did not offer an opinion that

results of a colposcopy were consistent with penetration,

therefore, the prosecutor’s characterization of Dr. Eman’s

testimony was an attempt to resolve the discrepancies

between his opening statement, the child’s testimony and

the physical findings. However, respondent points out

Dr. Emans testified that children can be sexually abused

without actual penetration.

I define sexually abused children as children

who have had inappropriate touching or fon-

dling in the genital area .. . they may have had

what we call vulvar coitus, where the penis has

actually touched that area, they may have had

attempted penetration .

Defense counsel objected to the prosecutor’s remarks

and the judge issued a curative instruction to the jury the

next day:

The Commonwealth made certain references in

closing argument relative to testimony by

experts on the use of objects by child abusers

App. 26

and the practice of vulva[r] intercourse by child

abusers. The statements as made would suggest

that there was evidence by experts presented as

to traits exhibited or conduct engaged in by

child abusers. You are instructed to disregard

those statements as there was no evidence of the

use of objects or vulva[r] intercourse either as a

trait or conduct engaged in by child abusers.

“The touchstone of due process analysis in cases of

alleged prosecutorial misconduct is the fairness of the

trial, not the culpability of the prosecutor.” Phillips, 455

U.S. 209, 219 (1982). While the prosecutor went beyond

the evidence regarding Dr. Schuman and Dr. Eman’s testi-

mony, in both instances, the judge specifically gave cura-

tive instructions to the jury. In Ferreira v. Fair, 732 F.2d 245

(1st Cir. 1984), cert. denied 469 U.S. 1017 (1984), a federal

habeas corpus proceeding, the prosecutor made remarks

in his closing regarding the credibility of the witnesses

and his personal opinion as to the defendant’s guilt. The

trial judge issued a specific curative instruction to the

jury. The Court held that while the remarks were “thor-

oughly inappropriate”, they were not “so egregious as to

deprive petitioner of a fair trial” and found no constitu-

tional error. Id. at 249. While I do not condone the state-

ments of the prosecution, I find that the judge’s specific,

timely instructions adequately curtailed the prejudicial

effect of these remarks.

3. Misstatements of Law and Burden of Proof

Petitioner contends the prosecutor misstated the law

of common scheme and suggested that the defendant had

App. 27

the burden of disproving the allegation on three occa-

sions in his closing.

The court will tell you in substance that if you

find the defendant was engaged in a common

scheme of plan abusing these children, then you

can use their testimony to corroborate each

other and to rebut the defense position that

nothing happened. That instruction is given to

you .. . because it is the law .. . But [the

defendant] was unable to point to one single

thing in the whole world that would account for

why all these children and parents have turned

against him.

The next day, the court instructed the jury:

I strongly caution you that you may not con-

sider any evidence of common pattern or course

of conduct as evidence showing that the defen-

dant is a person of bad character or that he has a

disposition to commit a crime. You are

instructed that evidence of common scheme is

not to be used to rebut the testimony of the

defendant. The defendant is under no duty or

obligation to rebut any evidence presented. It

can be used, if at all, to corroborate the chil-

dren’s testimony.

I further caution you that you may not consider

this evidence so as to dispense with the burden

of proof beyond reasonable doubt as to the ele-

ments of the crimes charged... .

Petitioner also argues that the prosecutor improperly

suggested the defense’s theory of the case. By misstating

the facts, petitioner contends the prosecution deliberately

attempted to mislead the jury.

y

FY

la lee

App. 28

Look at the big picture, ladies and gentlemen.

The defendant is asking you to believe that nine

children, ten parents, a grandmother, an uncle,

an aunt, a sister, five different police officers, six

or seven different social workers, two medical

experts, maybe two assistant District Attorneys,

are engaged in some [illegible] conspiracy to

convict this defendant... .

Petitioner’s counsel states he requested a curative

instruction, which was denied by the trial judge. How-

ever the trial judge did deliver the following instructior

For a theory of the case proposed by counsel in

closing argument to be accepted and adopted by

the jury, it must be supported by the credible

evidence presented that it’s consistent with that

theory.

In both instances, the trial judge’s instructions to the jury

specifically countered the prosecutor’s remarks, curtail-

ing their prejudicial effect.

Finally, petitioner finds fault with the prosecutor’s

reference to the petitioner’s home.

What relevance do you think the visit that you

were asked to make to the defendant’s home has

to do with this case? Do you think that if there

were anything in that house of an incriminating

nature two years ago, that it was still going to be

there when you went to that house last month?

Do you think that the visit to the defendant’s

home was anything more that a blatant attempt

to manipulate you emotionally with respect to

this defendant?

Petitioner argues that prosecutor inferred that the defen-

dant’s home contained incriminating evidence, which

ieemnaieameaiaias

App. 29

was unsupported by the evidence and therefore prejudi-

cial. It seems more likely, however, that the prosecutor

was attempting to suggest to the jury that viewing the

home was not for relevance, but to play on their emotions

so as to prevent the jurors from fully examining the

evidence.

Applying the same reasoning as I did with respect to

other aspects of the prosecutor’s closing argument, I find

that the prosecutor’s remarks, viewed individually or

cumulatively, did not amount to constitutional error. Peti-

tioner was not deprived of a fair trial.

IV. CONCLUSION

For the reasons set forth above, the petitioner’s

request for a writ of habeas corpus is DENIED.

SO ORDERED.

/s/ Illegible

United States District Court

Judge

App. 30

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. SUPERIOR COURT

Nos. 85-70 to 80

85-2653 to 2666

COMMONWEALTH

VS

GERALD AMIRAULT

MEMORANDUM OF DECISION ON DEFENDANT’S

MOTION FOR A NEW TRIAL

Issue: Defendant alleges that one of the deliberating

jurors failed to disclose a material fact or intentionally

misrepresented a fact during the written and oral voir

dire examination of jurors prior to trial. As a result, the

defendant argues that he was denied an impartial jury

and seeks the remedy of a new trial.

Background

1. The impanelment process began on April 15, 1986 and

continued for eight days until a ‘pool’ of 48 potential

jurors was constituted as having been found indifferent.

On the eighth day, the seating process began and both

sides exercised their pre-emptory challenges. Both sides

exhausted their challenges.

2. The court and trial counsel utilized written question-

naires together with oral voir dire examination in the

impanelment process.

Three written documents were completed by all

jurors who reached the final oral examination.

a. The standard, one-page questionnaire ordinarily

filled out by all jurors who are summoned to jury service.

App. 31

b. A special, three-page questionnaire with details

and questions directed to this case was filled out by all

jurors called in during the eight-day period. A list of over

375 potential witnesses was appended to this question-

naire.

c. A second, three-page questionnaire was com-

pleted by jurors called to the courtroom.

3. The process involved the delivery to the judge and

trial counsel each morning of copies of the standard court

questionnaire and the specially-drafted questionnaire

with the witness list appended. Based upon the responses

on these documents, a large number of potential jurors

were eliminated each day without further inquiry.

The remaining jurors filled out the second, specially-

drafted form. Some were eliminated without further

inquiry and the remainder underwent an oral voir dire

examination by the court involving, in some instances,

both general questions and specific questions about the

juror’s answers to the written questions.

4. On Friday, April 18, 1986, Juror X reported for jury

service and underwent the process above described.

In written response to the standard court form which

asks:

“Describe briefly any involvement (past or pre-

sent) as a party or victim in a civil or criminal

case: you or any member of your family:”

the juror answered: “No”.

In written response to the specially-drafted court

questionnaire on page two which asks:

App. 32

“Have you or any member of your immediate

family or any of your close friends ever been a

victim, witness, or defendant in a criminal

case?”

the juror answered: “Yes”.

To the follow-up question that stated:

“If ‘yes’, did the matter come to trial?”

the juror answered: “No”.

5. On oral voir dire, Juror X was asked to specify the

person referred to in response to the question and the

nature of the criminal case. Juror X responded that an

immediate family member had been charged with driving

under the influence. The juror was then asked about bias

based on that event and whether the juror could be fair

and impartial in this case. After receiving satisfactory

answers, Juror X was found to be indifferent without

objection from either side.

6. The trial opened on April 29, 1986. Thereafter, during

the progress of the trial, Juror X asked to speak with the

court one morning before the daily proceedings began. In

chambers and on record in the presence of all counsel, the

juror related that a fellow employee had started to engage

X in a brief conversation about the case and was stopped

from further comments by an admonition from the juror.

In summary, X had stopped at the juror’s place of

employment to retrieve some personal belongings left at

work. A fellow employee began to state that perhaps

Juror X might know of an [sic] certain individual who

had a daughter attending the Fells school. The conversa-

tion went no further due to the intervention of the juror.

App. 33

X had checked the witness list and had found no individ-

ual known to X in the category related by the fellow

employee.

During the inquiry in chambers, the witness list was

further reviewed with X and no known person surfaced.

Nevertheless, X had felt that the incident should be

brought to the attention of the court. After completion of

inquiry, the juror was returned to the jury without objec-

tion from either side.

7. Presentation of evidence closed on June 26, 1986 and

the case was sent out to the jury for deliberation on July

8, 1986. The jury remained in deliberation for twelve

straight days while sequestered and returned verdicts of

‘guilty’ on all fifteen indictments on Saturday, July 19,

1986. Sentencing was scheduled for July 31, 1986.

8. On Monday, July 21, 1986, defense counsel received a

telephone call that alleged that Juror X had been the

victim of a crime or had accused someone of committing

a crime against X some years before and that the accused

had gone to jail as a result. The caller declined to give

specific details by which the allegation could be verified

or corroboraged. (See impounded affidavits of Kimberly

Crespi, secretary, and Atty. Juliane Balliro). After receiv-

ing the call, the defense team was able to verify a few

pieces of the information that revealed only that the caller

knew of or had known Juror X at one time.

9. Defense counsel requested a continuance of the sen-

tencing date from July 31, 1986 to August 21, 1986 to

further investigate this matter and to have additional

time to prepare for disposition. Continuance was granted.

App. 34

10. On July 31, 1986, the court met in conference with

counsel for both sides to review the preliminary affidavit

information. The affidavit material with limited verification

was deemed by the court not to be sufficient to meet a

threshold requirement of [sic] called Juror X in for further

inquiry and hearing. Nevertheless, the court issued an Order

waiving G. L. c. 6, s. 172 (CORI) on August 1, 1986 which

_ permitted defense counsel access to examine criminal court

records in furtherance of their investigation.

12. By August 11, 1986, defense counsel had received

some further points of corroboration (See impounded

affidavit of Joseph Guidetti, investigator) and requested a

conference hearing on the basis of the additional informa-

tion received.

A conference with counsel was held and the addi-

tional affidavits reviewed. Despite the second-level hear-

say nature of the material in the affidavits, the court

agreed to call in Juror X for inquiry on the responses to

the written juror questionnaires and the allegations in the

affidavits.. The court further ordered that the motions,

affidavits and memoranda on this issue be impounded

until further order of court.

13. In response to the summons by the court, Juror X

appeared with counsel on August 19, 1986 for an en

camera hearing in the presence of all counsel and the

defendant.

14. A summary of the inquiry made of Juror X together

with personal identifying information is contained in a

separate set of findings which are impounded at this time

to protect the identity of the juror. These impounded

App. 35

findings are appended and incorporated by reference in

the rulings and decision of the court on this matter.

Standard for Review and Findings on Same

The first purpose of a hearing of this nature is to

determine whether a juror failed to answer honestly a

material question during voir dire examination. The sec-

ond purpose is to demonstrate that a correct response

would have provided a valid basis for challenge. A fur-

ther purpose is to determine whether there was actual

bias or prejudice on the part of the juror so as to deprive

the defendant of an impartial jury and to warrant a new

trial in the interest of justice.

A. Whether Juror X failed to answer honestly the ques-

tions noted (supra) in these findings? —

The court had the opportunity to observe Juror X

during the voir dire process and to review and evaluate

not only the questions now in issue but all answers,

written and oral, at that time. In addition to observing

Juror X during the progress of trial, the court was able to

make certain observations and assessments of Juror X

during the colloquy and inquiry in chambers where Juror

X volunteered the information concerning the work inci-

dent. Finally, the court was able to observe the responses

made to questions asked and the conduct and demeanor

of Juror X during the en camera hearing on August 19,

1986.

At the time of the impanelment phase, I found that

Juror X was fair and impartial and predisposed to follow

App. 36

the instructions of the court in deciding this case solely

on the evidence produced in court.

The ability of Juror X to follow the instructions of the

court was reinforced by the juror’s action in coming

forward to relate that a fellow employee had initiated a

conversation about the case. | was impressed by the

honesty and concern of Juror X for the integrity of the

trial process as that incident could easily have been disre-

garded as being of little or no consequence. Had Juror X

harbored any ill-feeling or animosity toward the defen-

dant, it would appear unlikely that X would have been

troubled or concerned enough to come forward to report

same.

In response to the questions posed to Juror X during

the hearing of August 19, 1986, I am convinced that X’s

responses were honest and that X was candid with the

court concerning the impartiality of X and open-minded-

ness at impanelment.

I am further convinced, based upon the evidence

produced, that Juror X honestly answered the questions

asked during voir dire and that nondisclosure, if any, was

not intentional.

There is no evidence to show that an event or experi-

ence in the life of X indicated a premature conclusion on

the part of X as to the defendant’s guilt or a prejudice by

X against the defendant or an inability on the part of X to

consider the guilt or innocence of the defendant solely

based upon the evidence produced at trial.

B. Whether a correct response would have provided a

basis for challenge for cause?

—————~G Mz

App. 37

The court in this case adopted an extremely liberal

stance as far as eliminating jurors for cause. Rather than

burdening the record with objections during the impanel-

ment process and aware that the trial was predicted to be

lengthy with the availability of a venire pool each day, no

effort was made to apply the more restrictive standard for

a challenge for cause, i.e., an actual bias standard based

upon whether a juror would be able to be fair and impar-

tial. If a question was raised by either side on any basis

concerning a potential juror even despite that juror’s

assurance that he or she could be fair and impartial and

had so convinced the court, the juror was inevitably

excused.

The defendant is entitled to that basis for challenge

for cause which is required by law and not a greater or

more liberal standard adopted by the court for its own

purpose. Based upon the evidence produced, in this

instance, Juror X would have met the legal basis for

surviving a challenge for cause.

C. Whether there was actual bias or prejudice on the

part of the juror so as to deprive the defendant of a fair

trial?

An issue of nondisclosure or lack or full disclosure is

not one that is treated lightly by the court. The use of

questionnaires and oral voir dire examination is a process

by which we seek to eliminate bias and prejudice to the

best of our human capabilities and to select a panel of

jurors who enter the process with open minds and a

disposition to be fair and impartial. ;

The reasons why information is not disclosed or fully

disclosed may vary but it is only those reasons that affect

————————eoOO

App. 38

a juror’s impartiality that can be truly said to affect the

fairness of the trial.

I decline to adopt a standard that bias or prejudice

can be inferred or implied solely on the basis of an event

in the experience of a juror or solely on the basis of

nondisclosure of same.

Based upon the evidence produced and reviewed, it

was and is clear and settled in the mind of the court that

Juror X harbored no bias or prejudice against the defen-

dant when X cleared the voir dire examination.

Therefore, based upon the foregoing together with

the findings impounded and incorporated in this deci-

sion, the defendant’s motion for a new trial on this speci-

fic issue as raised, be and hereby is DENIED.

By the Court,

/s/ Elizabeth J. Dolan

Elizabeth J. Dolan

Associate Justice

Superior Court

August 20, 1986