Opposition Brief — Amirault v. Fair

No. 92-605

In the

Supreme Court of the United States.

October Term, 1992

GERALD AMIRAULT,

Petitioner,

V.

MICHAEL FAIR, COMMISSIONER,

DEPARTMENT OF CORRECTION,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for The First Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Scott Harshbarger

Attorney General

of Massachusetts

Pamela L. Hunt*

Assistant Attorney General

Criminal Bureau

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200 ext. 2826

*Counsel of Record

QUESTION PRESENTED

Whether this Court should grant

certiorari to determine whether the

Court of Appeals properly concluded that

a habeas corpus petitioner failed to

demonstrate that a juror who had no

memory of being a rape victim forty

years previously was either actually or

impliedly biased.

=» 4% «

TABLE OF CONTENTS

QUESTION PRESENTED............eeccceeeee i

ABLE OF AUTHORITIES................-. iii

I EE dg. ck cc cccccccccccccces 1

STATEMENT OF THE CASE..............-..-. 3

REASONS FOR DENYING THE WRIT...... ee 11

I. CERTIORARI IS NOT APPROPRIATE

IN THIS HABEAS CORPUS CASE

WHERE THE LOWER COURT CORRECTLY

FOUND PETITIONER FAILED TO

PROVE A JUROR WAS EITHER

ACTUALLY OR IMPLIEDLY BIASED..11

A. Petitioner Was Afforded An

Adequate Opportunity To

Make Out His Claim Of

B. e u Of Appeals

Applied This Court’s

Precedents In Concluding

Petitioner Did Not Prove

The Juror Was Biased..... 15

S. ourt eals

e) Conc ed That

This Is Not A Case Where

Juror Bias Should Be

che ieee 66% + 64 6 6-c 22

i Ss). LT Tree reer ereTerr Terr eee 30

- iii =

TABLE OF AUTHORITIES

Cases

Amirault v. Fair,

968 F.2d 1404 (lst Cir. 1992)....2,12

Burton v. Johnson,

948 F.2d 1150 (10th Cif. 1991) cece 29

Commonwealth v. Amirault,

399 Mass. 617, 506 N.E.2d 129 (1987)

(Amirault I)... ccccccccccccececs passim

Commonwealth v. Amirault,

404 Mass. 221, 535 N.E.2d 193 (1989)

(Amirault II) .....--eeeeeeeeeeees 2,14

Government of Virgin Islands v. Bodle,

427 F.2d 532 (3d Cir. 1970).......-. 27

Hernandez v. New York,

U.S. i

111 S. Ct. 1859 (1991)... ce eeeees 16

Jackson v. United States,

395 F.2d 615 (D.C. Cir. 1968)...... 27

Marshall v. Lonberger,

459 U.S. 422 (1983) ..cccccccccccees 16

McDonough Power Equipment, Inc. v.

Greenwood,

464 U.S. 548 (1984)...-.+.+.-- 15,20,23

- iv-

Mu’min v. Virginia,

i

—— ——_/

222 Be CEs 2EDD (1992) -svecsvcccccese 22

Ouimette v. Moran,

wae Fume 2 CARE CAE. F9SL) osc adeeds 21

Patton v. Yount,

GGT UsBo Bae (20GE) 6 oc cc esters 16,22

Rushen v. Spain,

SSS GWebe 2a8 CADRT) 6 046.0% Ces KGa ee 16

Smith v. Phillips,

445 U.S. 209 (1982)....... 33,37,.23, 04

Sumner v. Mata,

Soe Weems Dee. CEPRS) 0064 6-060 006 eenae 16

Tinsley v. Borg,

895 F.2d 520 (9th Cir. 1990),

cert. denied,

aah Be Gee BEE (ASGR) 2 ccccvecsesvnss 29

United States ex rel. DeVita v. McCorkle,

248 F.2d 1 (3d Cir.), cert. denied,

355 U.S. 873, reh. denied,

eS a oe ee eee 27

United States v. Allsup,

566 F.2d 68 (9th Cir. ADT Td oveceves 29

United States v. Bynun,

634 F.2d 768 (4th Cir. 1980)....... 28

United States v. Calabrese,

942 F.2d 218 (3d Cir. 1991)........ 17

- VY @

United States v. Casamayor,

837 F.2d 1509 (11th Cir. 2968) ..ce 19

United States v. Colombo,

909 F.2d 711 (2d Cir. 1990)..... 19,20

United States v. Eubanks,

591 F.2d 513 (9th Cir. A ogy} argent 28

United States v. Perkins,

7748 F.2d 1519 (11th Cir. 1984)....28

United States v. Scott,

854 F.2d 697 (5th Cir. ot a 28

Rules

28 U.S.C. §2254(d).... cee eee eee ee, 12

NO. 92-605

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

GERALD AMIRAULT,

Petitioner

Vv.

MICHAEL FAIR, COMMISSIONER,

DEPARTMENT OF CORRECTION,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Fair, Commissioner of

Correction, respectfully requests this

Court deny the petition for writ of

certiorari.

OPINIONS B W

Petitioner’s appeal from the denial

of his motion for new trial on grounds

Of juror misconduct, expedited apart

from the appeal from his convictions, is

reported as Commonwealth v. Amjrault,

399 Mass. 617, 506 N.E.2d 129 (1987)

(Amirault I). His appeal from a renewed

motion for new trial and from the

convictions is reported as Commonwealth

Vv. Amirault, 404 Mass. 221, 535 N.E.2d

193 (1989) (Amirau ee

‘

The opinion of the United States

District Court for the District of

Massachusetts denying a petition for

habeas corpus on October 7, 1991, is

Unreported. Appendix 8-29. on July 8,

1992, the United States Court of Appeals

for the First Circuit affirmed the

denial of the petition. Amirault v.

Fair, 968 F.2d 1404 (lst Cir. 1992) (per

curiam).

e) CAS

Petitioner Gerald Amirault was

indicted by a Middlesex County,

Massachusetts grand jury on fifteen

indictments concerning nine different

children, eight charging rape of a child

and seven charging indecent assault and

battery on a child under fourteen

years. The charges involved multiple

sexual assaults on male and female

children who attended the Fells Acres

Day School in Malden, Massachusetts from

1982 until the school closed in 1984.

Petitioner, son of the school’s owner

and director, worked there as a bus

driver, helped prepare meals and

performed various maintenance tasks at

the school. After a twelve week trial,

he was convicted in July, 1986 on all

indictments.

Jury impanelment lasted for eight

days. Each seated juror answered three

written questionnaires, two of which had

been specifically tailored for the case,

and answered questions individually on

voir dire. The potential jurors were

asked, among other things, whether any

family member or close friend had ever

been a victim, witness or defendant in a

criminal matter, and if so, whether the

matter came to trial. The juror whose

impartiality is challenged responded

affirmatively to the first question and

negatively to the second. On voir dire,

she stated that her son had been charged

with operating under the influence of

alcohol and that the case never came to

trial. She also stated that although

she knew that the trial concerned child

sexual abuse, she knew of no reason why

she could not be fair and impartial if

she was selected as a juror. Amirault

i, 399 Mass. at 620-621, 506 N.E.2d at

132; App. 10-11.

Two days after the verdicts were

returned, defense counsel received a

telephone call from a man who informed

the attorney that he believed that,

while a teenager, the subject juror had

accused the caller’s cousin of rape,

that the case had gone to court and his

cousin had been sentenced to a prison

term. Id. at 619, 506 N.E.2d at 131.

Counsel requested and received

permission from the trial judge for

access to criminal records in order to

investigate the matter. The inquiry

revealed that the juror’s maiden name

had been correctly provided by the

caller along with certain other personal

matters. On the basis of that

corroborating information, counsel

extended the scope of the investigation,

and a private investigator was

retained. Amirault I, 399 Mass. at 620,

506 N.E.2d at 132.

The judge ordered the juror to

appear at an in camera hearing. Her

order informed the juror that the juror

was entitled to have counsel present and

that the juror’s attorney could view

beforehand the documents relating to

petitioner’s motion for a new trial.

id. at 619-620, 506 N.E.2d at 131-132.

At the hearing, which was conducted

in the presence of the petitioner and

all counsel in the judge’s chambers, the

juror testified that she had no memory

of being the victim of a crime.+/ She

said that she knew that something had

happened to her when she was a child but

that it had to have been over forty

years ago, and she must have

1/ The judge asked several initial

questions of the juror. Subsequently,

defense counsel and the prosecutor were

given the opportunity to question her.

2/ The juror was fifty-four years old

at the time of the hearing.

"blocked" the details from her mind.

She also stated that because she had no

memory of being the victim of any crime,

she had answered the questions on the

questionnaire truthfully, to the best of

her knowledge. Finally, the juror

stated that she decided the case solely

on the evidence, and that because she

had no memory of being the victim of a

crime, she had never mentioned anything

about such an experience at any time

during the trial or the jury

deliberation process.

Following the juror’s testimony, the

court clerk told counsel that when the

juror’s attorney called to make

arrangements to see the papers on file

in this case, he stated that something

of a sexual nature had happened to the

juror when she was twelve years old.

Petitioner’s counsel requested that the

court conduct further investigation of

the juror and asked to call other

witnesses and introduce psychiatric

testimony to impeach the credibility of

the juror. The trial judge considered

what the clerk reported, but declined to

extend the investigation or the hearing.

In her decision denying the motion

for a new trial, the trial judge found

that the juror had honestly answered the

pretrial questions and that the

nondisclosure of having been a victim of

a sexual offense was unintentional. The

judge stressed that her conclusion was

Supported by an incident that had

occurred during the trial .2/

3/ The juror had reported to the judge,

in chambers and on the record in the

presence of all counsel, that the juror

had stopped at the juror’s place of

employment to retrieve some personal .-

(footnote continued)

The judge noted that had the juror

harbored any hostility toward the

petitioner, it is not. likely that she

would have reported the incident. She

concluded that the juror was not

actually biased toward the petitioner

and there was no basis to support a

finding of implied bias. Based on her

observations of the juror during

(footnote continued)

belongings. The juror had met a

coworker who sought to engage the juror

in conversation about the case.

Specifically, the fellow worker had

asked whether the juror knew a certain

person whose daughter attended Fells

Acres. The juror had admonished the

coworker that the juror was not able to

discuss anything connected to the case

and the conversation had gone no

further. The juror checked the witness

list to make sure that the individual

mentioned was not scheduled to testify

at trial and did not discover that name

listed. The list was reviewed again in

chambers. The juror was returned to the

jury without objection from either

side.

impanelment, trial, and at the

post-verdict hearing, the judge found

the juror to be fair and impartial and

predisposed to follow the instructions

of the court to decide the case solely

on the evidence produced at trial. She

found that the juror was candid at the

hearing and that if there was any

nondisclosure, it was unintentional.

These findings were upheld by the

Supreme Judicial Court in Amirault :

399 Mass. at 627, 506 N.E.2d at 136.

Subsequent to the decision in

Amirault I, the petitioner filed a

renewed motion for new trial based on

the results of further investigation of

this matter. In his renewed motion, he

submitted an affidavit and court records

to show that the juror had been raped on

June 26, 1946, and that an application

for a criminal complaint had been filed

several days later. Following a

- 10 -

probable cause hearing, the case was

bound over to the grand jury and in the

Superior Court, the individual was found

guilty.

In her order denying the renewed

motion, the judge reviewed the new

evidence submitted by the defendant and

found that the renewed motion "addressed

the prior event in the subject juror’s

life with greater specificity than the

original motion," but, the additional

information did not alter her original

findings, conclusions and rulings on the

issue.

REASONS FOR DENYING THE WRIT

he CERTIORARI IS NOT APPROPRIATE

IN THIS HABEAS CORPUS CASE

WHERE THE LOWER COURT CORRECTLY

FOUND PETITIONER FAILED TO

PROVE A JUROR WAS EITHER

ACTUALLY OR IMPLIEDLY BIASED.

A. Petitioner Was Afforded An

Adequate Opportunity To

e Out s Claim Of

Juror Bias.

In the Court of Appeals, petitioner

conceded 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)."

Amirault v. Fair, 968 F.2d 1404, 1405

(lst Cir. 1992). His challenge to the

presumption of correctness in the Court

of Appeals was a claim that the trial

judge’s findings of impartiality were

clearly erroneous as not Supported by

the record. Id.

In arguing the state court findings -

were erroneous, petitioner complains

that he was "entirely precluded"

(Petition at 7) from demonstrating the

juror was untruthful and biased because

- 12 -

the judge denied his request to offer

testimony of the court clerk and other

witnesses. To the extent he now argues

the state court findings should be

denied the presumption of correctness

because of inadequacies in the hearing

process, that claim was not made below.

Petitioner was given an adequate

opportunity to prove his allegation that

the juror was biased as well as the

factual underpinnings supporting his

claim. Smith v. Phillips, 445 U.S. 209,

217 (1982). The judge granted him

access to old criminal records, received

and considered affidavits, and conducted

an evidentiary hearing at which all

parties were present and had a full

opportunity to pose questions to the

juror. The scope of the hearing was a

matter within the discretion of the

judge, and was well within the purposes

outlined in Smith v. Phillips, 455 U.S.

- 13-

at 225 (O’Connor, J., concurring). This

is especially so given the fact that in

presenting the renewed motion, after the

Supreme Judicial Court had already

rendered its decision in Amirault I,

petitionss waived hearing and submitted

his claim on affidavits and memoranda.

Amirault II, 404 Mass. at 244, 535

N.E.2d at 207.

Once the judge concluded that the

juror had honestly answered the voir

dire questions and that her

nondisclosure of having been a victim

was unintentional, there was no reason

to extend the hearing further. She did

allow petitioner to make an offer of

proof of what the clerk would say, but

as the Supreme Judicial court noted, and

both federal courts agreed, "[t)jhe focus

of the hearing was not whether the rape

had actually occurred, but whether the

juror was biased .... Once the judge

— - ee we ee ee

- ee | eer ees ee ee ee ~_

—_ — ee

accepted the essential truth of the

juror’s testimony, the need for other

witnesses evaporated." Amirault I, 399

Mass. at 627-628, 506 N.E.2d at 136.

See Appendix 4 n.1; 17 n.1.

B. The Court Of Appeals

Contrary to the assertion in the

petition (Petition at 5), the Court of

Appeals did not find that the juror was

not impartial. The lower court properly

concluded that petitioner "failed to

produce convincing evidence that the

trial court’s finding that the juror

answered honestly the questions on voir

dire was erroneous." Appendix 4.

Each court that considered this

matter applied the method of evaluating

juror partiality claims set forth in

McDonough Power Equipment, Inc. v.

Greenwood, 464 U.S. 548, 556 (1984).

- 15 -

Both the state and habeas courts

found that petitioner failed to prove

the juror knowingly concealed anything

on voir dire. The trial judge concluded

that the juror honestly answered the

voir dire questions, crediting the

juror’s testimony that she had forgotten

about the incident. This was solely

within the province of the judge, and is

a matter given special deference on

review in general, and in habeas

proceedings in particular. Patton Vv.

Yount, 467 U.S. 1025, 1036-1037 (1984).

E-g. Hernandez v. New York, 111 S. Ct.

1859, 1869-1870 (1991); Rushen v. Spain,

464 U.S. 114, 120 (1983), citing Sumner

Vv. Mata, 455 U.S. 591, 598 (1982), and

Marshall v. Lonberger, 459 U.S. 422,

431-432 (1983).

The judge’s factual findings have a

solid basis in the record. They were

- 16 <-

not, as petitioner claims (Petition at

7), made solely by accepting the juror’s

version without question. Rather, they

were made after the judge had an

opportunity to observe the juror during

the voir dire and empanelment, at a

mid-trial chambers conference, during

the trial itself, and especially during

the post-trial hearing where the juror

testified. See United States v.

Calabrese, 942 F.2d 218, 227 (3d Cir.

1991).

Simply crediting the juror’s

testimony is not forbidden, Smith v.

Phillips, 455 U.S. at 217 n.7, but here

the judge cited the bases for her

conclusions that the juror was candid,

that the misstatements were inadvertent,

honest mistakes and ultimately, that the

juror was not biased. The judge stressed

that her findings were supported by the

fact that during the trial the juror had

- 17 -

come forward with information that

someone at her place of employment had

tried to talk to her about the case.

She noted that if this juror harbored

any hostility toward petitioner, it was

not likely she would have reported the

incident which might have caused her to

be removed from the jury.

Much of the evidence petitioner

presented in support of his post-trial

motions was directed toward proving that

the juror was in fact the victim of rape

as a teenager, and that she pursued the

matter by testifying against her

attacker in criminal proceedings. The

proferred evidence did not show that the

juror was dishonest in not mentioning it

during the juror selection process. The

juror never denied that something may

have happened to her. Rather, she

stated that she had no memory of being

- 18 =

the victim of a sexual offense, and

therefore any failure to disclose was

not intentional and her voir dire

responses were honest. Petitioner’s

evidence which suggested that the juror

was a rape victim did not impeach her

testimony on this point nor render it

incredible as matter of law. There are

a number of plausible reasons why a

person might "block out" memory of an

unpleasant experience in his or her

youth, particularly a sexual assault.

The passage of time alone, forty years

in this case, could also account for the

absence of memory. See United States v.

Colombo, 909 F.2d 711, 713 (2d Cir.

1990) (relative was government lawyer 30

years before); United States v.

Casamayor, 837 F.2d 1509, 1575 (11th

Cir. 1988) (juror worked with and knew

defendant 23 years previously). The

judge’s findings were reasonable, based

on her assessment and observations of

the juror throughout the trial, the

juror’s demeanor and her testimony.

Even if it could be said that the

juror was untruthful in failing to

disclose her prior experience,

petitioner would not be entitled to a

habeas relief because there was no

showing that such nondisclosure was

motivated by bias toward the

petitioner. McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. at 556 (only

those motives for concealing information

"that affect the juror’s partiality can

truly be said to affect the fairness of

a trial"). See United States v.

Columbo, 909 F.2d at 713 (credibility

bolstered by absence of motive to lie).

Petitioner says *hat the second part

of the McDonough test is also met in

- 20 -

this case because the juror’s correct

revelation of her past experience would

have provided a valid basis for a

challenge for cause. Insofar as in this

case jurors were routinely excused on

voir dire, it is possible that this

juror would have been excused by the

court. The trial judge indicated she

did not apply the legal standard of

cause in excusing prospective jurors.

However, in a habeas proceeding, the

federal courts are obliged to apply

federal law, and grant relief only for

violations of federal constitutional

law. E.g. Oujimette v. Moran, 942 F.2d

1, 4 (1st Cir. 1991). In this

circumstance, the "cause" described in

the McDonough test must be "cause" as

defined by federal constitutional law,

not the so-called "law of the case" in

petitioner’s trial. Under the

constitutional standard, excusal for

- 21-

"cause" is reserved for those jurors who

have such fixed opinions that they

cannot judge impartially the guilt of

the accused. Mu’min v. Virginia,

U.S. ___, 111 S. Ct. 1899, 1908 (1991),

quoting Patton v. Yount, 467 U.S. at

1035. There is no basis for a finding

that this juror could not impartially

decide this case.

Cc. e Court eals

Correctly Concluded That

s Not Case Where

Juror Bias Should Be

Implied.

Petitioner claims that this case

would provide this Court an opportunity

to define the precise circumstances

which would warrant a finding of implied

juror bias, and argues that the Court of

Appeals decision in this case runs

contrary to the decisions of other

courts in considering implied bias.

Certiorari is not appropriate on this

- 22 -

ground because the facts of this case do

not rise to the level of such

extraordinary circumstances as might

require bias to be implied, and the

decision of the Court of Appeals is

consistent with those of other courts

which have considered and applied the

doctrine.

The concept of implied juror bias is

not new to this Court’s jurisprudence.

See Smith v. Phillips, 455 U.S. at

215-216; id. at 221-224 (O’Connor, J.

concurring); id. at 232-239 (Marshall,

Brennan & Stevens, JJ., dissenting) ;

McDonough Power Equipment, Inc. v.

Greenwood, 464 U.S. at 556-557

(Blackmun, Stevens & O’Connor, JJ.,

concurring). A number of state and

federal courts have applied the doctrine

without difficulty. The delineation of

the parameters of the doctrine that

petitioner seeks is neither necessary or

- 23 -

appropriate. The doctrine by its nature

is not susceptible of bright line rules

because the determination of implied

bias is uniquely fact-sensitive.

The Court of Appeals correctly

concluded that this case does not

present such an exceptional situation

that the juror should be presumed biased

as matter of law. It does not approach

the examples cited by Justice O’Connor:

"a revelation that the juror is an

actual employee of the prosecuting

agency, that the juror is a close

relative of one of the participants in

the trial or the criminal transaction,

or that the juror was a witness somehow

involved in the criminal transaction."

Smith v. Phillips, 455 U.S. at 222

(O’Connor, J., concurring). In Smith,

this Court declined to impute bias to a

juror who, during the trial, had sought

- 24 -

employment with the prosecution.

Similarly, it declined to impute bias in

Rushen v. Spain, 464 U.S. at 120-121, to

a juror who had stated on voir dire that

she had no personal knowledge of violent

crimes, but who revealed mid-trial that

a childhood friend had been the victim

of a murder when evidence of that very

murder was presented at the trial on

which she served. In both instances,

the Court deferred to the state courts’

findings of no bias.

The incident attributed to juror’s

past in this case occurred forty years

earlier and had nothing to do with the

case against petitioner. While she was

said to have been the victim of rape of

a child, she would have been fourteen or

fifteen years old at the time; and the

nine children victims in this case were

small children five years old and

younger when they were abused. The rape

- 25 -

of young children, while technically the

same offense, is factually very

different from the rape of a teenager,

and petitioner made no showing that the

crime committed against the juror was

Similar in detail to the crimes of which

he was convicted. The allegations in

this case did not concern the juror

having knowledge or experience with the

defendant or any witness. That they

suggested she was a victim of a sexual

assault should not automatically impute

bias to her.

The state and federal courts

examined cases from other jurisdictions

cited by petitioner which suggest that

bias may be implied by a showing that a

juror or a close family member has been

involved in a situation similar to that

on trial. As the District Court noted,

each of the situations where bias has

- 26 -

been implied consistently have involved

jurors who are aware of a material

circumstance about their experience or

their relationship to the case and

intentionally fail to disclose it. E.g.

United States ex rel. DeVita v.

McCorkle, 248 F.2d 1, 8-9 (3d Cir.)

cert. denied, 355 U.S. 873, reh. denied,

355 U.S. 908 (1957) (in capital case

juror’s purposeful concealment of his

recent victimization of similar crime

for which defendant on trial in capital

case constituted actual demonstrated

bias); Jackson v. United States, 395

F.2d 615, 616, 618 (D.C. Cir. 1968)

(presumption of prejudice found in

capital case where juror failed to

disclose or even admit he was involved

in a “love triangle" homicide similar to

the case on trial); Government of Virgin

Islands v. Bodle, 427 F.2d 532, 533-534

(3d Cir. 1970) (juror’s intentional

- 27 -

failure to reveal in rape trial that his

sister was victim of rape and homicide

warrants reversal under supervisory

powers not constitution); United States

v. Eubanks, 591 F.2d 513 (9th Cir. 1979)

(juror failed to disclose at drug

trafficking trial that his two sons were

currently serving prison terms for

murder-robbery committed to acquire

drugs); United States v. Bynum, 634 F.2d

768 (4th Cir. 1980) (juror’s knowing

failure to disclose, because ashamed,

that he had several relatives who had

been convicted of crimes warrants new

trial); United States v. Perkins, 7748

F.2d 1519 (llth Cir. 1984) (juror lied

when said he was not acquainted with

defendant or involved in two prior

Similar cases; bias presumed); United

States v. Scott, 854 F.2d 697 (5th Cir.

1988) (juror’s knowing failure to

- 28 -

disclose that his brother was deputy

sheriff in office that assisted in

investigation because he did not think

it relevant warrants bias finding);

Burton v. Johnson, 948 F.2d 1150 (10th

Cir. 1991) (in trial of woman whose

defense to killing husband was that she

suffered from long term battered woman’s

syndrome, juror knowingly failed to

disclose she and her children were

victims of long term spousal abuse

continuing through time of the trial).

But see Tinsley v. Borg, 895 F.2d 520

(9th Cir. 1990), cert. denied, 111 S.

Ct. 974 (1991) (no implied bias where

juror in rape trial did not recall at

voir dire that she counseled rape

victim, but remembered it during trial

and did not disclose). Cf. United

States v. Allsup, 566 F.2d 68, 71-72

(9th Cir. 1977) (two jurors who worked

for bank that was robbed should have

- 29 -

been excused for cause; employment

relationship and reasonable apprehension

of violence presumes bias). That the

juror was unaware of a prior incident

which was not factually similar to the

case on trial, and did not intentionally

fail te disclose it, makes this case

inappropriate for applying an implied

bias analysis.

CONCLUSION

For all the reasons stated above,

the petition for writ of certiorari

should be denied.

Respectfully submitted,

SCOTT HARSHBARGER

Attorney General

of Massachusetts huh

pg Ne L. Hunt*

sistant Attorney General

Criminal Bureau

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200 ext. 2826

*Counsel of Record

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