# Opposition Brief — Amirault v. Fair

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 1000

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1421%3A2. Public record. Not legal advice.