CLE SEMINAR

Conducting Effective Voir Dire on Issues of Race

Hosted at: Federal Public Defender's Office

Speaker: Kyana Givens, AFPD from the Western District of Washington

Portland, Oregon Live on April 25, 2018 12:00pm to 1:00pm

Eugene, Oregon Via video conference on April 25, 2018 12:00pm to 1:00pm

Medford, Oregon Via video conference on April 25, 2018 12:00pm to 1:00pm

Bias in Blue: Instructing Jurors to Consider the Testimony of Officer Witnesses with Caution

Vida B. Johnson*

Abstract

Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a just like the testimony of any other witness. Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial. Jurors are to accept that police are no more believable or less believable than anyone else. Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors when a witness with a legally recognized interest in the outcome of the case has testified. In cases where witnesses have received financial assistance or plea deals for their testimony, a special instruction is given. For example, when a witness with a cooperation agreement testifies, the trial court will tell the jury that while the witness has the same obligation to tell the truth as other witnesses, the jury can consider whether the witness has an interest different from other types of witnesses and that her testimony should be considered with caution. In many jurisdictions, when a criminal defendant testifies, the jurors are told, despite the , that he has a “vital” interest in

* Visiting Professor of Law, Georgetown University Law Center, Criminal Defense and Prisoner Advocacy Clinic and Criminal Justice Clinic. Many thanks to Jonathan Anderson, Todd Berger, Keith Findley, Joy Radice, Jenny Roberts, and Robin Walker-Sterling. Special thanks to Colleen Cullen and Carlton Powell for extraordinary research help.

245 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW the outcome of the case and that jurors can give his testimony less weight. Courts have routinely and almost universally refused to allow similar instructions for police officer testimony. Instructions highlighting that officers may be biased or have an interest in the outcome of the case are almost never given in a criminal trial. To the contrary, jurors are effectively told they must not consider the police officer’s status as a police officer when considering her testimony. In many cases, however, police officers are not disinterested parties. They work hand-in-hand with prosecutors in building a case against a defendant. In undercover buy-bust stings, search warrant cases, and assault on police officers cases, police officers are not only the sole witnesses to the alleged offense, they are also invested in the outcome of the case. These cases would not exist without the police officer’s involvement. These crimes—sometimes police-manufactured—are often the result of departmental interests. For example, police go out and act in an undercover capacity and claim to buy drugs or purchase sex because of the agendas that they themselves or their offices have set. Later, they may have to justify decisions they made about the selective use of limited departmental resources with arrests and convictions. Law enforcement may also be motivated by the money at stake in the civil forfeiture related to a criminal case. Recent events in , , Cincinnati, Ferguson, Staten Island, South Carolina, and other locations have created a public dialogue on police credibility. Despite the strong interests of law enforcement, the law has treated law enforcement as impartial when, in reality, officers are in many instances “biased advocates.” This Article calls for jury instructions that reflect the reality of these police officer interests.

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TABLE OF CONTENTS

I. INTRODUCTION ...... 248 II. WITNESS CREDIBILITY AND JURY INSTRUCTIONS ...... 256 A. Police Officers’ Credibility and the Law ...... 256 B. Defendants’ Credibility ...... 259 C. Cooperating Witnesses’ and Other Interested Witnesses’ Credibility ...... 261 III. THE REALITY OF POLICE CREDIBILITY ...... 264 A. Trumped-Up Charges ...... 268 B. and Other Lies ...... 272 C. Police Violence ...... 277 D. Hiding Evidence of Innocence ...... 283 IV. MOTIVATIONS ...... 286 V. PUBLIC VIEW OF POLICE ...... 294 VI. CHANGE IS NECESSARY ...... 296 VII. INVOLVEMENT OF OTHER PLAYERS ...... 299 VIII. SOLUTIONS AND CONCLUSIONS ...... 302

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I. INTRODUCTION In jurisdictions all across America, jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness.1 The instructions were designed, at least in part, to correct for potential juror bias in favor of police officer testimony, but instead serve to preclude fair consideration of police officers’ inherent motives to fabricate or shade testimony to obtain a conviction.2 Fact-finders are told that they should not give police officers’ testimony any greater or lesser weight than that of other witnesses they will hear from at trial.3 They are to accept that police are no more or less believable than anyone else.4

1. See, e.g., United States v. Martinez, 981 F.2d 867, 870–71 (6th Cir. 1992) (“People who are involved in law enforcement . . . [are] evaluated and judged by the same standard as anyone else . . . .”); United States v. Nash, 910 F.2d 749, 755 (11th Cir. 1990) (“The testimony of government agents is to be . . . given the same consideration as that of any other witness. No more and no less weight is to be given their testimony . . . .”); People v. Lopez, 190 A.D.2d 866, 866 (N.Y. App. Div. 1993) (“The court improperly and inexplicably refused to instruct the jury that the testimony of a police officer, in and of itself, is entitled to no greater weight than that of an ordinary citizen. This is a basic and well established precept that is routinely included in trial judges’ instructions to juries.”); People v. Williams, 593 N.E.2d 968, 984 (Ill. App. Ct. 1992) (“This court has recited the general principle that a police officer’s testimony is to be evaluated in the same manner as that of any witness.”). 2. See Thomas G. Hooper, United States v. Lancaster: The Fourth Circuit Reverses Course on Jury Voir Dire in “Swearing Contest” Cases, 76 N.C. L. REV. 233, 233 (1997). 3. See, e.g., Martinez, 981 F.2d at 870–71; Nash, 910 F.2d at 755; Williams, 593 N.E.2d at 984; Lopez, 190 A.D.2d at 866. 4. See, e.g., United States v. Lawes, 292 F.3d 123, 131 (2d Cir. 2002) (“[T]he jurors were instructed at the end of the trial that they were not to view the credibility of law-enforcement witnesses more favorably than other witnesses because of the officials’ occupation.”); United States v. Cornett, 232 F.3d 570, 573 (7th Cir. 2000) (“[T]he court instructed the jury that they are the sole judges of the witnesses’ credibility, and that a law enforcement officer’s testimony is neither more nor less entitled to belief than any other witness.”); State v. Morales, 10 P.3d 630, 634 (Ariz. Ct. App. 2000) (“[T]he trial court instructed the jurors . . . that they were the sole triers of witness credibility and that a police officer’s testimony ‘is not entitled to any greater or lesser weight or believability merely because of the fact that he is a police officer.’”); State v. Marcisz, 913 A.2d 436, 442 (Conn. App. Ct. 2007) (Flynn, J., dissenting) (“Connecticut courts routinely instruct juries that they should evaluate the credibility of a police officer in the same way that they evaluate the testimony of any other witness, and that the jury should ‘neither believe nor disbelieve the testimony of a police official just because he is a police official.’”); People v. Valdez, 53 A.D.3d 172, 179 (N.Y. App. Div. 2008) (Andrias, J., concurring) (“[T]he court gave the jury the standard instruction that the lieutenant’s testimony was to be given no more credence than that of any other witness simply because he was a police officer.”); State v. Clark, 655 N.E.2d 795, 817 (Ohio Ct. App. 1995) (“It has been held that a jury should be given such instruction, when warranted, to the effect that a police officer is not, by virtue of that status, deemed to be more credible than any other witness, but, instead, his credibility and the weight to be given his testimony are to be judged upon the same standard as other witnesses’.”).

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Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors where a witness with a legally recognized interest in the outcome of the case has testified.5 In cases where witnesses have received financial assistance or plea deals for their testimony, a special instruction is given.6 For example, when a witness with a cooperation agreement testifies, the trial court will tell the jury that while the witness has the same obligation to tell the truth as other witnesses, the jury can consider whether the witness “has an interest different from other types of witnesses”7 and that her testimony should “be considered with caution.”8 In many jurisdictions, when a criminal defendant testifies, the jurors are told, despite the presumption of innocence, that he has a “vital” interest in the outcome of the case and that jurors can give his testimony less weight.9 Courts have

5. See, e.g., Martinez, 981 F.2d at 870–71; Nash, 910 F.2d at 755; Williams, 593 N.E.2d at 984; Lopez, 190 A.D.2d at 866. 6. See Gabriel J. Chin & Scott C. Wells, The “” as Evidence of Bias and Motive to Lie: A New Approach to , 59 U. PITT. L. REV. 233, 290–91 (1998). 7. See, e.g., BARBARA BERGMAN, CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.203 (5th ed. 2015) (“[Y]ou may consider whether a witness who has entered into such an agreement has an interest different from other types of witnesses.”). 8. Compare United States v. Austin, 215 F.3d 750, 752 (7th Cir. 2000) (“Although the judge thought an addict-informant instruction inadvisable, he did give an informant instruction, drawn from Instruction 3.13 of the Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1998), telling the jury that the testimony of any cooperating witness should be ‘considered with caution and great care.’”), and United States v. Dunson, 142 F.3d 1213, 1214 (10th Cir. 1998) (“While instructing the jury, the district court told them an informant’s or immunized witness’ testimony should be considered with caution.”), with Lawes, 292 F.3d at 131 (“[T]he jurors were instructed at the end of the trial that they were not to view the credibility of law-enforcement witnesses more favorably than other witnesses because of the officials’ occupation.”); Cornett, 232 F.3d at 576 (“[T]he court instructed the jury that they were the ‘sole judges of the credibility of the witnesses’ and that a police officer’s testimony ‘is neither more nor less entitled to belief than any other witness.’”); Morales, 10 P.3d at 634 (“[T]he trial court instructed the jurors . . . that they were the sole triers of witness credibility and that a police officer’s testimony ‘is not entitled to any greater or lesser weight or believability merely because of the fact that he is a police officer.’”); Marcisz, 913 A.2d at 442 (Flynn, J., dissenting) (“Connecticut courts routinely instruct juries that they should evaluate the credibility of a police officer in the same way that they evaluate the testimony of any other witness, and that the jury should ‘neither believe nor disbelieve the testimony of a police official just because he is a police official.’”); Valdez, 53 A.D.3d at 179 (“[T]he court gave the jury the standard instruction that the lieutenant’s testimony was to be given no more credence than that of any other witness simply because he was a police officer.”); Clark, 655 N.E.2d at 817 (“It has been held that a jury should be given such instruction, when warranted, to the effect that a police officer is not, by virtue of that status, deemed to be more credible than any other witness, but, instead, his credibility and the weight to be given his testimony are to be judged upon the same standard as other witnesses’.”). 9. See United States v. Suriel, 335 F. App’x 136, 138–39 (2d Cir. 2009) (unpublished opinion) (finding no error “affecting [the defendant’s] substantial rights” where a jury instruction warned in

249 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW routinely and almost universally refused to allow similar instructions for police officer testimony.10 Instructions highlighting that officers may be biased or have an interest in the outcome of the case are almost never given in a criminal trial.11 To the contrary, jurors are effectively told they must not consider the police officer’s status as a police officer when considering the police officer’s testimony.12 In many cases, however, police officers are not disinterested parties.13 In undercover buy-bust stings, search warrant cases, and cases of assault on police officers, police officers are not only usually the sole witnesses to the part that the testifying defendant “has a deep personal interest in the outcome of the prosecution” which “creates a motive for false testimony”); Walker v. United States, 982 A.2d 723, 740 (D.C. 2009) (rejecting the defendant’s argument that “when the court instructed the jury that they could weigh [the defendant’s] testimony in light of his ‘interest in the outcome’ of the case, the court erred by singling him out”). 10. See United States v. Davis, 779 F.3d 1305, 1311 (11th Cir.) (holding that “there was no need for a separate instruction on officer credibility,” and the circuit consequently has no standard for such instructions), cert. denied, 136 S. Ct. 97 (2015); United States v. Ouimette, 798 F.2d 47, 49–50 (2d Cir. 1986) (holding that “it is inappropriate to charge that police officers testifying at trial are especially interested in the outcome of the case.”); People v. Liebert, 211 A.D.2d 510, 511 (N.Y. App. Div. 1995) (finding “the defendant’s testimony that he was coerced into making a written confession . . . provided no basis for singling [police officers] out as interested witnesses as a matter of law.”); People v. Melvin, 128 A.D.2d 647, 648 (N.Y. App. Div. 1987) (“Nor is a police officer an interested witness as a matter of law.”); State v. Hunt, 483 S.E.2d 417, 421 (N.C. 1997) (“A party to a criminal case is not entitled to an instruction on witness credibility which focuses on law enforcement officers as a class.”); State v. Sowden, 269 S.E.2d 274, 277 (N.C. Ct. App. 1980) (holding that a police officer is not an interested witness as a matter of law); Commonwealth v. Gibson, 720 A.2d 473, 481 (Pa. 1998) (holding that the trial court did not its discretion in declining to allow jury instructions that specifically referred to the interest of police officers); Commonwealth v. Clark, 512 A.2d 1282, 1285 (Pa. 1986) (finding the trial court’s refusal to give instructions describing police officers as interested witnesses to be appropriate); see also Braxton v. United States, 852 A.2d 941, 944 (D.C. 2004) (indicating that the jurors were instructed to “give neither more weight nor less weight to the testimony of a witness simply because that witness is a police officer”); State v. Bauer, No. 1 CA-CR 14-0866, 2015 WL 8925164, at *3 (Ariz. Ct. App. Dec. 15, 2015) (stating that the jury was instructed to “consider the officer’s testimony the same as they would any other witness”); State v. Jones, 128 A.3d 431, 443 (Conn. 2015) (stating that the trial court instructed the jury to treat the police official’s testimony as they would the testimony of any other witness); People v. McCloud, 121 A.D.3d 1286, 1291 (N.Y. App. Div. 2014) (stating that the jurors were told to “scrutinize the testimony of police officers as they would the testimony of any other witness”). 11. See, e.g., Davis, 779 F.3d at 1311; Ouimette, 798 F.2d at 49–50; see also David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 AM. J. CRIM. L. 455, 498 (1998) (explaining that police witnesses enjoy a “silent presumption of reliability,” which puts the defendant at a distinct advantage). 12. See supra note 1 and accompanying text. 13. See Chin & Wells, supra note 6, at 291 (noting police officers’ incentive to avoid harming the organization for which they work in police testimony).

250 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW alleged offense, but they are also invested in the outcome of the case.14 These cases would not exist without the police officer’s involvement.15 The crimes—sometimes police-manufactured—are often the result of departmental interests.16 For example, police go out and act in an undercover capacity and claim to buy drugs or purchase sex because of the agendas that they themselves or their office have set.17 Later, they may have to justify decisions made about the selective use of limited departmental resources with arrests and convictions.18 An officer also may have to justify the decision to arrest a particular person and the or intrusion into a person’s privacy.19 Sting operations are often tied to police department budgets,20 and individual departments often need to keep their arrest numbers up to justify their budgets.21 Thus, officers go out to make arrests to meet these numbers.22 Millions of dollars recovered in certain types of cases can be seized by the police department and used for the department that recovered the funds.23 Individual officers’ jobs may depend on the existence of a

14. See Sa’id Wekili & Hacinth E. Leus, : Problems of Excessive Force Litigation, 25 PAC. L. J. 171, 189 (1994) (noting that police officers receive expert witness training and are often the only witness); see also Dorfman, supra note 11, at 460–61 (explaining how police officers can be incentivized to commit perjury). 15. See infra Part IV (discussing the departmental and financial incentives to secure arrests). 16. See infra Part IV. 17. See infra note 20 and accompanying text. 18. See infra note 20 and accompanying text. 19. See infra Part IV. 20. See, e.g., Jim Borden, Prostitution Stings to Fund Police Budget, KALAMAZOO GAZETTE, (Oct. 4, 2007, 4:35 PM), http://blog.mlive.com/kzgazette/2007/10/prostitution_stings_to_fund_po.ht ml (“The Genesee County sheriff is turning to prostitutes and their customers to help him balance the budget.”); Hector Castro, Glitches Hurt Effort to Fight Prostitution: Clerking Error Misdirected Money, SEATTLE POST-INTELLIGENCER (July 7, 2005, 10:00 PM), http://www.seattlepi.com/local/a rticle/Glitches-hurt-effort-to-fight-prostitution-1177881.php (“It’s been almost three years since Seattle city leaders created a plan to have those caught hiring prostitutes pay to help them.”); Lisa Getter & Mary Ann Esquivel, Some Cuts in Police Budget Restored, MIAMI HERALD, Sept. 23, 1987, at 1B; Matt Gutman, Erin Brady, Seni Tienabeso, & Candace Smith, How Undercover Cops in a Florida City Make Millions Selling Cocaine, ABC NEWS (Oct. 9, 2013), http://abcnews.go.com/ US/undercover-cops-florida-city-make-millions-selling-cocaine/story?id=20523714 (“Police in a Southern Florida community . . . have been using a controversial tactic to conduct cocaine sting operations and have been raking in millions of dollars in the process.”). 21. See infra Part IV. 22. See infra Part IV. 23. Michael Sallah et al., Stop and Seize: Aggressive Police Take Hundreds of Millions of Dollars from Motorists Not Charged with Crimes, WASH. POST (Sept. 6, 2014), http://www. washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/.

251 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW department or operation.24 In addition to budgetary interests and crime creation, there are professional rewards for officers who make not only arrests, but arrests that result in convictions.25 These issues are just some of the pressures that drive the operations of a police department. In addition to conscious biases that police may hold because of pressures to make arrests—such as the money at stake in the criminal justice system or the professional interests involved in a specific operation—police may hold other biases as well.26 Unconscious racial or socio-economic biases may impact an officer’s views towards defendants, and those biases may have motivated some to become police officers in the first place.27 Institutional or group pressures also impact law enforcement officers.28 Any of these biases—conscious or not—can impact the veracity of an officer’s testimony. What is at stake in the individual criminal trial is not trivial.29 The defendant faces the loss of his freedom and livelihood, and a host of other collateral consequences, should he receive a conviction.30 With mandatory minimum sentences, three-strikes laws, and the death penalty, the risks are obviously significant. Indeed, police and prosecutor misconduct is the second leading cause of in the United States.31

24. See infra Part IV. 25. See infra Part IV (discussing the financial incentives of arrests and convictions, as well as the incentive for individual officers to perform). 26. See infra Part IV. 27. Lorie A. Fridell, Racially Biased Policing: The Law Enforcement Response to the Implicit Black-Crime Association, in RACIAL DIVIDE: RACIAL AND ETHNIC BIAS IN THE CRIMINAL JUSTICE SYSTEM 39, 49–50 (Michael J. Lunch, E. Britt Patterson, & Kristina K. Childs eds., 2008); Robert J. Smith, Reducing Racially Disparate Policing Outcomes: Is Implicit Bias Training the Answer?, 37 U. HAW. L. REV. 295, 297–300 (2015); L. Song Richardson, Police Racial Violence: Lessons from Social Psychology, 83 FORDHAM L. REV. 2961, 2963 (2015); L. Song Richardson, Cognitive Bias, Police Character, and the Fourth Amendment, 44 ARIZ. ST. L.J. 267, 278–86 (2012). 28. See Barbara E. Armacost, Organizational Culture and , 72 GEO. WASH. L. REV. 453, 493–507 (2004); see also Michael Motto, Training to Overcome Institutional Racial Bias in Policing, TAMPA BAY TIMES (May 12, 2012, 4:30 AM), http://www.tampabay.com/news/ perspective/training-to-overcome-institutional-racial-bias-in-policing/1229421 (“The problem is that [law enforcement] need[s] new tools, better strategies and more effective training programs to identify and eliminate institutional bias from their departments.”). 29. See infra Part IV (discussing the repercussions of false convictions on defendants, their families, and their communities). 30. See Padilla v. Kentucky, 559 U.S. 356, 376 (2010) (Alito, J., concurring) (citing Gabriel J. & Richard W. Holmes Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 705–06 (2002)). 31. See % Exonerations by Contributing Factor, NAT’L REGISTRY EXONERATIONS, http://www.

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The standing of the particular department, reputation of specific officers, public relations with the community, money seized in civil forfeiture, and officers’ careers sometimes depend on the officer’s credibility at trial.32 Some police officers have acted in response to institutional pressures and personal motivations.33 As a result, police officers are guilty of all manner of misconduct—planting evidence, creating false charges, perjury, hiding evidence of innocence, and police brutality.34 Events in Chicago, Baltimore, Cincinnati, Ferguson, Texas, Staten Island, South Carolina, and elsewhere have shown that police officers are not always truthful.35 For example, video footage in the police shooting of an unarmed man in South Carolina was in direct contrast to the police report written by the officer who shot the man.36 In Cincinnati, police officers were heard on tape agreeing to facts that did not take place to support an officer who had just shot and killed an unarmed civilian.37 In Chicago, there was evidence that police officers tried to suppress a video of officers shooting an unarmed teen, though the police officers disputed it.38 Issues of police brutality, planting evidence, and dishonesty are becoming part of a national discussion, not just relegated to complaints in poor communities and amongst defense attorneys.39 While there are certainly honest and well-meaning police officers in every police

law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx# (last visited Oct. 14, 2016) [hereinafter Registry of Exonerations]. 32. See infra Part IV. 33. See infra Part III. 34. See infra Part III. 35. See infra Part III. 36. See Michael S. Schmidt & Matt Apuzzo, South Carolina Office is Charged with Murder of Walter Scott, N.Y. TIMES (Apr. 7, 2015), http://www.nytimes.com/2015/04/08/us/south-carolina- officer-is-charged-with-murder-in-black-mans-death.html?_r=0. The officer claimed that he shot the man because he feared for his life after the man had taken his taser. Id. A video of the incident taken surreptitiously by a bystander showed that Walter Scott, the victim, was shot while running away from the officer, with the officer firing eight shots. Id. 37. See Amber Hunt, Criminologist: UC Officer Could Be Charged with Lying, CINCINNATI ENQUIRER (July 31, 2015, 8:38 AM), http://www.cincinnati.com/story/news/2015/07/31/ criminologist-uc-officer-charged-lying/30890861/. Officers agreed that they had seen the victim drag the police officer with his car even though a video shows that it never took place. Id. Officers then lied in a police report about it. Id. In a statement, the Fraternal Order of Police asked citizens “not to jump to conclusions in the case.” Id. 38. See Jason Meisner, Burger King Manager Told Grand Jury of Gap in Laquan McDonald Video, CHI. TRIB. (Nov. 28, 2015, 5:33 PM), http://www.chicagotribune.com/news/ct-chicago-cop- shooting-laquan-mcdonald-met-20151127-story.html. 39. See infra Part V (discussing how the public perception of police has changed in recent years as officer misconduct has received increasing coverage in the media).

253 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW department, even those officers often stay silent about the conduct of others and promote a “blue wall of silence.”40 Recent events have demonstrated that police departments and police unions not only take a unified stand on certain issues, but also wield a tremendous amount of power in the criminal justice system when one of their own is accused of misconduct.41 The lack of indictments for the officer involved in the killing of a teenager in Ferguson, Missouri and the officers involved in the choking death of a man in Staten Island, which was captured on videotape, are demonstrations of that power.42 Prosecutors depend on the police to bring cases and therefore have a powerful disincentive to aggressively prosecute police officers.43 The Ferguson and Staten Island cases also reveal another way in which jury instructions that treat police officers as “any other witness” blink reality.44 Police officers and prosecutors work hand-in-hand.45 The police are the investigators who build the case for the prosecutors and help the prosecutors bring the case to trial.46 When a prosecutor is happy with a police officer’s work on a particular case, that officer’s career can benefit in both formal and informal ways.47 Prosecutors routinely award police with commendations and other honors, and they can also, more casually, offer

40. Chin & Wells, supra note 6, at 237; Rick Bragg, Blue Wall of Silence: Graft Shield Behind Old Code, N.Y. TIMES (Apr. 26, 1994), http://www.nytimes.com/1994/04/26/nyregion/blue-wall-of- silence-graft-shielded-behind-old-code.html?pagewanted=all. 41. See infra Part VI; Conor Friedersdorf, How Police Unions and Arbitrators Keep Abusive Cops on the Street, ATLANTIC (Dec. 2, 2014), http://www.theatlantic.com/politics/archive/2014/12/ how-police-unions-keep-abusive--on-the-street/383258/. 42. See infra Parts III, VI; Ben Kesling & Mark Peters, Ferguson Police Officer Not Charged in Black Teen’s Shooting, WALL STREET J. (Nov. 25, 2014, 1:23 AM), http://www.wsj.com/ articles/ferguson-police-officer-not-charged-in-black-teens-shooting-1416882438. 43. See infra Part IV (discussing the close relationship between the prosecutor’s office and the police, and the potential conflict of interest it creates). 44. See infra Part II. 45. See infra Part IV. 46. See infra Part IV. 47. See Mitchell Byars, Boulder Detective Arrested, Accused of Tipping Off Suspect in Internet Sex Sting, DAILY CAMERA (Sept. 26, 2014, 9:28 AM), http://www.dailycamera.com/ news/boulder/ci_26611062/jack-gardner-boulder-police-detective-arrested?source=pkg (mentioning award given to officer from the district attorney’s office); Clayton Detective Wins New Award, NEWS & OBSERVER (Aug. 2, 2013, 4:15 PM), http://www.newsobserver.com/news/local/ community/smithfield-herald/article10277150.html; Eric Owens, Prosecutor Finds No Police Misconduct in Princeton Professor’s Racism Claim, DAILY CALLER (Feb. 17, 2016, 9:06 AM), http://dailycaller.com/2016/02/17/prosecutor-finds-no-police-misconduct-in-princeton-professors- racism-claim/.

254 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW praise of a police officer’s work to his or her superiors.48 When a police officer does something that disappoints, frustrates, or angers a prosecutor— something that makes obtaining a conviction more difficult for a prosecutor —then the prosecutor’s negative feelings are also likely to be communicated to the officer’s superiors.49 Despite the strong interests of law enforcement, the law has treated law enforcement as impartial when in reality, officers are often what one legal scholar has called “biased advocates.”50 This Article explores whether the current criminal jury instructions and current voir dire practices regarding police officer credibility are fair in all contexts.51 This piece questions whether police officer credibility instructions interfere with the ability of a defendant to get a fair trial and are thus at odds with the realities of the criminal justice system.52 This Article further examines whether in certain cases, especially those where police officer credibility is the central issue, an alternative instruction might be more appropriate.53 The Article will begin with the discussion of the witness credibility instructions and voir dire on the topic.54 Part II is an exploration of police officer bias and interest.55 Part III considers police credibility realities.56 Part IV explores the motivations of some officers to behave outside the law.57 Part V discusses the impact of police on society.58 The Article concludes with suggestions for jury instructions regarding police officers that allow jurors to consider reality.59

48. See infra Part IV. 49. See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 22–25 (Oxford Univ. Press ed., 1st ed. 2007). 50. Melanie Wilson, An Exclusionary Rule for Police Lies, 47 AM. CRIM. L. REV. 1, 3 (2010). 51. See infra Parts II–V. 52. See infra Parts II–V. 53. See infra Part VIII. 54. See infra Part II. 55. See infra Part II. 56. See infra Part III. 57. See infra Part IV. 58. See infra Part V. 59. See infra Part VIII.

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II. WITNESS CREDIBILITY AND JURY INSTRUCTIONS

A. Police Officers’ Credibility and the Law Jury instructions on evaluating the credibility of witnesses are the way that trial judges tell jurors what to make of the witnesses who have testified.60 Jury instructions are given prior to deliberations.61 Most jurisdictions instruct jurors that police officers are not any more or less credible than other witnesses.62 In some jurisdictions, these instructions protect defendants from the popular view that police officers are more credible than civilian witnesses.63 On the other hand, these instructions may result in jurors giving police officer testimony more weight than it fairly deserves when a trial judge specifically tells them not to give the testimony of a police officer any less weight simply because the witness is a police officer.64 The instructions communicate to jurors that police officers are neutral witnesses with nothing to lose and no interest in the outcome of the case.65 The issue of police officers’ credibility was raised as early as 1915.66 The Supreme Court of Kansas rejected arguments on appeal that an instruction should have been given about detectives who had testified at a murder trial.67 Jurors had been given a single general instruction about the evaluation of witnesses, though nothing specific about police officer witnesses.68 In speaking about the detectives, the court wrote: “[N]o sound reason can be suggested why their testimony should be singled out as deserving of less credence than the evidence of witnesses in general. Their credibility may be subjected to strict cross-examination and counsel for the

60. See, e.g., 75A AM. JUR. 2D Trial § 1179, Westlaw (2016) (“If there is a conflict in the evidence, a trial court may give instructions concerning witness credibility.”); MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DIST. COURTS OF THE NINTH CIRCUIT §1.7 (2010). 61. See FED. R. CRIM. P. 30(c) (providing that the court “may instruct the jury before or after the arguments are completed, or at both times”). 62. See supra note 1 and accompanying text. 63. See Dorfman, supra note 11, at 498 (noting the “silent presumption of reliability” police witnesses enjoy, particularly in comparison to defendants). 64. See id. (recognizing the ways in which police officers are, in fact, “interested” witnesses, though they are not considered as such). 65. See id. 66. See State v. Roberts, 147 P. 828, 835 (Kan. 1915). 67. See id. 68. See id.

256 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW defense may comment freely upon their testimony . . . .”69 Courts have long been resistant to instructions that contemplate the possibility that police officers may be motivated to lie or shade their testimony in favor of the prosecution.70 These decisions seem to reflect an unrealistic Norman Rockwell-like image of American police officers. Almost fifty years ago, the D.C. Circuit addressed the issue of whether to give a defense-requested instruction to view uncorroborated police testimony with suspicion.71 In Bush v. United States, the government had one witness to a drug transaction—a police officer.72 At trial, the defense asked for an instruction that an officer’s testimony be viewed with suspicion and acted upon with caution.73 The D.C. Circuit rejected the argument and held that it would be “anomalous” to single out police officer testimony that way.74 The court acknowledged similar instructions regarding accomplice testimony and the testimony of cooperating witnesses75 but concluded, “it would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath their testimony must be viewed with suspicion.”76 Other jurisdictions followed the D.C. Circuit in rejecting instructions regarding police officer bias.77 The Second Circuit also denied a similar request in a 1955 case.78 In 1966, the Eighth Circuit found that an instruction that a police officer’s testimony “should be received with caution” might be appropriate in some circumstances, but nevertheless sanctioned the trial court’s refusal to give it.79 In 1954, the Nebraska Supreme Court rejected a requested instruction

69. Id. 70. See, e.g., United States v. Martinez, 981 F.2d 867, 870–71 (6th Cir. 1992); United States v. Nash, 910 F.2d 749, 755 (11th Cir. 1990); People v. Williams, 593 N.E.2d 968, 984 (Ill. App. Ct. 1992); People v. Lopez, 190 A.D.2d 866, 866 (N.Y. App. Div. 1993); see also Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 110 (1992) (describing how prosecutors may “steer police testimony”). 71. Bush v. United States, 375 F.2d 602, 603 (D.C. Cir. 1967). 72. See id. 73. See id. at 604. 74. Id. 75. See id. 76. Id. 77. See, e.g., State v. Brunori, 578 A.2d 139, 142 n.6 (Conn. App. Ct. 1990); State v. Gambrel, 894 P.2d 235, 237 (Kan. Ct. App. 1995); State v. McQueen, 639 S.E.2d 131, 133 (N.C. Ct. App. 2007); State v. Berrios, 270 N.E.2d 709, 713 (N.Y. 1971). 78. See United States v. Paccione, 224 F.2d 801, 803 (6th Cir. 1955). 79. Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966).

257 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW that would have told jurors evaluating officer testimony to “exercise greater care than in weighing the testimony of other witnesses” because of the officers’ “material bias, prejudice and preconceived opinions of guilt.”80 In 1993, the Supreme Court of North Carolina sanctioned a trial judge’s refusal to give an instruction about police credibility and found that a general instruction about witness credibility was sufficient, citing the D.C. Circuit Court’s language in Bush that to single out officers would be a “dismal reflection on society.”81 While courts have resisted instructing jurors about the potential bias of police officers, virtually every jurisdiction has created an instruction that does just the opposite: jurors are told to treat police officer testimony like the testimony of any other witness.82 Thus, jurors are not told that police officers carry biases inherent to their position in law enforcement, and they are affirmatively told to ignore the connection between officers and the prosecution.83 Many trial courts not only instruct jurors about police credibility, but also allow voir dire on the topic of police credibility.84 The Fourth Circuit found that a trial court erred when it failed to ask whether any prospective jurors might “give special credence and weight to the word of a law enforcement officer simply because of the fact that he occupies that position.”85 The Ninth Circuit also has repeatedly found error when a trial judge fails to ask members of the jury pool (when requested by the defense) whether they would hold the word of police officers in higher regard because of the fact that they are police officers.86 As a result of voir dire on the topic of police credibility, jurors are not only instructed that officers suffer from no known biases when they receive their legal instructions at the end of the trial, but this supposed lack of bias is discussed during jury selection before the trial even begins.87 Thus, jurors are primed early on to

80. Lovings v. State, 62 N.W.2d 672, 676 (Neb. 1954). 81. State v. Williams, 430 S.E.2d 888, 895 (N.C. 1993) (quoting Bush, 375 F.2d at 604). 82. See supra notes 1–4 and accompanying text. 83. See supra notes 1–4 and accompanying text. 84. See, e.g., Dingle v. State, 759 A.2d 819, 837–38 (Md. 2000) (noting that, where applicable, police officer credibility is one of few topics for which voir dire is mandatory). 85. United States v. Lancaster, 96 F.3d 734, 740 (4th Cir. 1996) (citing United States v. Evans, 917 F.2d 800, 806 (4th Cir. 1990)). 86. See, e.g., United States v. Contreras-Castro, 825 F.2d 185, 187 (9th Cir. 1987); United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987); United States v. Baldwin, 607 F.2d 1295, 1298 (9th Cir. 1979). 87. See supra notes 84–86 and accompanying text.

258 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW believe that police officers do not have any special bias.88 The standard instructions that a police officer’s status as a police officer should not be considered and the courts’ refusal to provide instructions regarding police officers’ inherent biases prevent jurors from considering reality when determining their verdicts in criminal cases.89 Courts need to accept that while instructions that account for police officer bias may constitute a “dismal reflection on society,”90 they are nonetheless an accurate reflection.91 In order for criminal defendants to have fair trials, courts can no longer continue to be willfully blind to the sometimes “dismal” truths about law enforcement.92

B. Defendants’ Credibility Courts, as a general matter, recognize the bias at play in situations that do not include law enforcement officials.93 The jury instructions for testifying police officers differ starkly from those of testifying defendants.94 In many jurisdictions, when a defendant testifies, the jury is told that he has an interest in the outcome of the case.95 This is despite and at odds with instructions about the defendant’s presumed innocence.96 For example, a criminal jury instruction in the District of Columbia reads in part, “you may consider the fact that the defendant has [a vital] interest in the outcome of

88. See supra Section II.A; see also Chin & Wells, supra note 6, at 262 (“Even where there is no evidence of defendant misconduct, . . . judges and juries may often retain pro-police biases.”). 89. See supra notes 64–65 and accompanying text. 90. Bush v. United States, 375 F.2d 602, 604 (D.C. Cir. 1967). 91. See generally Chin & Wells, supra note 6. 92. See id. at 299 (“Historical reluctance to view police testimony with suspicion is the cornerstone to many court decisions which place roadblocks along the way towards establishing police veracity on the witness stand.”); cf. Bush, 375 F.2d at 604 (lamenting the “dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion”). 93. Chin & Wells, supra note 6, at 290 (“Many general pattern credibility instructions include a provision indicating to the jury that they should consider a witness’s bias or prejudice . . . .”). 94. See supra notes 5–10 and accompanying text. 95. See Alexander Goldenberg, Interested, but Presumed Innocent: Rethinking Instructions on the Credibility of Testifying Defendants, 62 N.Y.U. ANN. SURV. AM. L. 745, 746 (2007) (“[A]t the end of the trial, the judge offered a caution about the testimony of the defendant, warning of his ‘deep personal interest in the result of his prosecution,’ which ‘creates a motive for false testimony.’”). 96. See id. at 776 (noting the inconsistency between the presumption of innocence and instructions related to defendants’ self-interests).

259 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW his trial.”97 In contrast, the police officer testimony instruction reads, “[a] police officer’s testimony should be evaluated by you just as any other evidence in the case . . . . In no event should you give either greater or lesser weight to the testimony of any witness merely because s/he is a police officer.”98 In 1895, the United States Supreme Court sanctioned an instruction that singled out the testimony of the accused.99 In a 1972 district court case in the District of Columbia, the trial judge gave an instruction telling the jurors that the defendants had a “vital interest in the outcome of the case.”100 On appeal, the D.C. Circuit found no problem with the instruction.101 Similarly, the Ninth Circuit approved an instruction that directed the jury to consider “any interest the defendant may have in the outcome of the case, his hopes and his fears and what he has to gain or lose as a result of [the jury’s] verdict.”102 The Fifth Circuit also approved an instruction that read, in part, “you are entitled to take into consideration the fact that he is the defendant and the very keen personal interest that he has in the result of your verdict.”103 This undoubtedly creates confusion on the part of jurors.104 Jurors are instructed that the defendant is presumed innocent and then instructed that his testimony deserves careful scrutiny, because he is a defendant.105 Jurors are essentially told that they should presume the defendant innocent but doubt him when he says so. Not every court allows special instructions that comment on the interests of the defendant.106 The Third Circuit instructs jurors to treat the testimony just like that of any other witness.107 The Tenth Circuit has a similar model

97. See Bergman, supra note 7, at Criminal Jury Instruction 2.209. 98. See id. at Criminal Jury Instruction 2.207. 99. Reagan v. United States, 157 U.S. 301, 311 (1895). 100. United States v. Jones, 459 F.2d 1225, 1226 (D.C. Cir. 1972). 101. See id. at 1227. 102. Louie v. United States, 426 F.2d 1398, 1402 (9th Cir. 1970). 103. Nelson v. United States, 415 F.2d 483, 487 (5th Cir. 1969). 104. See Goldenberg, supra note 95, at 779–80 (noting juror confusion while determining what standards to apply in assessing credibility of testifying defendants). 105. See supra notes 95–96, 99–103 and accompanying text. 106. See, e.g., COMM. ON MODEL CRIMINAL JURY INSTRUCTIONS THIRD CIRCUIT, MODEL CRIMINAL JURY INSTRUCTION 4.28 (Oct. 2012), http://www.ca3.uscourts.gov/sites/ca3/files/2014% 20Chapter%204%20final.pdf. 107. Id. (instructing the jury to “examine and evaluate [the defendant’s] testimony just as [it] would the testimony of any witness”).

260 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW instruction.108 Such instructions are, however, relatively commonplace in state trial courts.109 The justification for an instruction highlighting the defendant’s testimony as different from other witnesses’ is the reality that the defendant does have an interest in the outcome of the case.110 One might say that an instruction suggesting a defendant may lie simply because he is the defendant stems from a “dismal reflection” on a society that purports to adhere to a presumption of innocence in criminal trials.111

C. Cooperating Witnesses’ and Other Interested Witnesses’ Credibility In addition to the testimony of the defendants, there are other occasions in which trial courts give special instructions about the credibility of witnesses.112 For example, when a witness receives a benefit for his testimony, such as a witness who has received a reduced charge in exchange for his testimony, a jury instruction about that bias is given to the jury.113

108. See CRIMINAL PATTERN JURY INSTRUCTION COMM. OF THE U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT, CRIMINAL PATTERN JURY INSTRUCTIONS 1.08 (2011), https://www.ca10. uscourts.gov/sites/default/files/clerk/Jury%20Instructions%20Update%202015.pdf. 109. See, e.g., State v. Medrano, 65 A.3d 503, 518 (Conn. 2013) (“[T]he jury was to evaluate the defendant’s testimony in the same fashion as the testimony of the other witnesses.”); Givens v. State, 751 S.E.2d 778, 781 (Ga. 2013); United States v. Patel, No. 06-60006, 2009 WL 1579526, at *16 (W.D. La. June 3, 2009) (recognizing “general instructions given to the jury which state, ‘The testimony of the defendant should be weighed and his credibility evaluated in the same way as that of any other witness’”); Castro v. United States, No. 04 CR. 664-2 TPG, 2013 WL 6508816, at *2 (S.D.N.Y. Dec. 11, 2013) (“The defendant did not need to testify. But he did, and, now that he has testified, you will judge his credibility in the way that you judged the credibility of any witness.”); State v. Kittell, 847 A.2d 845, 850 (R.I. 2004); State v. King, 897 A.2d 543, 549 (Vt. 2006) (quoting State v. Camley, 438 A.2d 1131, 1134 (Vt. 1981)) (“The jury has the right to believe all, part, or none of the testimony of any witness, and this rule applies to the defendant as well as any other witness.”); see also State v. Clemmons, 639 S.E.2d 110, 118 (N.C. Ct. App. 2007). 110. See United States v. Suriel, 335 F. App’x 136, 138–39 (2d Cir. 2009) (unpublished opinion) (finding no error “affecting [the defendant’s] substantial rights” where a jury instruction warned in part that the testifying defendant “has a deep personal interest in the outcome of the prosecution” which “creates a motive for false testimony”); Walker v. United States, 982 A.2d 723, 740 (D.C. 2009) (rejecting the defendant’s argument that “when the court instructed the jury that they could weigh [the defendant’s] testimony in light of his ‘interest in the outcome’ of the case, the court erred by singling him out”). 111. Cf. Bush v. United States, 375 F.2d 602, 604 (D.C. Cir. 1967); see generally Goldenberg, supra note 95 (exploring the conflict between instructions regarding the defendant’s self-interest and the general presumption of the defendant’s innocence). 112. See, e.g., infra notes 113 and 122 and accompanying text. 113. See, e.g., United States v. Austin, 215 F.3d 750, 752 (7th Cir. 2000) (“Although the judge thought an addict–informant instruction inadvisable, he did give an informant instruction, drawn

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Trial courts also recognize the danger of witness testimony even when no official agreement exists.114 Jurors often get special instruction about the credibility of witnesses with pending cases, or those who are on probation or parole at the time of their testimony.115 Jurors are told by the judge that the testimony of those witnesses should be received “with caution.”116 Courts often recognize that the testimony of cooperating witnesses, accomplices, co-defendants, witnesses with plea agreements, witnesses with pending cases, and witnesses who are on probation, parole, or supervised release merit special attention and instructions.117 The acknowledgement that these witnesses have an interest other than the truth is due to their recognized bias.118 Witnesses who might avoid prosecution—as in the case of the accomplice who is getting the benefit of a generous plea offer—and those who are on probation or parole all have a special motive to curry favor with the government because of their status.119 Thus, they have different motivations than the typical witness, such as an innocent bystander eyewitness who does not know any of the players in a criminal prosecution and has no special motives other than the truth.120 In 1952, the Supreme Court wrote:

The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to prove credibility by cross-examination and to have the issues submitted to the jury with careful

from Instruction 3.13 of the Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1998), telling the jury that the testimony of any cooperating witness should be ‘considered with caution and great care.’”); United States v. Dunson, 142 F.3d 1213, 1214 (10th Cir. 1998) (“While instructing the jury, the district court told them an informant’s or immunized witness’ testimony should be considered with caution.”). 114. See generally R. Michael Cassidy, “Soft Words of Hope”: Giglio, Accomplice Witnesses, and the Problem of Implied Inducements, 98 NW. U. L. REV. 1129 (2004). 115. See id. at 1143, 1163 (discussing the roles of parole and probation as incentives for accomplice testimony). 116. Dunson, 142 F. 3d at 1214. 117. See supra notes 7–10 and accompanying text (discussing jury instructions for those considered to be interested witnesses). 118. See supra notes 5–9 and accompanying text. 119. See generally Cassidy, supra note 114 and accompanying text. 120. See infra notes 121–23 and accompanying text.

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instructions.121 It is from that language that many lower courts have drawn the rights to give special charges to the jury in informer cases.122 Defendants may also request a special instruction for witnesses with financial interest in a case.123 Reward money and relocation money purportedly for witness protection often comes from police or prosecutors.124 Some witnesses are paid directly by the police or prosecutors and these “special employees” are paid in exchange for information and assistance.125 Money can be a significant motivator for witnesses.126 As Justice Blackmun wrote in United States v. Bagley about an informant who was promised money, the “possibility of a [financial] reward” gave the witnesses “a direct, personal stake in respondent’s conviction,” and the “fact that the stake was not guaranteed . . . but was expressly contingent on the Government’s satisfaction with the end result, served only to strengthen any incentive to testify falsely in order to secure a conviction.”127 Police officers are also interested parties; the motivations to lie, shade

121. On Lee v. United States, 343 U.S. 747, 757 (1952). 122. Territory of Guam v. McGravey, 14 F.3d 1344, 1353 (9th Cir. 1994); People v. Guiuan, 957 P.2d 928, 936 (Cal. 1998) (“The testimony of an in-custody informant should be viewed with caution and close scrutiny.”); State v. Patterson, 886 A.2d 777, 789 (Conn. 2005); Pitchford v. State, 45 So.3d 216, 239 (Miss. 2010) (“The Court instructs the jury that the law looks with great suspicion and distrust on the testimony of an alleged accomplice or informant. The law requires the jury weigh the testimony of an alleged accomplice or informant with great care, caution and suspicion.”); Dodd v. State, 993 P.2d 778, 784 (Ok. Ct. App. 2000) (“The testimony of an informer who provides evidence against a defendant must be examined and weighed by you with greater care than the testimony of an ordinary witness.”); see also United States v. Luck, 611 F.3d 183, 187 (4th Cir. 2010). 123. See, e.g., United States v. Gambler, 662 F.2d 834, 847 (D.C. Cir. 1981) (“The trial court instructed the jury that this theory did make sense legally, and that, ‘[a]ccordingly, he does have a financial interest in the outcome and you may consider that fact in your consideration and weighing of his testimony just as you consider any interest anybody else may have in the outcome of this case weighing their testimony.’”). 124. E.g., United States v. Marino, 658 F.2d 1120, 1122 (6th Cir. 1981) (“The DEA gave [one witness] a $5,000 reward for his cooperation. In addition, pursuant to the Witness Protection Program, the government granted [another witness] assistance of approximately $815 a month for relocation expenses until she found other employment.”). 125. Athelia Knight & Benjamin L. Weiser, Pushing Behind the Crowds, WASH. POST (July 16, 1982), https://www.washingtonpost.com/archive/politics/1982/07/16/pushing-behind-the-crowds/63 23bb0e-bc72-40aa-a361-ea22c0707952/. 126. Vida B. Johnson, When the Government Holds the Purse Strings, but Not the Purse, 38 N.Y.U. REV. LAW. SOC. CHANGE 491, 495 (2014). 127. United States v. Bagley, 473 U.S. 667, 683 (1985).

263 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW the truth, and protect colleagues exist.128 Just like a witness seeking a reward or a witness with some other interest in the case, police officers often have financial, career, ideological, or institutional interests at play, particularly in certain types of cases.129 Although it may reveal a “dismal” side of our criminal justice system to acknowledge these biases, ignoring police officer bias does not make it go away. Few would dispute that police officers in undercover stings are more interested in the outcome of the case than the innocent bystander eyewitness, yet the testimony of each—the police officer and the bystander—is treated exactly the same by trial courts.130 While the reality of the defendant’s interest and cooperating witnesses’ interests has been used to justify an instruction that singles out their testimony, the reality of police officers’ interests, however, has not led to a similar instruction on police credibility.131

III. THE REALITY OF POLICE CREDIBILITY Although the events in Chicago, Baltimore, Cincinnati, Ferguson, Staten Island, and South Carolina, are twenty-first century headlines, tensions between police and the communities they are sworn to serve is not a new phenomenon.132 The riots,133 the murder of Amadou Diallou,134 and the Abner Louima135 took place twenty years ago in the

128. See Chin & Wells, supra note 6, at 237 (noting the “blue wall of silence” that encourages protection of fellow officers). 129. See infra Part IV (discussing the various motives behind police officer misconduct). 130. See supra notes 1–4 and accompanying text. 131. See supra notes 9–11 and accompanying text. 132. See, e.g., James Pilcher, Cincinnati Reaction Not Like ‘Ferguson . . . Baltimore,’ USA TODAY (Sept. 9, 2015), http://www.usatoday.com/story/news/nation/2015/07/31/cincinnati-reaction- not-like-ferguson-baltimore/30924365/; Dan Sewall, Trials for Killings of Blacks by Police Unfold in 2 Cities, GOUPSTATE.COM (Nov. 3, 2016), http://www.goupstate.com/news/20161103/trials-for- killings-of-blacks-by-police-unfold-in-2-cities; see infra notes 133–138 and accompanying text. 133. See Hector Tobar & Leslie Berger, Tape of L.A. Police Beating Suspect Stirs Public Furor, L.A. TIMES (Mar. 6, 1991), http://articles.latimes.com/1991-03-06/news/mn-274_1_police- department-investigation; Amy Wallace & David Ferrell, Verdicts Greeted with Outrage and Disbelief, L.A. TIMES (Apr. 30, 1992), http://articles.latimes.com/1992-04-30/news/mn-1888_1_los- angeles. 134. See Michael Cooper, Officers in Bronx Fire 41 Shots, and an Unarmed Man Is Killed, N.Y. TIMES (Feb. 5, 1999), http://www.nytimes.com/1999/02/05/nyregion/officers-in-bronx-fire-41-shots- and-an-unarmed-man-is-killed.html. 135. See Joseph P. Fried, ‘Depraved’ Night Detailed at Close of Louima Trial, N.Y. TIMES (June 3, 1999), http://www.nytimes.com/1999/06/03/nyregion/depraved-night-detailed-at-close-of-louima-

264 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW mid-1990s.136 Those scandals revolved around police brutality.137 The of the Police Department broke in the late 1990s and the Tulia, Texas scandal took place in 1999.138 Both scandals showed the extent of ’s wide-ranging impact.139 In the Tulia case, forty-six people were falsely accused and thirty-five people were found guilty based on the perjury of a single police officer witness.140 In the Rampart case, 156 convictions were overturned or dismissed because of the planting of evidence, perjury, and other misdeeds, as well as the subsequent cover up by police.141 As opposed to the brutality scandals of the 1990s, the Tulia and Rampart scandals involved police credibility more directly.142 Misconduct in led to 500 cases being dismissed.143 These are not the only large-scale police scandals that have cost innocent people their liberty; other scandals in New Jersey, New York, , and Louisiana have cost many their freedom as well.144 Police corruption is a significant problem in our criminal justice system that has led to thousands of wrongful convictions.145 There are more than 1600 people who have been exonerated in this country.146 Many more have been wrongfully convicted but are still in or jail.147 Police

trial.html. 136. Id. 137. See supra notes 133–35 and accompanying text. 138. Russell Covey, Police Misconduct as a Cause of Wrongful Convictions, 90 WASH. U. L. REV. 1133, 1137 (2013). 139. Id. at 1143 (recognizing that Rampart and Tulia were part of large-scale police misconduct that is a “disturbingly common feature of the criminal justice system”). 140. See Betsy Blaney, Figure in Bogus Tulia Drug Arrests Faces Prison: Jury Says Ex-Agent Perjured Himself, HOUS. CHRON. (Jan. 15, 2005, 6:30 AM), http://www.chron.com/news/houston- texas/article/Figure-in-bogus-Tulia-drug-arrests-faces-prison-1640062.php. 141. Id. 142. See Covey, supra note 138, at 1145 (noting that Rampart and Tulia involved a kind of police misconduct that may not be easily detectable). 143. Aubrey Whelan & Mark Fazlollah, Two Philly Cops Charged with Brutality; Video Shows Man Being Struck, Beaten, PHILA. INQUIRER (Feb. 7, 2015), http://articles.philly.com/2015-02- 07/news/58881522_1_two-officers-fairhill-ramsey. 144. Covey, supra note 138, at 1141–42. 145. Id. at 1185. 146. See Samuel Gross, The Staggering Number of Wrongful Convictions in America, WASH. POST (July 24, 2015), https://www.washingtonpost.com/opinions/the-cost-of-convicting-the- innocent/2015/07/24/260fc3a2-1aae-11e5-93b7-5eddc056ad8a_story.html?utm_term=.999481a33 f13. 147. Id.

265 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW misconduct has played a role in an untold number of those cases.148 One estimate put the number of provable exonerated persons who were victims of purposeful police lies and cover-ups at over a thousand.149 Many others have been victims of willful police misconduct but cannot prove it.150 Many exonerations come from DNA or other forensic evidence being examined or reexamined.151 But in most criminal prosecution there is no forensic evidence, or at least none that can conclusively prove innocence.152 Additional instances of police corruption did not end in conviction.153 Still others are the victims of unconscious biases by the police resulting in unreliable evidence presented at trial.154 The number of those who have suffered as a result of police misdeeds cannot be quantified but is likely in the tens or hundreds of thousands.155 In some instances, as will be explored in more detail below, police have suppressed information that could have exonerated a defendant: they have fabricated confessions, fabricated evidence, influenced eyewitnesses to make false identifications, and falsely claimed to have observed criminal acts.156 Whether police violence and dishonesty are relatively new phenomena of the past few decades, as a result of pressures due to the war on drugs,157 or whether they have always existed and are just more easily documented as a result of the proliferation of recording devices and citizens less willing to trust police, the issues with police brutality and credibility are disturbing, to

148. See Covey, supra note 138, at 1143. 149. See id. at 1142. 150. See id. at 1153, 1170. 151. See Registry of Exonerations, supra note 34. 152. See Ed Timms, Travis Completing DNA Review: Wrongful Convictions Prompted Inquiry, Unprecedented in Texas, DALL. MORNING NEWS, Mar. 24, 2002, at 45A; A Question of Innocence, ACLU, https://www.aclu.org/question-innocence (last visited Oct. 16, 2016) (“In many cases, there is no physical evidence to test.”). 153. See Chin & Wells, supra note 6, at 250 (recognizing that police misconduct may have contributed to juror suspicion of police testimony and a rise in acquittals). 154. See Section III.A (discussing instances of police fabricating evidence to secure arrests and convictions). 155. See Covey, supra note 138, at 1135, 1185 (noting that “[h]undreds of thousands, perhaps millions, of people have been convicted of such crimes” due to police misconduct, though the information available is “too limited to permit any accurate generalizations” about conviction frequency). 156. See infra Sections III.A–D (discussing specific instances of police misconduct). 157. See Bill Trine, The Genesis of Increasing Incidents of Police Brutality: The War on Drugs, PRISON LEGAL NEWS (June 3, 2015), https://www.prisonlegalnews.org/news/2015/jun/3/genesis- increasing-incidents-police-brutality-war-drugs/.

266 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW say the least.158 It is important to remember that the stories in this Article regarding police credibility and violence are very likely the tip of the iceberg.159 Police officers are probably involved in far more misconduct and corruption than has been unearthed.160 Many believe that both a “loyalty ethic” and a “blue wall of silence” exist and keep much misconduct covered from public scrutiny.161 Police officers protect one another even when they misbehave.162 Even honest officers fail to report misconduct by other corrupt officers.163 Those who fail to keep the secrets of other officers face ostracism by their colleagues or even risk being placed in harm’s way in dangerous situations.164 That there is a term for the phenomenon—“the blue wall of silence”—is troubling as well.165 Though few doubt that this “blue wall” exists,166 some legal observers believe that it begins in the police academy.167 The 2015 police shooting of an unarmed black man caught on video in South Carolina may never have become a news story without the video footage created by a brave bystander.168 For every act of police corruption caught on video, there

158. See Nicole Flatow, What Has Actually Changed About Police Brutality in America, from Rodney King to Michael Brown, THINKPROGRESS (Sept. 11, 2014), https://thinkprogress.org/what- has-changed-about-police-brutality-in-america-from-rodney-king-to-michael-brown-e6b29a2feff8#. pn1waag21 (analyzing the timeline of police brutality from the 1991 Rodney King beatings to the 2014 Ferguson shooting); Natasha Bach, Police Violence Has Been Going on Forever, HUFFINGTON POST (Aug. 28, 2014, 12:00 PM), http://www.huffingtonpost.com/ 2014/08/23/police-brutality- michael-brown_n_5700970.html (noting the ease with which police brutality may be “caught on camera” today). 159. See infra Section III.C. 160. See George Joseph, Leaked Police Files Contain Guarantees Disciplinary Records Will Be Kept Secret, GUARDIAN (Feb. 7, 2016, 7:00 AM), https://www.theguardian.com/us-news/2016/ feb/07/leaked-police-files-contain-guarantees-disciplinary-records-will-be-kept-secret (reporting that many disciplinary records and complaints against police officers are kept secret or destroyed). 161. Chin & Wells, supra note 6, at 251–55. 162. See id. at 251. 163. See id. 164. See id. at 254. 165. Id. 166. See id. at 237–40 nn.16–18. 167. See id. at 253 n.75. 168. See Mark Berman, ‘Look for Justice’: A Shooting in South Carolina and the Power of Video, WASH. POST (Apr. 9, 2015), https://www.washingtonpost.com/news/post-nation/wp/2015/04/09/ look-for-justice-a-shooting-in-south-carolina-and-the-power-of-video/?tid=a_inl&utm_term=.20b48 27bc772.

267 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW are likely many more that are not.169 Misconduct that undermines trust in the police takes many shapes: brutality, perjury, hiding , and fabricating and planting evidence.170 Many times these phenomena are related.171 Once an officer crosses one of these lines, it is possible he will cross another to cover up other misconduct.172 It is not hard to imagine an officer who is willing to go outside the law to assault a citizen would then go outside the law to lie about the brutality in the face of a civilian complaint.173 Similarly, an officer who plants evidence has no choice but to lie about it if the case goes to trial in order to not reveal his initial transgression.174 Brutality, the planting of evidence, and the prosecution of the innocent are all interrelated.175

A. Trumped-Up Charges Unfortunately, fabricating evidence is something that has taken place all around the country.176 Of course, this behavior results in innocent people being convicted of crimes they did not commit.177 This reality should be reflected in jury instructions.178 In 2011, a police officer in admitted to framing innocent citizens to bolster arrest statistics.179 His testimony came in the trial against another officer who was convicted of planting evidence.180 The detective testified under oath that planting drugs on innocent people is common within the New York City Police Department.181 This was a stunning admission

169. See id. (noting how Justice Department investigations revealed that one police department “failed to properly record these episodes [of police use of force]”). 170. See Covey, supra note 138, at 1137–38. 171. See id. 172. See Chin & Wells, supra note 6, at 255. 173. See id. at 254. 174. See Covey, supra note 138, at 1154. 175. See supra notes 170–74 and accompanying text. 176. Covey, supra note 138, at 1137–42. 177. See id. 178. See Chin & Wells, supra note 6, at 289. 179. See Tim Stelloh, Detective Is Found Guilty of Planting Drugs, N.Y. TIMES (Nov. 1, 2011), http://www.nytimes.com/2011/11/02/nyregion/brooklyn-detective-convicted-of-planting-drugs-on- innocent-people.html. 180. See id. 181. See id.

268 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW impacting numerous innocent victims in New York.182 A large-scale scandal stunned the Philadelphia Police Department as well.183 Six police officers in Philadelphia faced racketeering conspiracy charges in federal court for robbing citizens of more than $400,000 in cash, drugs, and property.184 In addition to those serious cases, the officers were accused of planting evidence and lying on police paperwork to cover up their misdeeds.185 They were acquitted, while a seventh officer pleaded guilty to corruption charges.186 Despite the acquittals of the officers, over 500 convictions involving the officers’ work have been vacated.187 In a suburb of Detroit, Michigan, video footage from a police cruiser’s dashboard camera appeared to show a police officer planting drugs after beating and tasing an unarmed man.188 One of the officers involved had previously been tried by federal prosecutors for planting evidence while with the Detroit Police Department and had been the subject of twelve federal lawsuits.189 Corruption is not limited simply to urban places like New York and Detroit; police officers in small towns plant evidence as well.190 In 2015, a police officer in Kenosha, Wisconsin admitted to planting evidence in a murder case.191 In order to connect the suspect to a crime, he placed an

182. See Mike McPhate, Record Number of False Convictions Overturned in 2015, N.Y. TIMES (Feb. 3, 2016), http://www.nytimes.com/2016/02/04/us/record-number-of-false-convictions-over turned-in-2015.html?_r=0; see also Murray Weiss, New York City Arrests Rose to Record Levels During Bloomberg Era, NYPD Stats Show, HUFFINGTON POST (Dec. 21, 2012, 9:02 AM), http://www.huffingtonpost.com/2012/12/21/new-york-city-arrests-record-levels-bloomberg-era-nypd _n_2345085.html. 183. See infra notes 184–87 and accompanying text. 184. See Jeremy Roebuck, Testimony Begins in Philadelphia Narcotics Officers’ Trial, PHILA. INQUIRER (Apr. 2, 2015), http://articles.philly.com/2015-04-02/news/60724441_1_drug-suspects- narcotics-officers-john-speiser. 185. See Joseph A. Slobozian & Mark Fazlollah, Phila. Judge Overturns 158 Convictions Tied to Rogue Narcotics Cops, PHILA. INQUIRER (Aug. 9, 2015), http://articles.philly.com/2015-08- 09/news/65354633_1_narcotics-officers-perry-betts-convictions. 186. See id. 187. See id. 188. See Robert Allen & L.L. Braiser, Lawsuits Against Inkster Cop in Beating Go Back for Years, DETROIT FREE PRESS (Mar. 27, 2015, 12:28 AM), http://www.freep.com/story/news/local/ michigan/wayne/2015/03/26/inkster-police-floyd-dent-beating-video-william-melendez-federal-laws uit/70519854/. 189. See id. 190. See infra notes 191–93 and accompanying text. 191. See Janine Anderson, Charges Filed Against Former Kenosha Officer, KENOSHA NEWS (Mar. 12, 2015), http://www.kenoshanews.com/news/charges_filed_against_kenosha_officer_

269 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW identification card in a backpack in a home searched during the investigation in order to implicate the police’s primary suspect.192 The result of the officer’s misdeeds was a strong case for the prosecution.193 In Santa Clara, California, police officers planted drugs after finding no contraband when searching a woman’s home.194 Audio from the dashboard camera captured the officers planning to do it.195 The woman was arrested for a bogus charge, but prosecutors threw out the case once the audio came to light.196 A police officer in Durham, North Carolina seems to have accidentally shot himself after pulling over a motorist in 2012.197 While radio transmissions, documents filled out by the officer, and even gunshot residue testing from the day of the incident made it clear that the officer shot himself, the police and prosecutors later prosecuted the motorist for shooting the officer.198 The officer testified at trial that the motorist shot him, but the motorist was ultimately acquitted by the jury at the trial.199 In Los Angeles, California, police officers accused a grocery store worker of possessing cocaine.200 The case relied exclusively on the word of the two officers.201 After the officers testified under oath on direct examination at trial about the manner of the man’s arrest, the defense attorney produced a videotape that “sharply contradicted” the officers’ accounts.202 While officers testified that they located the drugs after

482631565.php; see also Katie Delong, Former Kenosha Police Officer Who Admitted to Planting Evidence in Murder Case Has Now Been Charged, FOX 6 NOW (May 14, 2015, 6:02 PM), http://fox6now.com/ 2015/05/14/former-kenosha-police-officer-who-admitted-to-planting-evidence- in-murder-case-has-now-been-charged/. 192. See id. 193. See id. 194. See Radley Balko, Lawsuit: Audio Depicts Another Police Conspiracy to Plant Drug Evidence, WASH. POST (Apr. 23, 2014), https://www.washingtonpost.com/news/the-watch/wp/2014/ 04/23/lawsuit-audio-depicts-another-police-conspiracy-to-plant-drug-evidence/?utm_term=.6aa68a4 b154d. 195. See id. 196. See id. 197. See Mark Joseph Stern, “1 Shot Fired by Officer,” SLATE (Aug. 19, 2015, 4:47 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2015/08/cop_shot_himself_and_bla med_a_black_driver_police_officer_kelly_stewart.html. 198. See id. 199. See id. 200. Jack Leonard, Surprise Video Puts an End to Drug Trial, L.A. TIMES (July 1, 2008), http://articles.latimes.com/2008/jul/01/local/me-video1. 201. Id. 202. Id.

270 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW watching the man throw them a few feet away, the video showed the officers searching for more than twenty minutes for something.203 Then, one officer is heard telling another officer to be “creative in your writing,” apparently referring to the police reports.204 Prosecutors moved to dismiss the case after reviewing the tape.205 One of the most egregious and infamous cases, discussed earlier, took place in Tulia, Texas.206 One police officer framed forty-six people, almost all black, of selling drugs.207 About twenty percent of the town’s adult black population were accused of being drug dealers.208 Despite the fact that there was nothing to corroborate the police officer’s word—no recordings of transactions, no fingerprints, no other witnesses—over the course of eighteen months, his word was sufficient to end the liberty of many.209 Only after proof that one of the accused was in another state at the time she was described to have been selling drugs did the officer’s accusations come unraveled.210 There is little reason to believe that these cases—from every corner of the country—are isolated incidents.211 Police body cameras and dashboard cameras, as well as cell phone cameras, are still relatively new technology.212 While far more police activity is now captured on video than ever before, most still remains unrecorded.213 Furthermore, it is not

203. See id. 204. Id. 205. See id. 206. See infra notes 207–10. 207. Adam Liptak, $5 million Settlement Ends Case of Tainted Texas Sting, N.Y. TIMES (Mar. 11, 2004), http://www.nytimes.com/2004/03/11/us/5-million-settlement-ends-case-of-tainted-texas-sting .html?_r=0. 208. Kevin Johnson, Taking the “Garbage Out” in Tulia, Texas: The Taboo on Black–White Romance and in the “War on Drugs,” 2007 WIS. L. REV. 283, 286 (2007). 209. See id. at 287. 210. See generally Liptak, supra note 207. 211. See supra notes 160–64 and accompanying text. 212. See, e.g., Monica Davey, Chicago to Expand Use of Police Body Cameras, N.Y. TIMES (Nov. 29, 2015), http://www.nytimes.com/2015/11/30/us/chicago-police-body-cameras.html; Pervaiz Shallwani, Ana Campoy, & Valerie Bauerlein, Prevalence of Video Puts Police Under the Lens, WALL STREET J. (Apr. 10, 2015, 7:20 PM), http://www.wsj.com/articles/prevalence-of-video- puts-police-under-the-lens-1428708033; 5 Major Moments in Cellphone History, CBC NEWS (Apr. 3, 2013), http://www.cbc.ca/news/technology/5-major-moments-in-cellphone-history-1.1407352 (“In 2002, the first phones with built-in cameras became publicly available . . . .”). 213. See Radley Balko, A New Report Shows the Limits of Police Body Camera, WASH. POST (Feb. 5, 2016), https://www.washingtonpost.com/news/the-watch/wp/2016/02/05/a-new-report- shows-the-limits-of-police-body-cameras/?utm_term=.9fba7939aaf9 (discussing issues of public

271 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW unreasonable to assume that the police are aware of the increasing scrutiny of their conduct and the proliferation of video footage, and in most instances are sophisticated enough to avoid having their malfeasance captured on video.214

B. Perjury and Other Lies The police officer at the heart of the Tulia case was ultimately found guilty of perjury.215 While his lies captured national attention because of the scope and extent of perjury, lying under oath is not uncommon.216 It is so common that there is even a name for it—“testilying.”217 Testilying is not a new phenomenon either.218 In 1996, a former Los Angeles police officer pleaded “no contest” to perjury for his testimony in the high profile O.J. Simpson criminal murder trial, after denying he had used the word “nigger” when describing black people.219 During trial testimony, he denied having used the word in the last ten years when, in fact, there existed an audio recording of him using the word forty-one times and bragging about terrorizing black suspects of crimes.220 Police officer credibility has been an issue for more than fifty years.221 In a study of misdemeanor drug cases in New York in the 1960s, before and

access, review, storage, tampering, and implementation of police footage that hinder recording); Kimberly Kindy et al., A Year of Reckoning: Police Fatally Shoot Nearly 1,000, WASH. POST (Dec. 26, 2015), http://www.washingtonpost.com/sf/investigative/2015/12/26/a-year-of-reckoning-police- fatally-shoot-nearly-1000/ (reporting that only six percent of police killings of civilians were captured by body cameras); Jay Stanley, Police Body-Mounted Cameras: With Right Policies in Place, a Win for All, ACLU, https://www.aclu.org/sites/default/files/assets/police_body- mounted_cameras-v2.pdf (last updated Mar. 2016) (noting that “[h]istorically, there was no documentary evidence of most encounters between police officers and the public”). 214. See Hamed Aleaziz, Increased Use of Police Cameras Raises New Questions, S.F. CHRON. (July 25, 2015, 9:59 PM), http://www.sfchronicle.com/crime/article/Increased-use-of-police- cameras-raises-new-6405687.php (describing how officers can “essentially choose what to put on the camera and what not to put on the camera” in certain circumstances). 215. Johnson, supra note 208, at 287. 216. See id. at 306. 217. See id. 218. See infra notes 219–20 and accompanying text. 219. James Sterngold, Detective in Simpson Case Pleads No Contest to Perjury Count, N.Y. TIMES (Oct. 3, 1996), http://www.nytimes.com/1996/10/03/us/detective-in-simpson-case-pleads-no- contest-to-perjury-count.html. 220. See id. 221. See infra notes 222–25 and accompanying text.

272 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW after Mapp v. Ohio, 222 the landmark decision that brought the exclusionary rule to the states, showed the number of cases where officers claimed that suspects had dropped the drugs—making the drug less likely to be suppressed—went up, suggesting that police were lying.223 This discovery showed that officers falsely claimed that citizens dropped drugs to get around the exclusionary rule, rather than admit that they had been stopped and searched them without cause.224 In speaking about suppression testimony after the study’s results were released, Judge Irving Younger wrote in a published opinion that, “policemen are committing perjury.”225 Indeed, the , an agency created in 1992 to investigate police misconduct within the New York City Police Department, found that perjury “is widely tolerated by corrupt and honest officers alike, as well as their supervisors.”226 The commission was created by then-mayor David Dinkins.227 That the commission was created at all speaks volumes.228 More recently in New York, prosecutors have had to review the cases of more than fifty people convicted of murder where there was involvement by a single detective who used the same witness over and over.229 The witness falsely claimed to have heard a number of confessions.230 So far, eleven convictions have been vacated as a result of this detective’s corruption.231 The detective claimed in multiple cases that defendants had confessed to crimes by saying “[y]ou know what happened, you have it all.”232 These

222. 367 U.S. 643 (1961). 223. See Sarah Barlow, Patterns of Arrests for Misdemeanor Narcotics Possession: Manhattan Police Practices 1960–1962, 4 CRIM. L. BULL. 549, 549–50 (1968). 224. Id. 225. People v. McMurty, 314 N.Y.S.2d 194, 196 (N.Y. Crim. Ct. 1970). 226. MILTON MOLLEN ET AL., COMM’N TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEP’T, N.Y., ANATOMY OF FAILURE: A PATH FOR SUCCESS 40 (1994). 227. See id. at 1. 228. See Selwyn Raab, New York’s Police Allow Corruption, Mollen Panel Says, N.Y. TIMES (Dec. 29, 1993), http://www.nytimes.com/1993/12/29/nyregion/new-york-s-police-allow-corruption- mollen-panel-says.html?pagewanted=all. 229. Frances Robles & N.R Kleinfield, Review of 50 Brooklyn Murder Cases Ordered, N.Y. TIMES (May 11, 2013), http://www.nytimes.com/2013/05/12/nyregion/doubts-about-detective-haunt- 50-murder-cases.html. 230. See id. 231. See Registry of Exonerations, supra note 34; see also Albert Samaha, Jonathan Fleming Released by Brooklyn D.A. 24 Years After Wrongful Conviction, VILLAGE VOICE (Apr. 8, 2014, 2:30 PM), http://www.villagevoice.com/news/jonathan-fleming-released-by-brooklyn-da-24-years-after- wrongful-conviction-6709608. 232. Oren Yaniv, Retired NYPD Detective Louis Scarcella Gets Confronted About ‘Fake’

273 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW

“confessions” were unsigned and unrecorded.233 Of course, by claiming to have witnessed these dubious confessions to murder, the detective was able to make himself appear to be a better detective and seal cases that might have been weaker or nonexistent without those confessions.234 New York is not the only jurisdiction in which police lie frequently.235 In Atlanta in 2007, police officers “regularly lied to obtain search warrants and fabricated documentation of drug purchases.”236 Their conduct was revealed after police executed an illegally obtained warrant on the home of an elderly woman who lived alone.237 The warrant was a “no-knock” warrant because officers had falsely claimed that the home was outfitted with security cameras.238 The officers removed the security bars and entered the home, without announcing that they were police officers.239 The woman fired a single shot at the intruders and was then shot and killed by officers.240 After shooting her, the officers handcuffed the elderly woman and searched her home for drugs.241 When none turned up, they planted marijuana to justify the search of the house.242 The investigation of this horrific crime and cover-up resulted in prosecutors learning that corruption was widespread, particularly within the vice unit of the Atlanta police department.243 In 2011, a Tulsa, Oklahoma police officer was convicted of perjury for claiming in a search warrant affidavit that a man, Ronald Crawford, was at home during the execution of a search warrant.244 However, Mr. Crawford

Confession in Brooklyn Courtroom, N.Y. DAILY NEWS (Dec. 5, 2014, 7:34 AM), http://www. nydailynews.com/new-york/nyc-crime/ex-cop-confronted-fake-confession-article-1.2034432. 233. Id. 234. See id. (“N.Y.P.D. and prosecutors thought he was one of the best homicide detectives. The only problem was he never followed the rules.”); see also Michelle Alexander, Why Police Lie Under Oath, N.Y. TIMES (Feb. 2, 2013), http://www.nytimes.com/2013/02/03/opinion/sunday/why- police-officers-lie-under-oath.html (revealing the ways in which police departments are rewarded for high numbers of arrests). 235. See infra notes 236–51 and accompanying text. 236. Shaila Dewan & Brenda Goodman, Prosecutors Say Corruption in Atlanta Police Dept. Is Widespread, N.Y. TIMES (Apr. 27, 2007), http://www.nytimes.com/2007/04/27/us/27atlanta.html. 237. See id. 238. See id. 239. See id. 240. See id. 241. See id. 242. See id. 243. See id. 244. Omer Gillham et al., Tulsa Police Trial: One Officer Convicted on 8 Counts; Second Officer Acquitted, TULSA WORLD (Oct. 2, 2013, 6:30 PM), http://www.tulsaworld.com/news/local/tulsa-

274 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW had proof that he was in Texas at the time that the warrant was served.245 The officer’s lie that Mr. Crawford was at home during the search was in effort to tie the man to the contraband that the officer claimed he had found.246 In Cincinnati, Ohio, an officer falsely accused a juvenile of a crime in order to pressure his mother to cooperate with a police investigation.247 The officer knowingly accused the child of six robberies and imprisoned him for nine days in order to get the mother to cooperate in the officer’s investigation of the robberies.248 The officer admitted to the prosecutor that he knew the child had nothing to do with the offenses.249 The officer was convicted of abduction of the child and of a witness.250 A large scandal took place in Dallas, Texas, involving police credibility from 2001 to 2002.251 Officers accused scores of civilians of possessing cocaine.252 Forensic drug tests conducted at a laboratory showed that the substance was actually sheetrock.253 In each case, the police had claimed in reports that the substances had tested positive on the scene for cocaine.254 Most of the arrests were made by the same two officers.255 Lawyers for the arrestees questioned how the substance could have tested positive for cocaine if there was no cocaine present, suggesting the officers had been “trumping up” cases against these defendants.256 Unfortunately, some of the defendants pleaded guilty without testing the drugs.257 One man was

police-trial-one-officer-convicted-on-counts-second-officer/article_cec9830a-9451-5b3a-93e4-904b 3916a0aa.html. 245. See id. 246. See id. 247. Ohio v. Steele, 3 N.E.3d 135 (Ohio 2013); see also Dennis Whalen, Supreme Court Upholds Police Officer’s Conviction for Witness Intimidation, Reinstates Conviction for Abduction, CT. NEWS OHIO (June 17, 2013), http://www.courtnewsohio.gov/cases/2013/SCO/0618/112075_ 112178.asp#.V8X-2ZMrJo4. 248. See Steele, 3 N.E.3d at 137. 249. See id. at 143. 250. See id. at 143–44. 251. See Paul Duggan, ‘Sheetrock Scandal’ Hits Dallas Police, WASH. POST (Jan. 18, 2002), https://www.washingtonpost.com/archive/politics/2002/01/18/sheetrock-scandal-hits-dallas-police/b b1aec8f-dc34-4294-b192-b496a448dd70/. 252. See id. 253. See id. 254. See id. 255. See id. 256. Id. 257. See id.

275 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW actually deported as a result of his guilty plea.258 Others spent time locked away in jail awaiting trial.259 Almost everyone accused—in what later became known as the Dallas Sheetrock scandal—was Latino.260 Officers blamed the mistake on a longtime informant, who earned $210,000.261 While it was unclear whether the officers were involved in the framing of the innocent individuals, many of whom were blue-collar immigrants, in each instance, police claimed that they had conducted testing at the scene, which evidence suggested may be false.262 Other signs pointed to the police being in on the frame-up.263 Despite the size of the alleged buys, Dallas police never involved the Drug Enforcement Administration.264 In addition, no cash or weapons were ever seized with the drugs, which should have seemed out of the ordinary to the officers.265 The Dallas District Attorney ultimately dismissed almost seventy cases as a result of the troubling evidence.266 Many legal observers have noted that police are most likely to commit perjury in justifying the detention and search of citizens that produces evidence of guilt.267 Since judges, rather than jurors, decide the legality of a Fourth Amendment seizure or search, one might argue that that reality does not justify or support an instruction at trial about police officer bias.268 This argument, however, overlooks the distressing problem of police perjury and fails to acknowledge that the police bias at play in justifying Fourth Amendment contacts goes to police reliability and credibility in general.269 An officer who willingly lies to support his search or seizure is likely

258. See id. 259. See id. 260. Mark Donald, Dirty or Duped?, DALL. OBSERVER, (May 2, 2002, 4:00 AM), http:// www.dallasobserver.com/news/dirty-or-duped-6394643. 261. See id. 262. See id. 263. See id. 264. See id. 265. See id. 266. See id. It is also worth noting that the prosecutors enabled this scandal by not turning over the information about the informant or revealing that police had used an informant. See id. Prosecutors had a duty to disclose this information. See id. 267. See Covey, supra note 138, at 1177–83; Julia Simon-Kerr, Systemic Lying, 56 WM. & MARY L. REV. 2175, 2202–05 (2015); Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. COLO. L. REV. 1037, 1044 (1996). 268. See Chin & Wells, supra note 6, at 264; Dorfman, supra note 11, at 473. 269. See Mollen et al., supra note 226, at 36.

276 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW untrustworthy in other instances.270 It also illustrates how invested officers become in justifying their actions and arrests.271 This is just another example of how police officer testimony is more like the testimony of other witnesses who have an interest in the outcome of the case.272 These cases illustrate that some police officers will lie to make their own investigations appear stronger or advance their careers.273 They will do so even when their lies could result in the imprisonment of the innocent.274 The scale of the scandals makes it clear that these are not isolated incidents but have affected hundreds of innocent victims.275

C. Police Violence A police officer in South Carolina killed an unarmed man who was running away from him by shooting him eight times in the back.276 By chance, a man walking to work captured the incident using his cell phone’s video camera.277 Once the video footage of the murder surfaced, the officer was immediately arrested and charged with murder.278 The videotape of the incident proved that officer’s initial reports about the shooting were false and sought to justify the killing.279 The killing of Michael Brown, an unarmed teenager, in Ferguson, Missouri, and the chokehold in Staten Island, New York, made national headlines in 2014, because the officers would not be prosecuted.280 The cases prompted protests all around the United States and

270. See id. at 43. 271. See generally Chin & Wells, supra note 6, at 16 (discussing many examples of why police officers become invested in the outcomes of trials). 272. See id. 273. See also Alexander, supra note 234 (noting the incentive for police officers to meet stop or arrest quotas to “prove their ‘productivity’”). 274. See, e.g., Donald, supra note 260. 275. See Mollen et al., supra note 226, at 36. 276. Michael Schmidt & Matt Apuzzo, South Carolina Officer Is Charged with Murder of Walter Scott, N.Y. TIMES (Apr. 7, 2015), http://www.nytimes.com/2015/04/08/us/south-carolina-officer-is- charged-with-murder-in-black-mans-death.html. 277. James Queally, Ex-South Carolina Officer Indicted in Deadly Shooting that Was Caught on Video, L.A. TIMES (June 8, 2015, 10:58 AM), http://www.latimes.com/nation/nationnow/la-michael- slager-indicted-20150608-story.html. 278. See id. 279. See id. 280. See Erik Eckholm & Matt Apuzzo, Darren Wilson Is Cleared of Rights Violations in Ferguson Shooting, N.Y. TIMES (Mar. 4, 2015), http://www.nytimes.com/2015/03/05/us/darren-

277 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW the issue of police brutality has once again come to the front and center of national dialogue.281 Unfortunately, since those tragic deaths, there have been other high- profile killings of unarmed civilians by police.282 Police officers in Baltimore and Cincinnati have been charged in high-profile killings of other unarmed men.283 Police killings of civilians are so common and numbers of the dead are so high that now maintains a database to keep track.284 Police killed 965 civilians in 2015, although not all of these citizens were unarmed.285 While police killings of unarmed civilians have recently received more media attention, police violence is nothing new.286 The Chicago police department, for example, has been marred by a legacy of secret torture of suspects.287 For almost twenty years, between 1972 and 1991, over one hundred black men were “shocked with cattle prods, beaten with telephone books and suffocated with plastic bags.”288 One man had a shotgun placed

wilson-is-cleared-of-rights-violations-in-ferguson-shooting.html; J. David Goodman & Al Baker, Wave of Protest After Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case, N.Y. TIMES (Dec. 3, 2014), http://www.nytimes.com/2014/12/04/nyregion/grand-jury-said-to-bring-no- charges-in-staten-island-chokehold-death-of-eric-garner.html#. 281. See Soraya Nadia McDonald, Protesters Across the Country React to Grand Jury’s Decision Not to Indict Darren Wilson, WASH. POST (Nov. 25, 2014), https://www.washingtonpost.com/ news/morning-mix/wp/2014/11/25/protesters-across-the-country-react-to-grand-jurys-decision-not-t o-indict-darren-wilson/; Ashley Southall, Protesters Fill Streets Across U.S. over Decision in Garner Case, N.Y. TIMES (Dec. 4, 2014), http://www.nytimes.com/2014/12/05/nyregion/protests-continue- after-grand-jury-decision-in-eric-garner-case.html. 282. See Kimberly Kindy et al., A Year of Reckoning: Police Fatally Shoot Nearly 1,000, WASH. POST (Dec. 26, 2015), http://www.washingtonpost.com/sf/investigative/2015/12/26/a-year-of- reckoning-police-fatally-shoot-nearly-1000/ (explaining that the federal government’s “failure to track the use of deadly force by police” sparked the launch of the Washington Post’s database). 283. See Richard Pérez-Peña, University of Cincinnati Officer Indicted in Shooting Death of Samuel Dubose, N.Y. TIMES (July 29, 2015), http://www.nytimes.com/2015/07/30/us/university-of- cincinnati-officer-indicted-in-shooting-death-of-motorist.html; Pamela Wood & Jessica Anderson, Unarmed Man Shot, Killed by Baltimore County Officers in Owings Mills, BALTIMORE SUN (June 25, 2015, 8:34 AM), http://www.baltimoresun.com/news/maryland/crime/bs-md-co-police-involved- shooting-20150625-story.html. 284. See Kindy et al., supra note 282. 285. See id. 286. See David Rudovsky, Police Abuse: Can the Violence be Contained?, 27 HARV. C.R.-C.L. L. REV. 465, 465–72 (“After three decades and much constitutional litigation, the [police] continue, in many ways unabated.”). 287. The Violent Legacy of Chicago’s Police, N.Y. TIMES (Apr. 21, 2015), http://www.nytimes. com/2015/04/21/opinion/the-violent-legacy-of-chicagos-police.html. 288. See id.

278 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW in his mouth and a cattle prod attached to his genitals until he confessed.289 Others had plastic bags placed over their heads until they nearly suffocated.290 Police Commander , who oversaw the secret torture chamber, served only four and a half years in prison for his role.291 Sometimes the torture was to extract confessions from suspects—casting doubt on the veracity of those “admissions.”292 Not only did officers engage in horrible brutality, they also omitted any information about the illegal tactics in testimony and reports.293 This information was never turned over to the defense, obviously implicating police credibility and suppression of exculpatory evidence.294 A number of convictions were overturned as a result of these horrors becoming exposed.295 This torture shows that the police may not simply be neutral fact-gatherers but may, in fact, be biased witnesses.296 In 1999, police in New York fired forty-one shots into an unarmed black man, Amadou Diallo, who had not committed a crime.297 Three of the officers had been involved in shootings previously.298 The case captured national attention because of the volume of shots fired and the apparent lack of reason for the shooting.299 While the officers were prosecuted, all were

289. See Don Babwin, Chicago Offers Reparations Package to Police Torture Victims, NWI TIMES (Apr. 14, 2015), http://www.nwitimes.com/news/local/illinois/chicago-offers-reparations- package-to-police-torture-victims/article_71b8be26-7104-5063-bbbb-ee4bb771acb5.html; Aamer Madhani, Chicago to Pay Reparations to Police Torture Victims, USA TODAY (Apr. 15, 2015, 2:29 PM), http://www.usatoday.com/story/news/2015/04/14/chicago-to-pay-reparations-jon-burge-police- torture-victims/25766531/. 290. See Michael E. Miller, Cop Accused of Brutally Torturing Black Suspects Costs Chicago $5.5 Million, WASH. POST (Apr. 15, 2015), https://www.washingtonpost.com/news/morning- mix/wp/2015/04/15/closing-the-book-on-jon-burge-chicago-cop-accused-of-brutally-torturing-africa n-american-suspects/. 291. See id. 292. See id. 293. See Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 BUFF. L. REV. 1275, 1289, 1294 (1999) (noting how officers did not keep record of what occurred, with internal audits leading to accusations of losing files and failing to interview witnesses). 294. See id. 295. See Burge Gets Booked, CHI. TRIB. (Oct. 22, 2008), http://articles.chicagotribune.com/2008- 10-22/news/0810210270_1_jon-burge-torture-death-row-inmate; see also G. Flint Taylor, The Chicago Police Torture Scandal: A Legal and Political History, 17 CUNY L. REV. 329, 352, 365 (2014). 296. See Chin & Wells, supra note 6, at 264. 297. See Cooper, supra note 134. 298. See id. 299. See Jane Fritsch, The Diallo Verdict: The Overview; 4 Officers in Diallo Shooting Are Acquitted of All Charges, N.Y. TIMES (Feb. 26, 2000), http://www.nytimes.com/2000/02/26/

279 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW acquitted after prosecutors allowed the defense to the trial out of New York City to a more police-friendly venue in upstate New York.300 For some, this shooting demonstrated that police did not see themselves as protectors of poor communities of color, but rather at war with them.301 New Orleans police officers shot six unarmed citizens on the Danzinger Bridge who were trying to escape flooding in 2005, killing two men and wounding four others.302 The men were shot with an unauthorized AK-47 assault rifle.303 After the shooting, officers fabricated evidence in an effort to justify the shooting, claiming that the “victims had guns and traded fire with the officers.”304 One officer pleaded guilty to helping cover up the shootings,305 and five were convicted after a trial in 2011.306 However, due to misconduct by the federal prosecutors, the five officers will have new trials.307 In what became a high-profile case, New York City officers in 1997 sodomized with a broomstick.308 The rape was committed with such force that Mr. Louima suffered a torn rectum, a lacerated bladder, and broken teeth.309 This horrendous brutality was committed because an officer mistakenly believed that Mr. Louima had struck him in a bar.310 While one officer was convicted of the offense, another was convicted of

nyregion/diallo-verdict-overview-4-officers-diallo-shooting-are-acquitted-all-charges.html. 300. See id. 301. See Fred Mazelis, Trial in Amadou Diallo Killing Is Moved out of New York City, WORLD SOCIALIST (Dec. 23, 1999), https://www.wsws.org/en/articles/1999/12/nyc-d23.html. 302. See Beth Ethier, Appeals Court Orders New Trial for Officers Convicted of Bridge Shootings After Katrina, SLATE (Aug. 19, 2013, 5:30 PM), http://www.slate.com/blogs/the_slatest/2015/ 08/19/danziger_bridge_police_trial_appeals_court_panel_says_new_orleans_federal.html. 303. See id. 304. Id. 305. See Ex-Cop Pleads Guilty in Katrina Bridge Shooting Cover-Up, CNN (Feb. 10, 2010, 10:58 PM), http://www.cnn.com/2010/CRIME/02/24/katrina.cop.charges/. 306. See Danziger Bridge Jury Form Details Charges Against 5 Guilty NOPD Officers, TIMES- PICAYUNE (Aug. 5, 2011, 2:57 AM), http://www.nola.com/crime/index.ssf/2011/08/danziger_ bridge_verdict_sheet.html. 307. Andy Grimm, 5 NOPD Officers Will Get New Trial in Danziger Bridge Case, Appeals Court Rules, TIMES-PICAYUNE (Aug. 18, 2015, 7:52 AM), http://www.nola.com/crime/index.ssf/2015/ 08/5_nopd_officers_will_get_new_t.html. 308. Sewell Chan, The Abner Louima Case, Ten Years Later, N.Y, TIMES (Aug. 9, 2007), http://cityroom.blogs.nytimes.com/2007/08/09/the-abner-louima-case-10-years-later/. 309. See id; Leonard Greene, Louima’s Haunted High Life 10 Years Later, N.Y. POST (July 30, 2007, 9:00 AM), http://nypost.com/2007/07/30/louimas-haunted-high-life-10-years-later/. 310. See Chan, supra note 308.

280 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW perjury for lying about the case.311 The perjury was the result of the police officer’s desire to cover up his misconduct.312 In addition to police officer and the shootings of unarmed civilians, more run-of-the-mill assaults of civilians by police have also been documented.313 In 2015, a police officer in a Texas suburb assaulted a teenage girl wearing a bikini bathing suit at a pool party by throwing her to the ground face-down and pointing a gun at her and others.314 In 2008, a New York Police Department officer assaulted a bike activist by knocking him off his bike in the middle of Times Square.315 The officer then arrested and charged the victim with attempted assault, disorderly conduct, and resisting arrest.316 However, because the entire incident was captured by a bystander on video and uploaded to YouTube,317 the charges against the cyclist were dropped.318 The video shows the officer shove one bicyclist out of many at a bike-riding event, seemingly on a whim.319 The officer was convicted, not of the assault, but of lying on the police report.320 As the bike rider’s case illustrates, when police brutality results in injuries, police sometimes explain these injuries in a way that casts blame on the victim in order to justify the violence to supervisors or to the court, or to insulate themselves from civil liability.321 Police are aware that they enjoy higher credibility than civilians in many instances—especially when compared to a criminal defendant.322 Sometimes police may write in a

311. See id. 312. See id. 313. See, e.g., infra notes 314–20 and accompanying text. 314. See Carol Cole-Frowe & Richard Fausset, Jarring Image of Police’s Use of Force at Texas Pool Party, N.Y. TIMES (June 8, 2015), http://www.nytimes.com/2015/06/09/us/mckinney-tex-pool- party-dispute-leads-to-police-officer-suspension.html. 315. See John Eligon, Ex-Officer Convicted of Lying About Confrontation with Cyclist, N.Y. TIMES (Apr. 29, 2010), http://www.nytimes.com/2010/04/30/nyregion/30pogan.html. 316. See id. 317. The Viral World, NYC Cop Slams a Cyclist, YOUTUBE (Apr. 19, 2010), https://www. .com/watch?v=EUaok48ZYDw. 318. See Eligon, supra note 315. 319. See NYC Cop Slams Cyclist, supra note 317. 320. See New York Police Officer Escapes Prison for Pushing Cyclist off Bike, TELEGRAPH (July 15 2010, 11:10 AM), http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7891847/New- York-police-officer-escapes-prison-for-pushing-cyclist-off-bike.html. 321. See id; Dorfman, supra note 11, at 476; Stanley Z. Fisher, “Just the Facts, Ma’am”: Lying and the Omission of Exculpatory Evidence in Police Reports, 28 NEW ENG. L. REV. 1, 15 (1993). 322. See Dorfman, supra note 11, at 465 (suggesting that police lie because “judges allow them to get away with it”).

281 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW report that the suspect fell after fleeing from police or, in other instances, depending on the injuries, police will allege that the citizen assaulted the officer first and the resulting injuries on the civilian were caused in self- defense or in an effort to subdue the person.323 To make the story more convincing, police may then charge the citizen with assault on a police officer.324 Assault on a police officer and resisting arrest are often “cover charges” that hide police violence.325 Evidence that these charges are merely cover charges to hide police brutality comes from the Superior Court of the District of Columbia.326 An examination of 2,000 arrests for assault-on-a-police-officer charges in the District of Columbia found that one in four arrestees “required medical attention after their arrest.”327 Medical attention suggests something more than a fat lip or a punch to the back.328 This was a higher proportion than the number of officers who reported any injury at all, which was one in five.329 Curiously, two-thirds of those charged with assault on a police officer had no other charges, which raises the question as to why the officers were interacting with these citizens to begin with.330 Prosecutors in the District of Columbia may also distrust the accusations of the officers, because they have declined to prosecute assault-on-a-police-officer cases more than 40 percent of the time.331 Police brutality is a serious concern that has persisted largely undeterred for decades.332 Only after protests in Ferguson and Staten Island—after those jurisdictions failed to prosecute—did we see prosecutions go forward

323. See Dorfman, supra note 11, at 476. 324. See Fisher, supra note 321, at 15. 325. Dorfman, supra note 11, at 476. 326. Christina Davidson & Patrick Madden, In DC, Wiggling While Handcuffed Counts as Assaulting an Officer, REVEAL NEWS (May 9, 2015), https://www.revealnews.org/article/dcs- assaulting-an-officer-charge-could-hide-police-abuse-critics-say/. 327. Id. 328. See Gonzalez v. Lusardi, 930 F. Supp. 2d 840, 855 (E.D. Ky. 2013) (holding that a “black, swollen eye” was not the type of injury that “a layperson would readily discern as requiring prompt medical attention”); Ford v. Davis, 878 F. Supp. 1124, 1130 (N.D. Il. 1995) (holding that a swollen face, black eyes, bruised ribs, and a bruised back were not sufficiently serious for a reasonable officer to discern a need for immediate medical attention). 329. See Davidson, supra note 326. 330. See id. 331. See id. 332. See Bandes, supra note 293, at 1280 (suggesting that treating police brutality cases as a series of isolated incidents has masked the problem of systematic police brutality and enabled the problem to persist unimpeded).

282 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW in South Carolina, Baltimore, and Cincinnati.333 There should be no question that officers who assault the citizens they are sworn to protect have issues with credibility.334 The assault-on-police-officer cover charges are proof of that.335 There is a clear connection between unauthorized police violence and credibility.336 Subsequent falsehoods are all but required to cover up the brutality.337

D. Hiding Evidence of Innocence The United States Supreme Court has long said it is unconstitutional to withhold “material evidence favorable to an accused upon request.”338 This requirement includes not just evidence of , but information that might discredit a witness.339 Unfortunately, hiding evidence of innocence takes place over and over again.340 The has found the suppression of exculpatory evidence to be a common cause of wrongful convictions in the DNA exonerations that it has documented.341 The University of Michigan Law School’s National Registry of Exonerations lists “official misconduct” as the second most common contributing factor to convictions of innocent people, finding that it is a contributing factor in over half of all cases that have ultimately resulted in .342 While the suppression of evidence of innocence is often the result of ambitious prosecutors’ actions, police are guilty of this unconscionable act

333. The Ferguson and Staten Island protests occurred in November and December 2014, respectively. See McDonald, supra note 281; Southall, supra note 281. Charges were filed against the officers involved in the South Carolina, Baltimore, and Cincinnati incidents in April through July of 2015. See Pérez-Peña, supra note 283; Schmidt & Apuzzo, supra note 36; Wood & Anderson, supra note 283. 334. See supra notes 321–25 and accompanying text. 335. See supra notes 326–31 and accompanying text. 336. See supra notes 323–25 and accompanying text. 337. See supra note 324 and accompanying text. 338. Brady v. Maryland, 373 U.S. 83, 87 (1963). 339. Giglio v. United States, 405 U.S. 150, 154–55 (1972). 340. See James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973–1995, 75 TEX. L. REV. 1839, 1850 (2000) (reporting that in a study examining 5,177 capital sentences reviewed, sixteen percent of post-conviction reversals involved wrongful suppression of exculpatory evidence). 341. See Government Misconduct, INNOCENCE PROJECT, http://www.innocenceproject.org/causes- wrongful-conviction/government-misconduct (last visited Oct. 14, 2016). 342. See Registry of Exonerations, supra note 34.

283 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW as well.343 Obviously, where police fabricate or plant evidence, they violate their obligations under Brady v. Maryland,344 as seen in the torture scandal in Chicago, where officers did not admit to forcing the confessions of so many arrestees.345 Unfortunately, police routinely fail to come forward with information that helps the defense because it undermines their own achievements.346 A New York man served twenty-five years in prison for murder, despite the fact that a detective had obtained evidence that showed he was in Orlando, Florida, at Walt Disney World at the time of the offense.347 The man presented witnesses at trial, but jurors discredited them because they were family members of the accused and were perceived as untrustworthy due to their bias in favor of the defendant.348 Yet all along, there existed a receipt from the Orlando Quality Inn that was never disclosed.349 The information was in the detective’s file.350 He shared it with no one.351 In 1995, in Kyles v. Whitley, the Supreme Court reversed a first-degree murder conviction in a case where the detective withheld information from prosecutors to make the case against the defendant appear stronger.352 In the opinion, the Court wrote, “no one doubts that police investigators sometimes fail to inform a prosecutor of all they know.”353 The suppression of

343. See Jones v. City of Chicago, 865 F.2d 985 (7th Cir. 1988) (affirming a finding of conspiracy where police falsified an evidentiary report that would almost certainly have required prosecutors to drop charges against the defendant); Fisher, supra note 321, at 15–17 (suggesting that police lie to remove obstacles that they perceive as unjustly impeding the prosecutor’s conviction of the defendant). 344. See Brady v. Maryland, 373 U.S. 83, 86–88 (1963); Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“[T]he individual prosecutor has a duty to learn of any foreseeable evidence known to the others acting on the government’s behalf in the case, including the police.”). 345. Carlos Sadovi & Bob Secter, Report: Cops Used Torture, CHI. TRIB. (July 20, 2006), http://articles.chicagotribune.com/2006-07-20/news/0607200264_1_burge-and-detectives-jon-burge- richard-brzeczek. 346. See Fisher, supra note 321, at 13 (suggesting that lying may be perceived as a necessary “survival tactic” that is used for self-protection as well as in “deference to the code of loyalty” that pervades law enforcement subculture). 347. Stephanie Clifford, Man Wrongfully Convicted in 1989 Brooklyn Murder Is Set Free, N.Y. TIMES (Apr. 8, 2014), http://www.nytimes.com/2014/04/09/nyregion/brooklyn-district-attorney- overturns-conviction-in-1989-murder.html?_r=0. 348. See id. 349. See id. 350. See id. 351. See id. 352. Kyles v. Whitley, 514 U.S. 419, 421–22, 429 (1995). 353. Id. at 438.

284 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW exculpatory evidence by police is somewhat commonplace.354 Legal scholars have explored it,355 the Supreme Court has written about it,356 and yet the problem persists.357 A crime lab in North Carolina withheld exculpatory evidence in a number of cases.358 As a matter of written policy, the lab withheld exculpatory information from the defense.359 This took place over sixteen years and affected at least 230 criminal cases.360 Analysts failed to report evidence that was inconsistent with the government’s theory.361 In one case, an analyst failed to inform the parties that a substance tested was not blood.362 An analyst from the lab later testified at an innocence hearing that they were told to ignore later, more sophisticated tests if they contradicted the test results from the crime scene.363 Three defendants whose cases were worked on by the lab have been executed already.364 The FBI’s microscopic hair comparison unit gave “flawed testimony” at almost every trial in which their twenty-eight experts testified.365 The

354. See, e.g., Fisher, supra note 321, at 31 (suggesting that exclusion of exculpatory evidence from police reports is commonplace because the police focus primarily on their own needs, engaging in a pattern of behavior that is “hostile to the inclusion of exculpatory evidence”). 355. See generally Michael Avery, Paying for Silence: The Liability of Police Officers Under Section 1983 for Suppressing Exculpatory Evidence, 13 TEMP. POL. & CIV. RTS. L. REV. 1 (2003) (arguing that police suppression of exculpatory evidence is a due process violation, justifying a remedy under 42 U.S.C. § 1983 for deprivations of liberty that occur before a trial has commenced, as well as in cases of wrongful conviction); Fisher, supra note 321 (examining the causes of false and misleading police reports, the impact of such reports on the criminal justice process, and remedies for police failure to report exculpatory evidence). 356. See, e.g., Kyles, 514 U.S. at 438 (acknowledging that police sometimes fail to provide exculpatory information to prosecutors). 357. See supra note 354 and accompanying text. 358. Mandy Locke et al., Scathing SBI Audit Says 230 Cases Tainted by Shoddy Investigations, RALEIGH NEWS & OBSERVER (Aug. 19, 2010, 2:00 AM), http://www.newsobserver.com/news/ special-reports/article10365422.html. 359. See id.; see also Radley Balko, How to Reform Forensics, WASH. POST (May 5, 2015), https://www.washingtonpost.com/news/the-watch/wp/2015/05/05/how-to-reform-forensics/?utm_ter m=.973e02ebf187. 360. See Locke et al., supra note 358. 361. See id. 362. See id. 363. Radley Balko, North Carolina’s Corrupted Crime Lab, REASON.COM (Aug. 23, 2010), http://reason.com/archives/2010/08/23/north-carolinas-corrupted-crim. 364. See id. 365. See Spencer S. Hsu, FBI Admits Flaws in Hair Analysis over Decades, WASH. POST (Apr. 18, 2015), https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-ne arly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html.

285 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW experts’ testimony “exceed[ed] the limits of science in about [ninety] percent” of the cases.366 In each instance, the testimony favored prosecution theory.367 This false and misleading testimony took place over three decades and has likely impacted over 2,500 cases.368 Thirty-two men were sentenced to death as a result of this testimony, fourteen of whom have been executed or died in prison.369 While it is unclear whether the experts knew the testimony was false or misleading at the time they gave it, the FBI was apparently aware that this information was used to convict the innocent years before notifying defendants.370 The exonerations occurred only after the Washington Post reported the problem.371 In addition to Massachusetts, North Carolina, and within the FBI, there have been serious scandals in , Colorado, Michigan, and Texas that have undermined the integrity of those crime labs.372 The scandals have involved everything from blood-alcohol testing to DNA results.373

IV. MOTIVATIONS The causes of police problems with credibility are varied.374 For example, a drug analyst in Massachusetts faked results in thousands of cases, because she wanted to advance her career and appear to be a good worker.375 She filed false test results and lied under oath, reportedly out of an interest in improving her “work performance.”376 Convictions were vacated and the

366. Id. 367. See id. 368. See id. 369. See id. 370. See Spencer S. Hsu, Justice Dept., FBI to Review Use of Forensic Evidence in Thousands of Cases, WASH. POST (July 10, 2012), https://www.washingtonpost.com/local/crime/justice-dept-fbi- to-review-use-of-forensic-evidence-in-thousands-of-cases/2012/07/10/gJQAT6DlbW_story.html. 371. See Spencer S. Hsu, Convicted Defendants Left Uninformed of Forensic Flaws Found by Justice Dept, WASH. POST (Apr. 16, 2012), https://www.washingtonpost.com/local/crime/convicted- defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_sto ry.html. 372. See Conor Friedersdorf, CSI Is a Lie, ATLANTIC (Apr. 20, 2015), http://www.theatlantic. com/politics/archive/2015/04/csi-is-a-lie/390897/. 373. See id. 374. See infra notes 375–78 and accompanying text. 375. See Milton J. Valencia & John R. Ellement, Annie Dookhan Pleads Guilty in Drug Lab Scandal, BOS. GLOBE (Nov. 22, 2013), https://www.bostonglobe.com/metro/2013/11/22/annie- dookhan-former-state-chemist-who-mishandled-drug-evidence-agrees-plead-guilty/7UU3hfZUof4D FJGoNUfXGO/story.html. 376. Id.

286 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW analyst at the heart of the scandal pleaded guilty and was sentenced to three to five years in prison.377 A desire to please those with whom one works is a natural inclination that has serious consequences for police working with prosecutors.378 The North Carolina scandal was directly tied to pressure from prosecutors to produce results that would get convictions.379 That pressure resulted in bogus evidence, perjury, and other lies.380 As a result of the handful of scandals, hundreds of people were convicted on false testimony or evidence, some were convicted of crimes they did not commit, and at least two people were executed.381 Radley Balko, an investigative journalist, said the following about uncovering problems in forensic science:

One major barrier to improving forensic evidence in criminal trials is . . . [that c]rime labs analysts and medical examiners [are] typically work[ing] for the government and are generally seen as part of the prosecution’s ‘team’ . . . . A scientist whose job performance is evaluated by a senior official in the district attorney[’s office] . . . may feel subtle pressure to return results that produce convictions.382 The sheer number of crime lab scandals illustrates that individuals and organizations working in law enforcement face pressure to help prosecutors get convictions.383 The pressure to deliver results undoubtedly exists with police officers and prosecutors just as much as with forensic scientists and prosecutors.384

377. See id. 378. See infra notes 379–91 and accompanying text. 379. See Friedersdorf, supra note 372. 380. See id. 381. See id. 382. Radley Balko & Roger Koppl, C.S.Oy, SLATE (Aug. 12, 2008, 12:43 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2008/08/csoy.html. 383. See Letitia James, Prosecutors and the Police: The Inherent Conflict in Our Courts, MSNBC (Sept. 16, 2016, 10:46 AM), http://www.msnbc.com/msnbc/prosecutors-police-inherent-conflict- our-courts; see also Crime Lab & Forensic Scandals, NAT’L ASS’N CRIM. DEF. LAW., https://www.nacdl.org/criminaldefense.aspx?id=28286 (last visited Oct. 15, 2016). 384. See Alexander, supra note 234. See generally Felice F. Guerrieri, Law & Order: Redefining the Relationship Between Prosecutors and Police, 25 S. ILL. U. L.J. 353, 353 (discussing misconduct of both police officers and prosecutors and suggesting society “reevaluate this partnership” between the two entities).

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This is particularly true amongst officers and prosecutors who have repeated interactions with one another on cases.385 Prosecutors simply cannot win cases without the help and cooperation of the police.386 Police are the investigative arm of the prosecutor in most cases.387 Similarly, police need to maintain a good relationship with the prosecutor’s office in order for the cases they bring to be vindicated.388 Thus, police may face pressure from the prosecutors and need to satisfy prosecutors so that the officer’s interests are pursued.389 Because of this special relationship between police and prosecutors in building cases, it is not hard to see how police would want to please prosecutors and help them win cases.390 This affiliation between police and prosecutors makes police officers very different from other witnesses.391 Most departments claim that there are no specific number of arrests required of an officer.392 However, officers in Whittier, California, sued the city after they faced retaliation for complaining about ticket and arrest quotas.393 After complaining, the officers were transferred to assignments they did not want, were forced to participate in counseling sessions, and were placed on supervisory review and a performance plan.394 In Sacramento, California Highway Patrol officers assaulted a seventy- eight-year old man during a traffic stop.395 Evidence at trial showed that the

385. See Covey, supra note 138, at 1171. 386. See Daniel Denvir, Perjury USA: Rampant Police Lying Taints Criminal Justice System Nationwide, SALON (Jan. 6, 2016, 8:57 AM), http://www.salon.com/2016/01/06/ perjury_usa_rampant_police_lying_taints_criminal_justice_system_nationwide/ (“[N]ot only do prosecutors ignore perjury [by Chicago police], they also depend on it to win prized convictions.”). 387. See id. See generally Guerrieri, supra note 384 (discussing the close relationship between police officers and prosecutors). 388. See Slobogin, supra note 267, at 1047 (recognizing the importance of a “good working relationship” between prosecutors and police officers). 389. See id. 390. See Denvir, supra note 386. 391. See id. 392. See Alexander, supra note 234 (noting that denials of the existence of arrest quotas in New York City are mandatory for police departments, because quotas are illegal under state law). 393. See Veronica Rocha, Whittier Police Officers Sue, Say They Were Forced to Meet Quotas, L.A. TIMES (Mar. 4, 2015, 4:40 PM), http://www.latimes.com/local/lanow/la-me-ln-whittier-ticket- quotas-20150304-story.html. 394. See id. 395. See Saki Knafo, How Aggressive Policing Affects Police Officers Themselves, ATLANTIC (Jul. 13, 2015), http://www.theatlantic.com/business/archive/2015/07/aggressive-policing-quotas/ 398165/.

288 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW officers involved in the incident had previously been disciplined for making too few contacts with motorists.396 One officer was told that his average of five stops a day was too few and that a goal of 100 per month should be met.397 According to one New York City officer, the NYPD has an “unwritten rule” of “20 and one”—twenty tickets and one arrest each month.398 Officers who do not meet these goals face reassignment, denial of leave, and little hope of promotion.399 Even where no actual quotas exist, police culture drives officers to make as many arrests as possible.400 The drive to meet departmental expectations could manifest in trumped-up charges.401 Police departments have financial incentives to make arrests, in addition to the other motivations they may have.402 This pressure for numbers and capital was certainly seen in Ferguson, MO, where officers saw the community they were supposed to protect as a source of revenue.403 Facing a tax revenue shortfall, the city of Ferguson looked to the police chief to generate more revenue.404 Ten percent of the city’s general fund came from fines and fees generated by the criminal justice system and approximately another twenty percent came from the court.405 This focus on generating income for the city and pay for city employees resulted in aggressive enforcement of the city’s municipal code, according to the Department of Justice report on Ferguson.406 The money at stake in civil and criminal forfeiture is significant.407

396. See id. 397. See Denny Walsh & Sam Stanton, Court Case Hinges on Claim of Illegal CHP Ticket Quotas, SACRAMENTO BEE (June 15, 2015, 6:53 PM), http://www.sacbee.com/news/local/ transportation/article24540853.html. 398. Joel Rose, Despite Laws and Lawsuits, Quota-Based Policing Lingers, NPR (Apr. 4, 2015, 4:47 AM), http://www.npr.org/2015/04/04/395061810/despite-laws-and-lawsuits-quota-based-polic ing-lingers. 399. See Knafo, supra note 395. 400. See Rose, supra note 398. 401. See supra Section III.A. 402. See infra notes 403–15 and accompanying text. 403. See U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 9–15 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/ attachments/2015/03/04/ferguson_police_department_report.pdf. 404. See id. 405. See id. 406. See id. 407. See infra notes 408–15 and accompanying text.

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Criminal forfeiture takes place after a criminal conviction is obtained.408 Civil forfeiture allows police to seize money from an individual and can take place without a criminal conviction.409 In 2001, the Department of Justice reported that $400 million had been recovered in civil forfeiture funds.410 Much of that money goes to the department that recovered the funds.411 In fact, some departments rely on those monies.412 Given that the police simply need to accuse a person of a crime to recover their money and use it for departmental purposes, police may be motivated to falsely accuse a person of a crime.413 Professional accolades may follow for officers who are able to bring resources that benefit the unit.414 Generating this revenue and the career advantages that may follow further distinguish police witnesses from other witnesses.415 The war on drugs is an additional reason that officers face pressure.416 Departments compete for grant money for drug arrests.417 Institutional issues within a particular police department create both an incentive for officers to act outside the law and for supervisors to overlook the transgressions.418 In discussing the Texas Sheetrock scandal, one observer wrote: “[C]onsider the slack supervision of these undercover officers, their push for numbers, their willingness to cut corners . . . . What happened was inevitable.”419 Officers also have an interest in the outcome of the case in much of their

408. See Marian R. Williams, Civil Asset Forfeiture: Where Does the Money Go?, 27 CRIM. JUST. REV. 321, 321 (2002). 409. See id. at 322. 410. See id. at 323. 411. See id. 412. See John L. Worrall, Addicted to the Drug War: The Role of Civil Asset Forfeiture as a Budgetary Necessity in Contemporary Law Enforcement, 29 J. CRIM. JUST. 171, 178 tbl.1 (2001). 413. See Williams, supra note 408, at 322. 414. See Sallah et al., supra note 23. 415. See supra notes 407–14 and accompanying text. 416. See infra notes 417–19 and accompanying text. 417. See Alexander, supra note 234; see also Karena Rahall, The Green to Blue Pipeline: Defense Contractors and the Police Industrial Complex, 36 CARDOZO L. REV. 1785, 1835 n.103 (2015) (citing RADLEY BALKO, RISE OF THE WARRIOR COP: THE MILITARIZATION OF AMERICA’S POLICE FORCES 207 (2013)) (“COPS, Byrne, and other block grants were awarded to departments based entirely on the number of drug arrests made by each department and drug arrests skyrocketed as a result.”). 418. See Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. CHI. L. REV. 35, 65 (1998); Sallah et al., supra note 23. 419. Donald, supra note 260.

290 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW undercover work.420 When a department devotes its limited resources to drug busts, prostitution stings, or other undercover assignments, results are expected.421 Similarly, search warrant cases, where police seek out a search warrant for drugs or guns, are brought because of a particular interest of law enforcement.422 In those cases, police cannot be said to be simply disinterested, neutral witnesses.423 In certain high-profile cases, or in jurisdictions where public sentiment is fairly intolerant of unsolved crime, police departments may face certain pressures to “close cases” or solve previously unsolved crimes.424 This pressure can create an incentive to manufacture evidence against individuals to get the charges to “stick.”425 Claiming to have heard a confession or an out-of-context condemning statement, recovering weapons or other evidence planted in a particular location, obscuring evidence that points to someone else, or hiding evidence of the suspect’s innocence can make a case stronger than it was previously.426 Officers who “solve” crimes, particularly serious ones, are congratulated and heralded as heroes.427 Amongst some officers, there also exists an “us against them” mentality, which causes officers to see themselves not as public servants, but as outside or above the community they police.428 In the Commonwealth of Virginia, police have asked lawmakers to allow them to withhold their identities from the public.429 The justification advanced by the police is that police are at risk from the public and that it is too dangerous for members of the community to know the names of the police officers in their community.430

420. See infra notes 421–22 and accompanying text. 421. See Donald, supra note 260. 422. See id. 423. See Alexander, supra note 234. 424. See Mike Maciag, Case Closed? How ‘Solved’ Murder Stats Are Misleading, GOVERNING (Apr. 2015), http://www.governing.com/topics/public-justice-safety/gov-murder-clearance-rates- misleading.html; Santiago O’Donnell, A Crack Squad Gets Tough Cases, WASH. POST (June 27, 1993), https://www.washingtonpost.com/archive/local/1993/06/27/a-crack-squad-gets-tough-cases /4e128ec9-ea61-4edc-a432-21f330083536/. 425. See Slobogin, supra note 267, at 1044–47. 426. See id. 427. See Alexander, supra note 234. 428. Mollen et al., supra note 226. 429. See Tom Jackman, Secret Police? Virginia Considers Bill to Withhold All Officers’ Names, WASH. POST (Feb. 24, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/02/24/ secret-police-virginia-considers-bill-to-withhold-all-officers-names/. 430. See id.

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This “us against them” mentality is further evidenced by the hundreds of thousands of dollars raised for police officer Darren Wilson after he killed an unarmed man; another example of this blue code.431 Websites and sites exist that foster this view.432 As a result of the view that the police are under assault by the community they are meant to serve, officers are prone to group polarization.433 This is an unconscious phenomenon caused by the limited viewpoints to which law enforcement is exposed.434 The officers talk about their cases largely among themselves, confirming one another’s beliefs.435 Group polarization causes police to become more extreme in their views of those they are policing.436 Adding to this phenomenon, the police also work closely with the victims, which may result in an officer becoming overly invested in the alleged victim’s account437 as opposed to other witnesses, and cause an officer to want “justice” for the victim.438 Involvement in the investigation and the investigative institution—the police department—may lead to tunnel vision and confirmation bias as well.439 As a result, police may become convinced of a subject’s guilt simply because he is the suspect and because they are only exposed to one side of the story until the trial.440 This belief in the defendant’s guilt can lead to the stretching of the truth in order to secure a conviction and ensure that a person an officer believes is guilty goes behind bars, even when there

431. See Matt Pearce, Fundraising Web Pages for Ferguson Cop Still Closed; It’s Unclear Why, L.A. TIMES (Sept. 1, 2014, 5:41 PM), http://www.latimes.com/nation/nationnow/la-na-nn-ferguson- officer-fundraisers-20140831-story.html (“‘Support Officer Darren Wilson’ and ‘Support Officer Wilson’—two separate [online fundraising] pages with similar names raised $235,750 and $197,620, respectively, for the Ferguson police officer who shot Michael Brown on Aug. 9.”). 432. See, e.g., OFFICER.COM, http://www.officer.com/ (last visited Oct. 15, 2016); UNIFORM STORIES, http://uniformstories.com/ (last visited Oct. 15, 2016). 433. See Andrew Taslitz, Trying Not to Be Like Sisyphus: Can Defense Counsel Overcome Pervasive Status Quo Bias in the Criminal Justice System?, 45 TEX. TECH. L. REV. 315, 364 (2012). 434. See id. 435. See id. (“This polarization occurs partly because of the limited number of arguments raised, the growing confidence in the original belief spurred by that limited discussion, and the peer feedback from offering ever-more-enthusiastic defenses of the original position.”). 436. See id. 437. See id. at 361. 438. See id. (showing police and prosecutors often disregard pertinent evidence when it conflicts with their preferred narrative of events); Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 292 (2006). 439. See Taslitz, supra note 433, at 316, 319. 440. See id. at 359, 361.

292 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW is evidence to the contrary.441 Tunnel vision will cause police to ignore and disregard exculpatory evidence.442 These unconscious phenomena— polarization biases, tunnel vision, and confirmation biases—are all caused by the officer’s profession as part of law enforcement and differentiate police officers from other witnesses without those biases.443 A hard-to-prove motive for police misconduct may be racial animus or unconscious bias against people of color.444 We know that police officers choose to over-police neighborhoods in black and brown communities and stop and arrest people of color at much higher rates than they do whites.445 This is even true when one accounts for crimes like marijuana possession that occur at the same rates across the races.446 Black men are twenty-one times more likely to be shot dead by police than white men.447 There seems to be little doubt that the majority of those wrongfully convicted are persons of color.448 According to the National Registry of Exonerations, African Americans are disproportionately represented in these cases compared to the population as a whole; in fact, most exoneration cases involve African-

441. See id. (“Data supporting the decision becomes overvalued, while data challenging the status quo is discounted.”). 442. See id. at 361. 443. See id. at 316, 361, 364; Findley, supra note 438. 444. See Kia Makarechi, What the Data Really Says About Police and Racial Bias, VANITY FAIR (July 14, 2016, 3:09 PM), http://www.vanityfair.com/news/2016/07/data-police-racial-bias; Taslitz, supra note 433, at 354 (“Criminal prosecutions today are overwhelmingly instituted against African- Americans and other racial minorities—usually against young men.”). 445. See New NYPD Data for 2009 Shows Significant Rise in Stop-and-Frisks: More than Half Million New Yorkers Stopped Last Year, CTR. FOR CONST. RTS. (Feb. 17, 2010), http://ccrjustice. org/newsroom/press-releases/new-nypd-data-2009-shows-significant-rise-stop-and-frisks%3A-more- half-million. A half-million people were stopped by the police in New York City—87% of them were African American or Latino (“only 1.3[%] of the year’s stops resulted in the discovery of a weapon, and only 6% resulted in arrests”), whereas only 53% of the population of New York City is African American or Latino. Id. African Americans in Los Angeles were three times as likely to be stopped as whites, and they were 127% more likely to be frisked; but African Americans who were frisked and searched (and Latinos, who were also more likely to be stopped and searched) were less likely to have weapons, drugs, or other incriminating evidence on their persons. See, e.g., IAN AYRES & JONATHAN BOROWSKY, A STUDY OF RACIALLY DISPARATE OUTCOMES IN THE LOS ANGELES POLICE DEPARTMENT 6, 25–26 (2008). 446. New ACLU Report Finds Overwhelming Racial Bias in Marijuana Arrests, ACLU (June 4, 2013), https://www.aclu.org/news/new-aclu-report-finds-overwhelming-racial-bias-marijuana- arrests. 447. See Ryan Gabrielson et al., Deadly Force, in Black and White, PROPUBLICA (Oct. 10, 2014, 11:07 AM), http://www.propublica.org/article/deadly-force-in-black-and-white. 448. See Covey, supra note 138, at 1144.

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American defendants.449 It may be that some police officers’ misconduct is driven out of racial hatred or bias.450 Unfortunately, as the above accounting of misdeeds by police and crime labs alike shows, law enforcement officers acting outside the law is not rare.451 It is not just a handful of rogue officers; it is a pervasive, nationwide problem.452 Those of us outside of law enforcement may never know what drives individual officers to act outside the law.453 Likely, many police officers may be driven by a number of pressures.454 Arrest statistics and the ambition to ascend the department’s ranks may result in a disregard for the citizens the officers are supposed to protect, and motivate officers to act illegally.455 Whether caused by racial animus, the war on drugs, or other pressures, police corruption is widespread and absolutely implicates officer credibility.

V. PUBLIC VIEW OF POLICE Perceptions of police officers are varied.456 From the depictions of the “Blue Knight” and “Officer Friendly” to much more sinister portrayals in popular media, attitudes about police officers differ.457 New realities and the proliferation of cell phone, dashboard, and body cameras have affected public perception of police in the past few decades.458

449. See Registry of Exonerations, supra note 34. 450. See Makarechi, supra note 444. 451. See Jonathan Blanks et al., National Police Misconduct Reporting Project, , http://www.policemisconduct.net/ (last visited Oct. 17, 2016). 452. See id. 453. See Alexa P. Freeman, Unscheduled Departures: The Circumvention of Just Sentencing for Police Brutality, 47 HASTINGS L. J. 677, 690 (1996) (noting that “the causes of police violence are not only individually based, but also stem from our society and culture”). 454. See id. (“At the same time, the causes of brutality, including, inter alia, police culture, job stress and racism, are social problems that cannot be eliminated merely by firing or incarcerating a few bad cops.”). 455. See Nathaniel Bronstein, Police Management and Quotas: Governance in the Compstat Era, 48 COLUM. J.L. & SOC. PROBS. 543, 550 (2015). 456. See infra notes 457–61 and accompanying text. 457. See Anthony C. Thompson, From Sound Bites to Sound Policy: Reclaiming the High Ground in Criminal Justice Policy-Making, 38 FORDHAM URB. L.J. 775, 788–89 (2011). Compare THE BLUE KNIGHT (Lorimar Productions 1973), with infra note 460. 458. See Hannah Parry, FBI Director Says Cellphone Cameras Are to Blame for Rise in Hostile Relationship Between Police and Public as Cops Are Frequently Taunted for the Sake of Getting a Viral Video, DAILY MAIL (Oct. 25, 2015), http://www.dailymail.co.uk/news/article-3288732/FBI- director-says-cellphone-cameras-blame-rise-hostile-relationship-police-public-cops-frequently-taunt

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A 2015 poll by Reuters found that thirty-one percent of Americans believe that police routinely lie.459 Movies and television shows over the last several decades show police beating suspects, planting evidence, and lying under oath.460 The idea has permeated our social sphere: websites, Twitter, and Facebook groups have become virtual meeting places for people concerned with police corruption.461 While individuals know that officers may lie, that does not always translate into individual jurors doubting individual officers in the courtroom.462 White jurors are less likely to have experienced or know those who have experienced police officer corruption and are therefore more likely to believe police officers.463 For example, as Brooklyn, New York has gentrified, jurors have in turn been more likely to convict defendants than when Brooklyn was more diverse.464 This phenomenon has been referred to

ed-sake-getting-viral-video.html; Richard Pérez-Peña & Timothy Williams, Glare of Video is Shifting Public’s View of Police, N.Y. TIMES (July 30, 2015), http://www.nytimes.com/2015/07/ 31/us/through-lens-of-video-a-transformed-view-of-police.html?_r=0; Aaron Sankin, How Police Body Cameras Change Our Perception of Right and Wrong, DAILY DOT (Sept. 1, 2014, 9:05 AM), http://www.dailydot.com/layer8/police-body-camera-perspective-bias/. 459. See Bill Schneider, One Third of Americans Believe Police Lie Routinely, REUTERS (Jan. 15, 2015, 5:30 PM), http://in.reuters.com/article/2015/01/15/usa-police-idINL1N0UU01J20150115. 460. See, e.g., BAD LIEUTENANT (Aries Films 1992); COP LAND (Miramax 1997); DO THE RIGHT THING (40 Acres & A Mule Filmworks 1989); INTERNAL AFFAIRS (Paramount Pictures 1990); LA CONFIDENTIAL (Warner Brothers 1997); NARC (Paramount Pictures 2002); SERPICO (Paramount Pictures 1973); SHADES OF BLUE (NBC television broadcast); THE DEPARTED (Warner Brothers Pictures 2006); TRAINING DAY (Warner Brothers Pictures 2001). 461. See , FACEBOOK, https://www.facebook.com/BlackLivesMatter?fref=ts (last visited Oct. 14, 2016); see also Freeman, supra note 453, at 679–80 (noting that “media commentators, academicians, and politicians across the country are discussing police brutality and other police wrongdoing”). 462. E.g., Penelope McMillan, Juries Find Police Credibility Still High, L.A. TIMES (Mar. 2, 1993), http://articles.latimes.com/1993-03-02/local/me-181_1_police-officers; Josh Saul, When Brooklyn Juries Gentrify, Defendants Lose, N.Y. POST (June 16, 2014, 4:53 AM) http://nypost.com/2014/06/16/brooklyn-gentrification-is-changing-juries-who-decide-cases/ (suggesting that those from more well-off, educated communities are more trusting of the police). 463. See Ariel Edwards-Levy, Most White People Are Really Confident Their Local Police Treat Races Equally, HUFFINGTON POST (Dec. 11, 2014, 3:23 PM), http://www.huffingtonpost.com/ 2014/12/10/white-police-poll_n_6302614.html (reporting that fifty-two percent of white Americans have “great confidence” in the police, whereas only twelve percent of black Americans do); M.S., The Ferguson Verdict: In Black and White, ECONOMIST (Nov. 25, 2014, 7:45 PM), http:// www.economist.com/blogs/democracyinamerica/2014/11/ferguson-verdict-0 (noting an instance where white jurors were more likely to trust the uncorroborated testimony of a police officer than black jurors were). 464. See Saul, supra note 462.

295 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW as the “Williamsburg Effect.”465 Because white people are less likely to have been involved in the criminal justice system, they are less inclined to see it as corrupt than those who have experienced it.466 They are more likely to have had positive interactions with police officers and, as a result, think more favorably of them.467 A 2004 analysis of juror decision-making in criminal trials found that most jurors believed police testimony.468 The study included jurors from jurisdictions in California, Arizona, New York, and the District of Columbia.469 Jury instructions at odds with the reality of police bias allow the phenomenon of giving undue weight to police officer testimony to continue.470 Jurors are instructed that an officer is just like anyone else, rather than instructed to consider the bias inherent in the officer’s position as an aide to the prosecution with an interest in the case’s outcome.471

VI. CHANGE IS NECESSARY The current jury instructions about police credibility do not reflect reality and, as a result, the government benefits unfairly and the criminal defendant is disadvantaged at trial.472 An eyewitness or bystander who does not know the parties has entirely different motivations when she testifies than might the police officer with an interest in the outcome of the case.473 For judges to instruct jurors otherwise is misleading and inaccurate. Despite the thousands of instances of police corruption, the criminal justice system churns on, and in many instances, convicts people based on police testimony alone.474 Sometimes, police officer testimony is the only

465. Id. 466. See id. (“People who can afford to live in Brooklyn now don’t have the experience of police officers throwing them against cars and searching them. A person who just moves here from Wisconsin or Wyoming, they can’t relate to [that]. It doesn’t sound credible to them.”); see also M.S., supra note 463. 467. See Saul, supra note 462. 468. See Stephen Garvey et al., Juror First Votes in Criminal Trials, 1 J. EMPIRICAL LEGAL STUD. 371, 396 (2004). 469. See id. at 375. 470. See Chin & Wells, supra note 6, at 264–73. 471. See id. 472. See generally Taslitz, supra note 433. 473. See id. 474. See Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 107 (1992) (reporting a survey of prosecutors, defense attorneys, and judges indicating a belief that, on average, perjury occurs twenty

296 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW evidence against a person facing substantial prison time.475 In undercover narcotics cases or other stings, there is no other witness to the alleged offense.476 While drug possession, drug dealing, and prostitution charges are non-violent offenses, the sentences are not trivial.477 In some jurisdictions, these crimes are felonies, and many offenses carry mandatory minimum sentences.478 In many instances, the sentences can be for life.479 A conviction carries a host of other collateral consequences as well.480 With respect to other types of offenses, police officers may be the only witnesses to an alleged confession or evidence seized as a result of a search warrant.481 Because of the hundreds of wrongful convictions that have been overturned in the United States, police corruption is a significant factor in a number of those cases.482 The cost of an innocent person being framed for a crime he did not commit cannot be measured.483 To the individual, there is the loss of liberty, percent of the time, with defense attorneys estimating that it occurs fifty-three percent of the time in connection with Fourth Amendment issues). 475. See Wekili & Leus, supra note 14, at 189 (noting that police officers receive expert witness training and are often the only witness); Manson v. Brathwaite, 432 U.S. 98, 114–17 (holding an undercover police officer’s suggestive and unnecessary identification procedure of an alleged drug dealer was sufficient, so long as the overall identification was reliable). 476. See People v. Cona, 399 N.E.2d 1167, 1169–70 (affirming the reversal of two convictions based solely on an undercover police officer’s uncorroborated testimony); Joseph Goldstein, Undercover Officers Ask Addicts to Buy Drugs, Snaring Them but Not the Dealers, N.Y. TIMES (Apr. 4, 2016), http://www.nytimes.com/2016/04/05/nyregion/undercover-officers-ask-addicts-to- buy-drugs-snaring-them-but-not-dealers.html. 477. See infra notes 478–80 and accompanying text. 478. See Ind. Code Ann. § 35-45-4-2 (West 2015) (“[Prostitution] is a Level 6 felony if the person has two (2) prior [prostitution] convictions.”); People v. Thompson, 633 N.E.2d 1074, 1075 (N.Y. 1994) (finding a fifteen-year mandatory minimum for class A-1 felony sale of cocaine was not “cruel and unusual punishment”). See also Quick Facts: Drug Offenders, FAMILIES AGAINST MANDATORY MINIMUMS, http://famm.org/the-facts-with-sources/#3 (last visited Oct. 16, 2016) (“Each year, about 60% of all federal drug offenders are subject to a mandatory minimum sentence.”). 479. See A Living Death: Life Without Parole for Non-Violent Offenders, ACLU (Nov. 2013), https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf#page=4. 480. See Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789, 1790 (2012); Margaret Colgate Love, The Collateral Consequences of Padilla v. Kentucky: Is Forgiveness Now Constitutionally Required?, 160 U. PA. L. REV. PENNUMBRA 113, 117 (2011); Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 635–36 (2006). 481. See Covey, supra note 138, at 1185. 482. See id. 483. See Janet Roberts & Elizabeth Stanton, A Long Road Back After Exoneration, and Justice Is

297 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW home, career, and relationships with friends and family.484 To the family of those convicted of a crime, there is the loss of a partner, parent, breadwinner, or caretaker.485 The community of which that person was a part loses, too: the community loses a neighbor and a taxpayer, and may have to take on responsibilities that would have fallen to the individual, such as caring for any children, paying public benefits to the remaining family members, or providing therapy for the family.486 The children left behind are more likely to commit crimes, suffer from depression, and live in poverty.487 When the person who was falsely convicted emerges from prison, he will have fewer job prospects, may become homeless, and will be at a higher risk of committing a crime.488 In cases where police credibility is central, an instruction to jurors that the testimony of an officer is to be treated just like that of any other witness contradicts reality. The officer’s testimony, in many instances, is not the same: often, the officer has an interest bias.489 When a defendant testifies, the jurors are instructed that he has an interest in the outcome of the case.490 When a witness with a plea bargain testifies, the court tells the jurors that the witness’s testimony should be received “with caution.”491 When courts give these instructions, they are recognizing the interests at play for the witnesses.492 Not giving those instructions about police officer testimony when requested by the defense is unfair and contrary to reality.493 This failure to take action on police credibility further suggests a bias within the justice system that is hard to

Slow to Make Amends, N.Y. TIMES (Nov. 25, 2007), http://www.nytimes.com/2007/11/25/ us/25dna.html; Leslie Scott, “It Never Ends”: The Psychological Impact of Wrongful Conviction, 5 AM. U. CRIM. L. BRIEF 10, 10 (2010). 484. See Scott, supra note 483, at 15. 485. See id. at 12; Adrian T. Grounds, Understanding the Effects of Wrongful Imprisonment, 32 CRIME & JUST. 1, 26–27 (2005). 486. See Scott, supra note 483, at 10. 487. See Anita Bernstein, The Feminist Jurisprudence of Judge Jack B. Weinstein, 64 DEPAUL L. REV. 341, 360 (2015); Nekima Levy-Pounds, Can These Bones Live? A Look at the Impacts of the War on Drugs on Poor African-American Children and Families, 7 HASTINGS RACE & POVERTY L. J. 353, 355 (2010). 488. See Heather Weigand, Rebuilding A Life: The Wrongfully Convicted and Exonerated, 18 B.U. PUB. INT. L.J. 427 (2009); see also Roberts & Stanton, supra note 483. 489. See generally Taslitz, supra note 433. 490. See supra Section II.B. 491. See supra Section II.C. 492. See supra Sections II.B–C. 493. See supra Section II.C.

298 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW justify and only compounds the issue.494

VII. INVOLVEMENT OF OTHER PLAYERS Courts and prosecutors likely have difficulty admitting that police misconduct is a significant problem for a number of reasons.495 First, and perhaps most understandably, acknowledging the reality of police dishonesty, evidence-planting, and violence undermines public confidence in our system of justice.496 That prosecutors and trial judges allow perjury by police officers calls their own integrity into question.497 Police vice is hard to prove, and exposing it may come at a big political price for any one individual.498 In addition, prosecutors rely on police both to make their cases and for investigation.499 As a result, prosecutors have not taken on police corruption and deceit in an organized or hard-hitting way.500 A more troubling reason that this police officer corruption goes unchecked by prosecutors is that prosecutors benefit from police dishonesty.501 The planting of evidence, extracting confessions by violence, and lying about observations are all phenomena that increase convictions for individual prosecutors.502 Prosecutors who win convictions gain personal reward by getting promoted in their offices.503 Innocent people plead guilty when confronted with police officer lies, and those who go to trial must face jurors inclined to believe police officers.504 This means convictions for

494. See supra Part III. 495. See infra notes 496–519 and accompanying text. 496. See Covey, supra note 138, at 1185. 497. Curt Guyette, Circle of Lies, DETROIT METRO TIMES (Apr. 20, 2011), http://www.metrotimes.com/detroit/circle-of-lies/Content?oid=2147816. 498. See Chin & Wells, supra note 6, at 237. 499. See id. at 263. 500. See id. at 262. 501. See infra notes 502–08 and accompanying text. 502. See supra Part III; Carrie Johnson, Prosecutor Says a Desire to Win Led to Misconduct in Sen. Steven’s Case, NPR (Mar. 28, 2012, 4:15 PM), http://www.npr.org/sections/thetwo- way/2012/03/28/149557117/prosecutor-says-a-desire-to-win-led-to-misconduct-in-sen-stevens-case. 503. See Christoph Engel & Alicja Reuben, The People’s Hired Guns? Experimentally Testing the Motivating Force of a Legal Frame, 43 INT’L REV. L. & ECON. 67, 67 (2015); see also Ken Armstrong & Maurice Possley, Break Rules, Be Promoted, CHI. TRIB. (Jan. 14, 1999), http://www.chicagotribune.com/news/watchdog/chi-020103trial5-story.html; James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2125 n.232 (2000). 504. Covey, supra note 138, at 1133; see also Part III (discussing the Rampart scandal and Tulia case as examples of innocents pleading guilty in the face of police lies).

299 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW individual prosecutors who may pride themselves on their win–loss ratio.505 As an office, prosecutors benefit as well.506 Prosecutors’ offices win when they can claim high conviction rates.507 Public pressure from the community to stop crime can translate into significant funding for their office.508 Prosecutors’ inaction to curb police misconduct is hardly a surprise in light of the benefits to them.509 Some legal experts believe that judges turn a blind-eye to the lies that are told under oath by police.510 Police officer testimony is a part of almost every criminal trial, so to admit that the officers are biased or dishonest would expose a serious flaw in the criminal justice system.511 For trial judges to expose issues with police credibility would further tarnish the system over which these judges preside in the eyes of the public.512 In addition, because judges preside over many trials, one judge may see the same police officers appear as witnesses over and over again.513 This is particularly true of undercover officers who are often the only witness to an alleged crime.514 Judges are aware that expressing concerns about a particular officer’s reliability or credibility may have ramifications far beyond a single trial.515 It may be difficult for a judge to take on any beliefs

505. See supra notes 503–04 and accompanying text. 506. See infra notes 507–08 and accompanying text. 507. See M. ELAINE NUGENT-BORAKOVE & LISA M. BUDZILOWICZ, NAT’L DIST. ATTORNEY’S ASS’N, DO LOWER CONVICTION RATES MEAN PROSECUTORS’ OFFICES ARE PERFORMING POORLY? 1–3 (2007), http://www.ndaa.org/pdf/do_lower_conviction_rates_07.pdf. 508. See Matthew Mickle Werdegar, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 STAN. L. REV. 409, 445 n.5 (1999); Jim McGee, War on Crime Expands U.S. Prosecutors’ Powers, WASH. POST (Jan. 10, 1993), https://www.washingtonpost.com/archive/politics/1993/01/10/war-on-crime-expands-us- prosecutors-powers/867c0d8e-dc55-4918-9c8a-b3bb7ef7f7a4/. 509. See supra notes 502–08 and accompanying text. 510. See Alan M. Dershowitz, Controlling the Cops: Accomplices to Perjury, N.Y. TIMES (May 2, 1994), http://www.nytimes.com/1994/05/02/opinion/controlling-the-cops-accomplices-to-perjury. html; see also Dorfman, supra note 11. 511. See supra Part III; see also Denvir, supra note 391. 512. See Bruce L. Benson, An Institutional Explanation for Corruption of Criminal Justice Officials, 8 CATO J. 139, 156 (1988). 513. See generally Freeman et al., Ethical Considerations for Judges and Attorneys in Drug Court, NAT’L DRUG CT. INST. 5–9 (May 2001), http://www.ndci.org/sites/default/files/ nadcp/ethicalconsiderations.pdf (noting that judges may be influenced by factors other than the case’s merits when continuing personal engagement with participants is involved). 514. See supra note 475 and accompanying text. 515. See Dershowitz, supra note 510 (noting that police perjury is an issue in at least some if not most cases, but judges continue to turn a blind eye to perjury).

300 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW she may have about the officer’s credibility without undermining the integrity of other cases before that particular judge or past convictions over which she has presided.516 Judges may also lack proof of a particular officer’s mendacity.517 Appellate judges do little on the issue of police credibility because of the deferential standard of review on appeal.518 Because of this standard of review, appellate courts must accept trial judges’ opinions of the believability of witnesses in coming to their decisions.519 The fact that judges and prosecutors do little on the issue of police corruption is particularly troubling, because they are the two groups of actors in the best position to deal with the problem.520 Prosecutors have the ability to reject cases brought to them by untrustworthy officers or under concerning circumstances.521 They also have the power to prosecute police who lie, fabricate evidence, and abuse civilians.522 Aggressive investigation into police misconduct when it presents itself would likely have a deterrent effect on officer corruption.523 Police officers would want to avoid disgrace and incarceration if prosecutors took corruption seriously.524 Judges, as gatekeepers for the introduction of evidence, have the ability to exclude evidence on Fourth and Fifth Amendment grounds.525 They also have the ability to dismiss an indictment or take other action when evidence of innocence is suppressed.526 While this may not have the same deterrent

516. See Dorfman, supra note 11, at 465 (explaining reasons why judges may allow police perjury, including being “politically hamstrung”). 517. See Melanie D. Wilson, Improbable Cause: A Case for Judging Police by a More Majestic Standard, 15 BERKELEY J. CRIM. L. 259, 294 (2010). 518. See United States v. Jordan, 813 F.3d 442, 446 (1st Cir. 2016); Caban v. United States, 281 F.3d 778, 784 (8th Cir. 2002); United States v. Kelly, 14 F.3d 1169, 1177 (7th Cir. 1994); State v. Stanley, 622 S.E.2d 680, 684 (N.C. Ct. App. 2005). 519. See Amadeo v. Zant, 486 U.S. 214, 223 (1988). 520. See Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. DAVIS L. REV. 1591, 1594–96 (2014); Steven Zeidman, Policing the Police: The Role of the Courts and the Prosecution, 32 FORDHAM URB. L.J. 315, 323–33, 349 (2005). 521. See Gold, supra note 520, at 1595. 522. See, e.g., Sabrina S. Worthy, Student Scholarship, Failure to Prosecute Police Misconduct Breeds a Systematic Tolerance of Police, SETON HALL U., 25–26 (2016), http://scholarship. shu.edu/cgi/viewcontent.cgi?article=1847&context=student_scholarship. 523. Worthy, supra note 522, at 25–26. 524. See Barry, supra note 524, at 39–40; Worthy, supra note 522, at 25–26. 525. See Gold, supra note 520, at 1594. 526. See United States v. Chapman, 524 F.3d 1073, 1086 (9th Cir. 2008); Illinois v. Forsythe, 406 N.E.2d 58, 60 (Ill. Ct. App. 1980) (acknowledging that a “trial judge had [the] authority to dismiss

301 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW effect as aggressive prosecutions might, citizens would at least have more faith in the integrity of the criminal justice system, and some innocent people would spend less time in jail.

VIII. SOLUTIONS AND CONCLUSIONS A number of affirmative steps have been taken in many jurisdictions that reflect a distrust of police.527 Because of the significant number of wrongful convictions that have involved misidentifications by eyewitnesses, the use of detectives who are unaware of the identity of the suspect during photo identifications and lineups has become a way to avoid misidentification and is known as a best practice.528 The reason this is considered a “best practice” is because it avoids purposeful or unconscious leading by police to the suspect that the police believe committed the offense rather than the true perpetrator.529 Requiring the videotaping of confessions reflected the fear that police were fabricating suspects’ confessions or beating confessions out of them.530 The documenting of police behavior has proliferated.531 The use of dashboard cameras and body cameras for officers on foot patrol has increased.532 All of these steps show a distrust of police the indictment as a sanction for the discovery violation”); Massachusetts v. Douzanis, 425 N.E.2d 326, 329 (Mass. 1981); see also FED. R. CRIM. P. 16(d)(2)(A)–(D); D.C. SUPER. CT. R. CRIM. P. 16(d)(2); N.Y. CRIM. PROC. LAW § 240.70 (McKinney 2016). 527. See, e.g., Amy Klobuchar et al., Improving Eyewitness Identifications: Hennepin County’s Blind Sequential Lineup Pilot Project, 4 CARDOZO PUB. L. POL’Y & ETHICS J. 381, 382 (2006) (discussing new methods leading to more reliable eyewitness identification to avoid wrongful convictions). 528. See Klobuchar et al., supra note 527, at 389; Mark R. Phillips et al., Double-Blind- Photoarray Administration as a Safeguard Against Investigator Bias, 84 J. APPLIED PSYCHOL. 940, 941 (1999); Sandra Guerra Thompson, Judicial Gatekeeping of Police-Generated Witness Testimony, 102 J. CRIM. L. & CRIMINOLOGY 329, 357 (2012); Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 LAW AND HUMAN BEHAVIOR 603, 627–42 (1998). 529. Klobuchar, supra note 527, at 389; see also Phillips et al., supra note 528, at 941; Thompson, supra note 528, at 357; Wells et al., supra note 528, at 627–29. 530. See Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations Is the Solution to Illinois’ Problem of False Confessions, 32 LOY. U. CHI. L.J. 337, 341–42 (2001); see also Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 687–88 (1996); Carrie Johnson, New DOJ Policy Urges Agents to Videotape Interrogations, NPR (May 21, 2014, 5:04 PM), http://www.npr.org/sections/thetwo-way/2014/ 05/21/314616254/new-doj-policy-calls-for-videotaping-the-questioning-of-suspects. 531. See Kimberly McCullough, Changing the Culture of Unconstitutional Interference, 18 LEWIS & CLARK L. REV. 543, 555 (2014); Parry, supra note 458. 532. See Aleaziz, supra note 220; see also Davey, supra note 218.

302 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW that has not yet been embodied in jury instructions. Changes in criminal jury instructions would be another tool in the arsenal to level the gross power imbalance between police and defendants in the criminal system. This step should result in fairer verdicts.533 An instruction pointing out that police officers often have an interest in the outcome of a particular case may be one way to limit the damages caused by police officer corruption. The instructions would educate jurors about the fact that officers are not simply impartial fact-gatherers.534 At a minimum, the instruction would allow jurors to employ in their deliberations what they may already know. Fairer instructions that better reflect the biases at play for police officers could also mean that defense attorneys would be more comfortable taking on police credibility at trial.535 Eventually, the instructions might encourage more innocent people to take their chances at trial rather than plead guilty to avoid the severe penalties at stake. One significant outcome could be fewer wrongful convictions.536 Acknowledging the realities of the criminal justice system is a more honest approach than the approach that has persisted for decades.537 A more candid criminal justice system—one with fewer wrongful convictions—can only benefit the country. The costs of wrongful convictions are huge to the individual as well as to society.538 Public opinion about the criminal justice system may also improve. Jury instructions on police credibility would not be appropriate in all cases. A significant number of cases may not involve police credibility: domestic violence or other assault cases where the parties know each other, cold-hit DNA, robberies, burglaries, even murder cases may be situations where police credibility may not be an issue at all. In some instances, defense attorneys may not request police credibility instructions for strategic reasons. However, in cities plagued by police scandals like New York, Dallas, Los Angeles, and Chicago, police credibility instructions might be

533. See supra Part VI. 534. See supra Part VI. 535. See supra Part II. In the same way that jurors are instructed that the defendant or other parties may have an interest in the case’s outcome, defense attorneys can argue in opening and/or closing arguments that jurors will hear from the judge that police officers often have an interest in the outcome of a criminal case. See generally supra Part II. 536. See supra Part VI. 537. See supra Part VII. 538. See supra notes 483–88 and accompanying text.

303 [Vol. 44: 245, 2017] Bias in Blue PEPPERDINE LAW REVIEW appropriate much more often.539 On the occasions where the defense implicates police credibility, trial judges should not ignore the realities of police bias but instead should give more appropriate instructions that recognize the uniqueness of the police officer’s role in a criminal trial.540 Nor should prosecutors object to them every time. Prosecutors have done very little to stem police misconduct; for prosecutors to then assert that credibility issues do not exist and argue against jury instructions is contrary to their ethical obligation to seek justice.541 Arguing against the instructions also exacerbates the problem of police corruption, because officers have no incentive to refrain from lying or otherwise misbehaving when criminal penalties are at stake.542 Police credibility has been an issue in the United States for decades.543 Yet, that reality has not been reflected in the instructions given to jurors about how they should evaluate the evidence they have heard.544 The courtrooms where a person’s life and liberty are on the line should recognize the truths about American law enforcement. To continue to turn a blind eye to the thousands of instances of misconduct hurts everyone involved.545 Courtrooms should be a place where justice can be achieved, not where players sweep aside reality and let criminal defendants bear the burden of a system too broken to admit that it is.

539. See supra Part III. 540. See supra Part II. 541. See Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1409 n.108 (2000); Kimberly Kindy & Kimbriell Kelly, Thousands Dead, Few Prosecuted, WASH. POST (Apr. 11, 2015), http://www. washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-few-prosecuted/; see also MODEL RULES OF PROF’L CONDUCT r. 3.8 cmt.1 (AM. BAR ASS’N 2013); Berger v. United States, 295 U.S. 78, 88 (1935). 542. See supra Part III; see also Dorfman, supra note 11, at 456–57. 543. See supra notes 222–28 and accompanying text (discussing police credibility issues that have arisen since the 1950s). 544. See supra Parts I, VI. 545. See supra Part VII.

304 Public defenders can be biased, too, and it hurts their non-white clients - The Washington Post 6/8/16, 11:19 AM

PostEverything Public defenders can be biased, too, and it hurts their non-white clients Advertisement

The San Francisco public defender on how he fights unconscious bias.

By Jeff Adachi June 7 Jeff Adachi serves as the elected Public Defender of San Francisco.

A couple of months ago, a San Francisco public defender was assigned a case. The client was a 19-year-old African American arrested for carrying a gun. He faced a stiff sentence for weapon possession.

He explained to his attorney that he began carrying a gun after his best friend was shot dead by rival gang members at war with a gang in his neighborhood. He was not part of that group, but he feared he would be killed in the violence that rocked his streets.

The client’s lawyer, who had grown up in an upper-class neighborhood and graduated from a good school, had a hard time understanding this explanation. Why, she wondered, didn’t her client just call the police?

This lack of understanding put the lawyer and client in a difficult position. A lawyer who doubts her client will struggle to convince a jury. She might also worry that jurors couldn’t possibly empathize, and push him to plead guilty and accept a plea.

https://www.washingtonpost.com/posteverything/wp/2016/06/07/public-defenders-can-be-biased-too-and-it-hurts-their-non-white-clients/ Page 1 of 4 Public defenders can be biased, too, and it hurts their non-white clients - The Washington Post 6/8/16, 11:19 AM

* * *

Decades of research has shown that we all possess biases that we are not consciously aware of, which affect our understanding, actions and decisions. Dozens of studies have shown that police officers, judges, prosecutors and defense attorneys suffer from implicit biases, and that it affects the outcomes in criminal cases. It is likely one of the reasons non-white Americans are disproportionately arrested and sentenced. Lawyers may decide to argue a point, such as whether the defendant’s actions were reasonable, based on how they perceive a client.

Given that most public defenders handle a high volume of cases and clients — sometimes in the hundreds — their decision-making process is vulnerable to unconscious bias. A public defender may try harder for a client that he or she perceives as more educated or likely to be successful because of their race.

I didn’t always understand this. I’m the elected public defender of San Francisco, and I was first approached about training my staff on implicit bias four years ago. I was skeptical. My staff works with ethnic minorities every day, I thought. Many had come to this line of work because of concern over racial disparities. How could we be biased against those who we represent?

But I quickly learned that public defenders are not immune from stereotypes and perceptions that influence our decision-making process.

To start, I took Harvard’s Implicit Association test. In it, images of white and black faces flash on the screen as the user uses a keyboard to quickly make certain choices: good, bad, positive or negative. The research shows that humans think and process information by making automatic associations between concepts. The test results showed that I, like most people who have taken the test, suffered from unconscious bias.

I also began reading studies on how defense lawyers were affected by implicit bias. One study showed that defense attorneys in death penalty cases paired pictures of white-skinned faces with stereotypically good words; they paired “bad” words with black faces. The study also found that 88 percent of U.S. attorneys are Caucasian and the vast majority of attorneys have “automatic reactions that make associating white

https://www.washingtonpost.com/posteverything/wp/2016/06/07/public-defenders-can-be-biased-too-and-it-hurts-their-non-white-clients/ Page 2 of 4 Public defenders can be biased, too, and it hurts their non-white clients - The Washington Post 6/8/16, 11:19 AM with good easier than associating white with bad.” This made me realize that black clients had an extra obstacle to obtain justice because their lawyers’ biases could affect how hard the lawyer pushed for them.

This is also problematic because of the prevalence of plea bargaining. In most jurisdictions, over 95 percent of the cases that are not dismissed or diverted result in a plea bargain. Past studies have suggested that attorneys may consider race in assessing the client’s chances of conviction and may therefore be willing to recommend higher sentences to account for a biased system.

Two years ago, we partnered with social science researchers from the Quattrone Center for the Fair Administration of Justice Plea to measure racial disparities in our plea bargains, and to determine whether the race of a client — or an attorney — affects outcomes. While the final study has not been released, the preliminary data shows a clear correlation between race and outcomes. Black defendants were more likely to be convicted of more charges and received more severe sentences. Armed with this information, we can now begin comparing outcomes and determining whether there is a rational explanation as to why they are different.

All of this research convinced me that I need to train my staff on how we form biases and how they potentially affect our work. The bias training we now undergo twice- yearly explores the subtle assumptions we make based on race. It forced us to examine who we choose to associate with, and who we choose not to, and how our fears and misperceptions about people affect the way we interact with them and ultimately represent them in court. And it required us to confront our own racism.

We also instituted some practical safeguards: Public defenders are encouraged to seek feedback from colleagues about potential biases and use checklist tools that ask questions such as “how would I handle this case different if my client was another race or had a different social background?” And we combat our own biases by getting to know our clients and their families. It is then they become individuals and not just criminal defendants.

The good news is that the research shows that as people become aware of their unconscious biases, and are reminded of them regularly, they can correct for them.

https://www.washingtonpost.com/posteverything/wp/2016/06/07/public-defenders-can-be-biased-too-and-it-hurts-their-non-white-clients/ Page 3 of 4 Public defenders can be biased, too, and it hurts their non-white clients - The Washington Post 6/8/16, 11:19 AM

That was the case with the lawyer whose client was caught with a gun. She discussed and explored her own biases in a trial practice group. She also worked with her client’s family and brother, who was a soldier who had just served a tour in Iraq, which helped humanize his brother.

Thanks to these efforts, my lawyer was better able to defend her client. She won an acquittal in his case.

Jeff Adachi serves as the elected Public Defender of San Francisco.

https://www.washingtonpost.com/posteverything/wp/2016/06/07/public-defenders-can-be-biased-too-and-it-hurts-their-non-white-clients/ Page 4 of 4 This opinion was filed for record at. 8~00 ~ onJ IA~ ~) 1ill/ &ir-ci.&~ SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITY OF SEATTLE, ) ) Respondent, ) No. 93408-8 ) v. ) En Banc ) MATTHEW ALEX ERICKSON, ) ) Filed ------JUL 0 6 2017 Petitioner. ) ~~~~~~~~~~)

OWENS, J. - In 2013, Matthew Erickson, a black man, was charged in Seattle

Municipal Court with unlawful use of a weapon and resisting arrest. After voir dire, the

city of Seattle (City) exercised a peremptory challenge against the only black juror on

the jury panel. After the jury was empaneled and excused from the courthouse with the

rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was

racially motivated. The court found that there was no prima facie showing of racial

and overruled Erickson's objection.

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),

guarantees a jmy selection process free from racial animus. Yet, we have noted that our City ofSeattle v. Erickson No. 93408-8

Batson protections are not robust enough to effectively combat racial discrimination

during jury selection. We have repeatedly signaled our desire to better effectuate the

equal protection guaranties espoused in Batson. However, we had not yet found the

opportunity to do so. Now, by explicitly asking this court to amend our Batson analysis

and squarely briefing the issue, Erickson has provided that opportunity. As a threshold matter, we find that Erickson's Batson challenge was timely. We further adopt the bright-line rule first espoused by the dissent in State v. Rhone, 168 Wn.2d 645, 652 n.5,

229 P.3d 752 (2010) (plurality opinion). We amend our Batson framework and hold that the peremptory strike of a juror who is the only member of a cognizable racial

group constitutes a prima facie showing of racial discrimination requiring a full

Batson analysis by the trial court.

FACTS AND PROCEDURAL HISTORY

In June 2013, Officer Kevin Oshikawa Clay observed Erickson near Westlake

Park in Seattle, Washington. He testified that Erickson was walking down the

sidewalk backward and with a knife drawn, followed by several other individuals.

Clay and his partner followed Erickson into the Pacific Place shopping center, drew their weapons, and ordered Erickson to drop the knife. Erickson complied, but refused to follow the officers' instructions to lay facedown on the floor. After a prolonged physical struggle throughout which Erickson refused the officers'

commands and resisted their physical efforts to restrain him, the officers subdued him

2 City ofSeattle v. Erickson No. 93408-8 and took him into custody. He was charged in Seattle Municipal Court with unlawful use of a weapon and resisting arrest.

After voir dire, each party exercised three peremptory strikes. The City used one of those strikes against juror 5, the only black juror on the panel, and Erickson made no objections at the time. 1 The six-person jury was subsequently seated, the rest of the venire excused, the jury sworn in, and the jury dismissed for the day. Erickson then objected to the striking of juror 5 pursuant to Batson, noting it was the first opportunity he had to do so without being "directly in front of the jury." 1 Verbatim

Report of Proceedings (VRP) (Oct. 21, 2014) at 180.

Erickson argued that the City violated Batson when it struck juror 5. He claimed that the striking of the only juror from a cognizable racial group made a prima facie case that the juror was struck based on race. The City rebutted that

Erickson had waived his right to a Batson challenge, claiming the objection was brought after the venire had been dismissed and the jury excused for the day, thereby making the objection untimely. It further argued that Erickson had not made a prima facie case of discrimination because Batson stands for the "proposition that there

1 The trial court noted it could not conclude with certainty that juror 5 was the only black individual in the venire. However, the trial court and the parties could specifically remember four other "people of color" who were seated on the panel as well as another in the venire; they identified none of them as African American. 2 Verbatim Report of Proceedings (Oct. 22, 2014) at 193-95, 206-07.

3 City ofSeattle v. Erickson No. 93408-8 needed to be a pattern or practice of discrimination." 2 VRP (Oct. 22, 2014) at 200-

01. It claimed the act of striking a single juror could not constitute such a pattern.

The municipal court found that Erickson had not waived the Batson challenge.

However, it also found that Erickson had not presented a prima facie case for

discrimination. Though juror 5 may have been the only black juror, there were a number of other jurors from "constitutionally cognizable groups" who remained on both the panel and venire after juror S's strike. 2 VRP (Oct. 22, 2014) at 206-07. The court and the parties specifically identified five other individuals as "people of color," but did not explicitly speculate about those individuals' racial backgrounds or

identities. Id. at 193-95, 205-07.

The court conceded that striking a single juror of a particular race could, under

certain circumstances, rise to the level of prima facie discrimination. However, the court noted that it saw no such circumstances in this case. Because the municipal

court ruled against Erickson on the first step of the Batson analysis, it terminated the analysis and allowed the trial to move forward. Erickson was convicted on both counts.

Erickson appealed the municipal court's decision to King County Superior

Court. The superior court affirmed the municipal court, finding that the circumstances

surrounding the challenge did not raise any inference that the juror was stricken because of his race. The judge did not address whether Erickson's motion was timely.

4 City ofSeattle v. Erickson No. 93408-8

Erickson then petitioned the Court of Appeals for discretionary review, which it denied. His motion to modify the commissioner's ruling was similarly denied. He finally petitioned this court for discretionary review, which was granted. City of

Seattle v. Erickson, 187 Wn.2d 1008, 386 P.3d 1098 (2017).

ISSUES

1. Did Erickson waive his right to a Batson challenge when he objected after the jury was empaneled and both the jury and venire excused?

2. Did the trial court err in finding that Erickson did not make a prima facie showing of racial discrimination when the City struck juror 5?

STANDARD OF REVIEW

On one level, this case hinges on a procedural question about the appropriate timing for a challenge to a peremptory strike under Batson. On another level, this case represents the struggle to defend our equal protection guaranties and to continue fighting against racial discrimination in the jury selection process.

Batson created a three-part test to replace the "'crippling burden of proof"' previously required when attempting to prove a racially motivated strike. State v.

Saintcalle, 178 Wn.2d 34, 43-44, 309 P.3d 326 (2013) (plurality opinion) (quoting

Batson, 476 U.S. at 92). First, the defendant must establish a prima facie case that

"gives rise to an inference of discriminatory purpose." Batson, 476 U.S. at 94.

Second, if a prima facie case is made, the burden shifts to the prosecutor to provide an

5 City ofSeattle v. Erickson No. 93408-8 adequate, race-neutral justification for the strike. Id. Finally, if a race-neutral explanation is provided, the court must weigh all relevant circumstances and decide if the strike was motived by racial animus. Johnson v. California, 545 U.S. 162, 168,

125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (quoting Purkett v. Elem, 514 U.S. 765,

767, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) (per curiam)).

Though the United States Supreme Court provided this framework, it left the states to establish rules for the "particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." Batson, 476 U.S. at 99.

These local rules can define when an objection is timely. Ford v. Georgia, 498 U.S.

411, 423, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991). A trial judge's decision under the original Batson test is entitled great deference and will be reversed only if the defendant can show it was clearly erroneous. Hernandez v. New York, 500 U.S. 352,

364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). However, this court has great discretion to amend or replace the Batson requirements if circumstances so require.

See Saintcalle, 178 Wn.2d at 51.

As a threshold matter, we first must decide whether Erickson can bring a

Batson challenge after the jury is empaneled and the rest of the venire excused. We then decide whether the municipal court erred when it found that Erickson had not established a prima facie case of racial discrimination in violation of equal protection.

WASH. CONST. art. I, § 12. We find that Erickson's objection was timely and that the

6 City ofSeattle v. Erickson No. 93408-8 municipal court erred when it failed to infer racial bias from the dismissal of the only black juror on the jury panel.

1. Erickson Did Not Waive His Right to a Batson Challenge When He Objected to the Striking ofa Juror after the Jury Was Empaneled but before . Testimony Was Heard

As noted above, the United States Supreme Court has left it to state courts and

legislatures to determine the procedure surrounding Batson challenges. Ford, 498

U.S. at 423. This court has not yet ruled on when a defendant may bring an objection under Batson. However, objections must generally be raised "at a time that will afford the [trial] court an opportunity to correct [the error]." State v. Wicke, 91 Wn.2d

638, 642, 591P.2d452 (1979) (citing State v. Fagalde, 85 Wn.2d 730, 539 P.2d 86

(1975)). In the past, this court has reviewed a Batson challenge brought after the jury was empaneled, though we declined to review the timeliness issue. Rhone, 168

Wn.2d at 652 n.5. We now choose to address it.

Several state and federal jurisdictions allow Batson challenges even after a jury has been selected and sworn in. Virginia has developed a statutory rule that allows a

challenge after the jury has been sworn "with leave of court." Lewis v.

Commonwealth, 25 Va. App. 745, 749, 492 S.E.2d 492 (1997) (citing VA. CODE ANN.

§ 8.01-352). Texas, too, has developed a rule allowing a defendant to bring a

challenge after the jury is empaneled if the claim is "so novel" or the law "so well

7 City ofSeattle v. Erickson No. 93408-8

settled" as to require it. Jones v. Martin K. Eby Constr. Co., 841 S.W.2d 426, 428

(Tex. Ct. App. 1992).

A number of federal courts also allow Batson challenges after the jury has been sworn. In United States v. Thompson, the Ninth Circuit upheld a Batson challenge as timely even though it came after the swearing-in of the jury, noting the objectionable action "might not have been apparent until the jury was selected." 827 F.2d 1254,

1257 (9th Cir. 1987). That court later clarified its ruling, indicating that Batson challenges can be proper after a jury is sworn, but "must occur as soon as possible."

Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) (citing Thompson, 827 F.2d at 1257). The Seventh Circuit similarly allows Batson challenges after the swearing of a jury ifit is the party's earliest opportunity. United States v. Williams, 819 F.3d

1026, 1029 (7th Cir. 2016). In contrast, the Eight Circuit gives deference to the trial courts in determining whether a Batson challenge brought after jury selection is

appropriate. See Reynolds v. City ofLittle Rock, 893 F.2d 1004, 1009 (8th Cir. 1990).

We have not ruled on the timeliness of Batson challenges. However, finding the above approaches persuasive, we now hold that Erickson's Batson challenge was timely. Read together, the above decisions have adopted rules requiring that a Batson

challenge be brought at the earliest reasonable time while the trial court still has the

ability to remedy the wrong. These cases recognize that judges and parties do not

have instantaneous reaction time, and so have given both trial courts and litigants

8 City ofSeattle v. Erickson No. 93408-8

some lenience to bring Batson challenges after the jury was been sworn. This is in

line with our own jurisprudence. Objections should generally be brought when the

trial court has the ability to remedy the error, and allowing some challenges after the

swearing in of the jury does not offend that ability. Wicke, 91 Wn.2d at 642.

In this case, Erickson did not bring his objection until just after the jury had

been excused for the day and the venire dismissed. He noted that this was the first

time the parties had been out of the presence of the jury. As the municipal court

acknowledged, this limited the court's remedial options, but it did not remove them

completely. Had the challenge been brought sooner and had the judge sided with

Erickson, the judge may have placed the stricken juror back on the panel or dissolved the venire and called a new jury pool. Though these options were unavailable once the jury was sworn in, the judge could still declare a mistrial to address any error on the prosecution's part. When Erickson made his challenge, no other motions had been

filed, no testimony heard, and no evidence admitted. The timing was not ideal, but the challenge was raised when the trial court still had an opportunity to correct it. We

find that even though Erickson brought his challenge after the jury was empaneled, the trial court still had adequate ability to remedy any error. Therefore, Erickson

made a timely challenge and we continue to the second issue for review.

9 City ofSeattle v. Erickson No. 93408-8

2. The Municipal Court Erred When It Found That Erickson Had Not Provided a Prima Facie Case ofRacial Discrimination in the Removal of Juror 5

As noted above, the United States Supreme Court has left it to the states to provide Batson procedures. Ford, 498 U.S. at 423. Washington trial courts have traditionally given great discretion to findings of prima facie discrimination under

Batson, and we review such traditional findings for abuse of that discretion. State v.

Hicks, 163 Wn.2d 477, 490-91, 181P.3d831 (2008). However, we also have the power to determine, under appropriate circumstances, whether the traditional Batson

analysis should be amended or replaced to ensure the promise of equal protection.

Saintcalle, 178 Wn.2d at 51.

A. This Court Has Not Foreclosed the Possibility of Adopting a Bright­ Line Rule under Batson

This court recognized a trial court's discretion in finding prima facie

discrimination in Hicks. There, the trial court found a prima facie showing of

discrimination after the sole black jury member was struck. 163 Wn.2d at 491. We

found that the trial court was "well within [its] discretion" to make such a finding,

noting that Batson affords broad leeway to trial courts when it comes to prima facie

showings. Id. at 490-91. We reaffirmed this holding in State v. Thomas, 166 Wn.2d

380, 397, 208 P.3d 1107 (2009).

We later signaled that this rule could be subject to change under particular

circumstances. In Rhone, the defendant made a Batson challenge after the State

10 City ofSeattle v. Erickson No. 93408-8

struck the last remaining African American member of the jury panel. 168 Wn.2d at

648-50. Five justices held that the trial court did not err in not finding a prima facie

case when the sole black juror was struck. Id. at 655-56. In so doing, we declined to

adopt a bright-line rule that the striking of the sole member of a particular race is a per

se prima facie showing of discrimination. Id. at 653.

However, four dissenting justices and one concurring justice suggested that a

bright-line rule would be appropriate. Id. at 661 (Alexander, J., dissenting), 658

(Madsen, C.J., concurring). The dissent reasoned that such a rule would not only lead

to greater protection from racial discrimination, but would help effectuate

Washington's elevated right to a fair jury trial. Id. at 661 (Alexander, J., dissenting).

Those justices disagreed with the lead opinion that such a rule would change "a shield

against discrimination into a sword cutting against the purpose of a peremptory

challenge." Id. at 654 (C. Johnson, J., lead opinion). Rather, they believed it would

"merely require the State to offer a race-neutral explanation for its peremptory

challenge." Id. at 662 (Alexander, J., dissenting). Then Chief Justice Madsen's

concurrence added that although applying such a rule would be inappropriate in the

case before her, it could legitimately be applied "going forward." Id.

Justice Madsen clarified this statement in State v. Meredith, 178 Wn.2d 180,

306 P.3d 942 (2013). She reasoned that because the parties were not on notice of a

bright-line rule in Rhone itself, it was inappropriate to apply such a rule under

11 City ofSeattle v. Erickson No. 93408-8

Rhone's facts. Id. at 186 (Madsen, C.J., concurring). However, she explained that

"this alternative method of establishing the prima facie case [i.e., the bright-line rule] should be available once trial courts, prosecuting attorneys, and defendants and their counsel are on notice that this rule may be followed." Id. at 186.

This court also used the majority opinion in Meredith to clarify the Rhone decision. 178 Wn.2d at 184. We stated that despite the chief justice's concurrence expressing intent to adopt a bright-line rule going forward, it did not provide a binding, five-justice (or mon;) precedent. Id. We did not foreclose the possibility of eventually adopting such a rule. Rather, "[u]ntil [at least] five justices agree to actually adopt such a bright-line rule, the previous rule remains in effect." Id.

We most recently declined to alter the Batson framework in Saintcalle. There, the lead opinion noted that although this court has power to alter or replace the Batson framework, it ought not to do so when "[n]either party has asked for a new standard or framework" and when the trial court and the Court of Appeals did not consider such an argument. Saintcalle, 178 Wn.2d at 55. In this case, however, Erickson does ask for a reworking of Batson. He requests that we alter the standard framework to adopt a bright-line rule. Though this court declined to do so in Saintcalle, Meredith, and

Rhone, the possibility of altering Batson's framework is not closed to us. Erickson's case presents the circumstances Rhone alluded to, allowing us to amend our Batson analysis.

12 City ofSeattle v. Erickson No. 93408-8

B. We Adopt the Bright-Line Rule First Articulated in the Rhone Dissent

We now follow our signal in Rhone and adopt a bright-line rule. The purpose of Batson is to ensure that jury selection proceedings are free from racial discrimination. To create a prima facie case of racial discrimination, a defendant must first demonstrate that the struck juror is a member of a "cognizable racial group."

Batson, 476 U.S. at 96. Though a pattern of striking multiple jurors may demonstrate racial animus, "' [t ]he Constitution forbids striking even a single prospective juror for a discriminatory purpose."' Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203,

170 L. Ed. 2d 175 (2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902

(9th Cir. 1994)).

Here, the trial court erred in the first step of its Batson analysis. The court noted that it could not discern a pattern of discriminatory strikes in part because other people of color remained on the jury. It found further that because there were other people of color, the jury was "diverse." With these findings, the court ruled Erickson had not provided a prima facie showing of discrimination.

The trial court improperly applied the first step of the Batson analysis. First, it is misguided to infer that leaving some members of cognizable racial groups on a jury while striking the only African American member proves the prosecutor's strike was not racially motivated. Batson is concerned with whether a juror was struck because of his or her race, not the level of diversity remaining on the jury. Saintcalle, 178

13 City ofSeattle v. Erickson No. 93408-8

Wn.2d at 42. In addition, a Batson violation can occur if even one juror is struck. We have noted that "'[a] single invidiously discriminatory governmental act is not immunized by the absence of such discrimination in the making of other comparable decisions."' Hicks, 163 Wn.2d at 491 (alteration in original) (internal quotation marks omitted) (quoting Batson, 476 U.S. at 95). Though a pattern is informative, it is not necessary.

In addition, Erickson made his prima facie showing of discrimination. He challenged the prosecutor's peremptory strike based on the fact that juror 5 was the only black juror on the panel. The municipal court should have followed the example of the trial court in Hicks, at the least finding a prima facie case out of '"an abundance of caution.'" Id. at 484. This single strike, absent other circumstances showing legitimate grounds, was enough to trigger a prima facie finding. The trial court improperly relied only on the absence of a pattern and the presence of other nonwhite jurors to come to its conclusion. We find the trial court erred in its first step of the

Batson analysis and Erickson properly made a prima facie showing of racial discrimination.

In light of these errors, we have broad discretion to alter the Batson framework to more adequately recognize and defend the goals of equal protection. Saintcalle,

178 Wn.2d at 51. In the past, this court has provided great discretion to the trial court when it comes to the finding of a prima facie case pursuant to a Batson challenge. To

14 City ofSeattle v. Erickson No. 93408-8

ensure a robust equal protection guaranty, we now limit that discretion and adopt the

bright-line Rhone rule. We hold that the trial court must recognize a prima facie case

of discriminatory purpose when the sole member of a racially cognizable group has

been struck from the jury. The trial court must then require an explanation from the

striking party and analyze, based on the explanation and the totality of the

circumstances, whether the strike was racially motivated. Batson, 476 U.S. at 94;

Saintcalle, 178 Wn.2d at 42.

This alteration does not change the basis for a Batson challenge. The evil of

racial discrimination is still the evil this rule seeks to eradicate. Rather, this alteration

provides parties and courts with a new tool, allowing them an alternate route to defend

the protections espoused by Batson. A prima facie case can always be made based on

overt racism or a pattern of impermissible strikes. Now, it can also be made when the

sole member of a racially cognizable group is removed using a peremptory strike.

This court has long discussed a change to the Batson framework. In Rhone, we

signaled our intent to change our analysis, putting both courts and parties on notice of

that change. In Meredith, we declared that once at least five justices agree, a bright-

line rule could be adopted. In Saintcalle, we lamented the inadequate state of our

Batson inquiry but declined to alter it because neither party had raised the issue.

Here, the circumstance is different. Erickson explicitly advocates for a change to the

Batson test. Both parties have briefed the issue and placed it squarely before us. We

15 City ofSeattle v. Erickson No. 93408-8

are not hampered with the same constraints that weighed us down in previous cases.

We first find that Erickson has made a prima facie case of discrimination. We further

take this opportunity to alter the Batson framework and adopt the bright-line rule

described in the Rhone dissent.

3. Remand for a New Trial Is the Appropriate Remedy

Traditionally, the remedy for this error would be to remand to the trial court for

a complete three-part analysis as the United States Supreme Court did in Batson itself.

476 U.S. at 100. But Erickson urges that if we adopt a new bright-line rule and find a

prima facie case of discrimination, we should remand for a new trial. We agree. The

trial court's in-person examination of the credibility and demeanor of the prosecutor

and jury is essential in a Batson analysis. Hicks, 163 Wn.2d at 493. Here, the passage

of time since the ruling would make this analysis problematic. Erickson's presiding judge has left the Seattle municipal bench. Even if he had not, he heard the original

challenge in October 2014, two and a half years ago. It would be unreasonable to

require the trial court to recall and evaluate the prosecutor's demeanor and credibility

after that passage of time, let alone recall and evaluate the jury. It would also be

inappropriate to dismiss Erickson's charges outright. See State v. Grenning, 169

Wn.2d 47, 60, 234 P.3d 169 (2010) ("[O]utside of reversal for insufficiency of the

evidence ... , outright dismissal is rarely granted."). However, remand for a new trial

is generally appropriate when other rights, including trial rights, have been violated.

16 City ofSeattle v. Erickson No. 93408-8

See id. at 61; State v. Brightman, 155 Wn.2d 506, 518, 122 P.3d 150 (2005); State v.

Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991); State v. Russell, 101Wn.2d349,

354, 678 P.2d 332 (1984). Because of the unavailability of the original trial judge and the stretch of time since the original challenge, we remand the case for a new trial.

CONCLUSION

We have repeatedly recognized that Batson is a particularly difficult hurdle to

overcome. As Justice Wiggins noted in Saintcalle, "Batson ... appears to have created a 'crippling burden,' making it very difficult for defendants to prove discrimination even where it almost certainly exists." 178 Wn.2d at 46. This underscores the need to amend our procedures and ensure that jury selection is more secure from the threat of racial prejudice. As a threshold matter, we find that

Erickson's Batson challenge was timely. More significantly, we adopt Rhone's bright-line rule. We hold that the peremptory strike of a juror who is the only member of a cognizable racial group on a jury panel constitutes a prima facie showing of racial motivation. The trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial animus.

We reverse and remand to the trial court for a new trial.

17 City ofSeattle v. Erickson No. 93408-8

WE CONCUR:

18 City ofSeattle v. Erickson (Matthew Alex)

93408-8

STEPHENS, J. (concurring)-! find myself once again sounding "a note of restraint amidst the enthusiasm to craft a new solution to the problem of the discriminatory use of peremptory challenges during jury selection." State v.

Saintcalle, 178 Wn.2d 34, 65, 309 P.3d 326 (2013) (Stephens, J., concurring). I continue to believe "there are better avenues than judicial opinions" for addressing this problem. Id at 69. While I have no opposition to the majority's decision to embrace the bright-line rule articulated in the Rhone dissent,1 it is neither necessary nor particularly likely to transform the Batson2 analysis into a useful tool for combatting racial bias in jury selection.

· The majority's new rule is unnecessary because Matthew Erickson made a prima facie showing of intentional discrimination under the first prong of the Batson

1 State v. Rhone, 168 Wn.2d 645, 658-64, 229 P.3d 752 (2010) (Alexander, J., dissenting). 2 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). City ofSeattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

analysis by proving "'something more' than a peremptory challenge of a member of a racially cognizable group." State v. Rhone, 168 Wn.2d 645, 653, 229 P.3d 752

(2010) (plurality opinion) (emphasis added). Indeed, reversal under the traditional

Batson framework was the sole argument raised in Erickson's motion for discretionary review. 3 See Mot. for Disc. Review (July 25, 2016) at 10-11 ("Because

Mr. Erickson has shown 'something more'-that Juror 5 was stricken from the venire for sharing a relevant life experience steeped wholly in racism and racial tension-he has made the prima facie case for discrimination necessary to satisfy the first prong of Batson."). He further demonstrated that the trial court erred by considering his challenge in light of "whether there were members of any constitutionally protected group on the jury." Id. at 11.

Not only is the majority's new rule unnecessary to the resolution of this case, it is also unlikely to significantly reduce racial bias in jury selection because the ultimate inquiry under Batson remains whether the peremptory strike against a sole member of a constitutionally protected group evidenced intentional race discrimination. Both the majority and Erickson recognize that presuming

3 Erickson first asked the court to embrace the Rhone dissent' s approach in his supplemental brief after review was granted. Suppl. Br. of Pet'r at 16-18. Amici also advocated for this approach. Br. of Amici Curiae Am. Civil Liberties Union of Wash., et al. at 15-16.

-2- City ofSeattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

discrimination under the first step in the analysis is relatively unambitious. See majority at 11 (quoting Rhone dissent that its rule "'merely require[s] the State to offer a race-neutral explanation for its peremptory challenge,"' 168 Wn.2d at 662);

Suppl. Br. of Pet'r at 18 (noting "such a bright-line rule does not create a substantial burden to any party" because "it would merely eliminate the first step of the Batson analysis"). Considering the range of justifications that have traditionally been recognized as race-neutral reasons for striking a juror under the second step of

Batson, taking the first step may not represent much progress. See, e.g., J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 143 & n.16, 114 S. Ct. 1419, 128 L. Ed. 2d 89

(1994) (noting peremptory strikes based on juror experiences disproportionately affecting minority groups remain race neutral absent a showing of pretext);

Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)

(accepting bilingual status as race-neutral reason for striking Latino juror). We are unlikely to see different outcomes unless courts are willing to more critically evaluate proffered race-neutral justifications in future cases.

Pending before this court in our administrative rule-making capacity is a proposed court rule that would alter the method for evaluating claims of race-based peremptory challenges so that the intentional discrimination that must be proved under Batson is no longer required. See Proposed General Rule (GR) 37 (Wash.

-3- City ofSeattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

2017),4 http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDis- play&ruleld=537 [https://perma.cc/YB3Q-U4ZK]. In addition to moving away from Batson's intentional discrimination inquiry, the proposed rule also recognizes that many frequently proffered race-neutral reasons for striking jurors "have operated to exclude racial and ethnic minorities from serving on Junes in

Washington." Id. at cmt. 4. It would therefore create a presumption against the validity ofjustifications such as "expressing a distrust oflaw enforcement or a belief that law enforcement officers engage in racial profiling," or "not being a native

English speaker." Id. at cmt. 4(b ), (g). The proposed rule was formally published for comment from November 2016 through April 2017, and numerous individuals and organizations have commented on the rule. See Comments for GR 375 (Wash.

2017), http://www.courts.wa.gov/court_rules/?fa=court_rules.commentDisplay& ruleld=537. The comments address not only the merits of the proposed rule, but also possible modifications, expansions or alternatives to the rule, and practical challenges to implementation. The debate has been robust and informative, and has underscored two truths: (1) Batson has largely failed in its promise to eliminate bias

4 The rule was published as GR 36, but was renumbered as GR 37 due to the court's adoption earlier this year of a court security rule numbered GR 36 (effective April 25, 2017). 5 See note 4.

-4- City ofSeattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

in jury selection and (2) finding a meaningful solution goes well beyond simply tinkering with the first prong of the Batson analysis.

The court has convened a work group to carefully examine the proposed court rule with the goal of developing a meaningful, workable approach to eliminating bias in jury selection. That process will be informed by the diverse experiences of its participants and will be able to consider far broader perspectives than can be heard in a single appeal. Unconstrained by the limitations of the Batson framework, the rule-making process will be able to consider important policy concerns as well as constitutional issues. It would be unfortunate if today's decision adopting the Rhone dissent's bright-line rule were perceived as somehow signaling that the court has

"fixed the problem." I hope instead that our decision sends the clear message that this court is unanimous in its commitment to eradicate racial bias from our jury system, and that we will work with all partners in the justice system to see this through.

-5- City ofSeattle v. Erickson (Matthew Alex), 93408-8 (Stephens, J., concurring)

-6- City ofSeattle v. Erickson, No. 93408-8 (Yu, J., concurring)

No. 93408-8

YU, J. (concurring)- I concur with the majority's effort to address the equal protection concerns expressed in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986), and I applaud the adoption of a bright-line rule.

However, I write separately because I am concerned that our solution assumes too much and falls short on ensuring that no juror is removed solely because of race, gender, sexual orientation, or religious beliefs. I am unable to say with certainty that every peremptory challenge by the State against a person of color is motivated by racial animosity, and adopting a bright-line rule that does not extend to members of other cognizable groups does not address discrimination on any basis other than race.

In my view, the basic framework of Batson does not work, and the record in this case demonstrates the awkwardness and impracticability of the so-called

Batson challenge. Thus, I now join Justice Gonzalez in calling for the complete abolishment of peremptory challenges. State v. Saintcalle, 178 Wn.2d 34, 69-118,

1 City ofSeattle v. Erickson, No. 93408-8 (Yu, J., concurring)

309 P.3d 326 (2013) (Gonzalez, J., concurring). Too many qualified persons are being excluded from jury service for no reason at all, and tinkering with court rules or issuing incremental decisions a decade at a time are unsatisfactory solutions. As

Justice Gonzalez wisely stated in his concurrence in Saintcalle,

[T]he use of peremptory challenges contributes to the historical and ongoing underrepresentation of minority groups on juries, imposes substantial administrative and litigation costs, results in less effective juries, and unfairly amplifies resource disparity among litigants-all without substantiated benefits. The peremptory challenge is an antiquated procedure that should no longer be used.

Id. at 69-70 (citation omitted).

We should assume that all members of the public who adhere to a summons to appear for jury service are qualified to hear a case unless otherwise shown. Our system of jury selection provides a meaningful method for any party to remove a juror ''for cause" when there is a showing that a particular juror cannot be fair or impartial. Id. at 77. Because jury selection is such an important part of trial, it may be time for us to require that counsel be afforded ample time for thoughtful questioning of prospective jurors, and that removal of jurors must rest solely on causal challenges.

I respectfully concur.

2 City ofSeattle v. Erickson, No. 93408-8 (Yu, J., concurring)

3 FILED

THE SUPREME COURT OF WASHINGTON

IN THE MA TIER OF THE PROPOSED NEW ) ORDER RUL E GE ERAL RULE 37 - JURY SELECTION ) ) NO. 25700-A- I z._i. ( ) ) )

The Proposed Ne\ GR 3 7 - Jury Se lec ti on Workgroup, convened by the upreme Court

·having recommended the adoption of the proposed new Ge neral Rule 37 - Jury Se lection , and

the Court having considered the new rul e, the wo rkgro up 's final report, and comments submitted

to the rule ori ginally proposed by the Ameri can Civil Liberties Union of Washington, and hav in g

determined that the proposed new rule will aid in the prompt and orderly adm ini stration of justi ce ;

ow, therefore, it i hereby

ORDERED:

(a) That the new rul e as attached hereto is ado pted.

(b) The new rul e wi ll be published in the Was hington Reports and will become

effective upon publ icat ion. Page 2 ORDER IN THE MATTER OF THE PROPOSED NEW RULE GENERAL RULE 37 - JURY SELECTION

~ DATED at Olympia, Washington this S / day of April, 2018.

>t u r--' ~ . ~ (CL) -(3), L) ~ ~ CA)~£ Cc) ~ ~ . .

~ NEW General-Rule 37. Jl)RY SELECTION .

(a} Policy and Purpose. The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity. ·

(bl Scope. This rule applies in all jury trials.

(c) Objection. A party may object to the use of a peremptory challenge to raise the issue of im6roper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the panel. The objection must be made before the potential juror is excused, unless new information is discovered.

(d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons that the peremptory challenge has been exercised. ·

(e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record. . ..

(f) Nature of Observer. For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washin_gton State. .

(g) Circumstances Considered. In making its determination, the circumstances the court should consider include, but are not limited to. the following:

(i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it; (ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors; (iii) whether other prospective jurors provided similar answers but · were not the subject of a peremptory challenge by that party; (iv) whether a reason might be disproportionately associated with a race or ethnicity; and (v) if the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases. •I

(h) Reasons Presumptively Invalid Because· historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Washington State. the following are presumptively invalid reasons for a peremptory challenge: (i) having prior contact with law enforcement officers; (ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (iii) having a close relatienship with people who have been stopped, arrested, or convicted of a crime; (iv) living in ~r high-crime neighborhood; (v) having a child outside of marriage; (vi) receiving state benefits; and (vii) not being a native English speaker.

(i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection in Washington State: allegations that the prospective juror was sleeping, inattentive, staring or failing to make eye·contact, exhibited a problematic attitude, body language, or demeanor. or provided unintelligent or confused answers. If any party intends to offer one of these . reasons or a similar reason as the justification· for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A lack of-corroboration by the judge or opposing counsel verifying the behavior shall invalidate the given reason for the peremptory challenge. The Western District of Washington's bench and bar have long-standing commitments to a fair and unbiased judicial process. As a result, the emerging social and neuroscience research regarding unconscious bias prompted the Com1 to create a bench-bar-academic committee to explore the issue in the context of the jury system and to develop and offer tools to address it.

One tool the committee developed was a set ofjury instmctions that address the issue of unconscious bias. Research regarding the efficacy ofjury instructions is still young and some of the literature has raised questions whether highlighting the notion of unconscious bias would do more harm than good. 1 However, the body of research supp011s that, as a general matter, awareness and mindfulness about one's own unconscious associations are important and thus a decision-maker's ability to avoid these associations, however that is achieved, will likely result in fairer decisions. 2

Accordingly, the proposed instmctions are intended to alert the jury to the concept of unconscious bias and then to instmct the jury in a straightforward way not to use bias, including unconscious bias, in its evaluation of information and credibility and in its decision-making. The instructions thus serve the pmposes of raising awareness to the associations jurors may be making without express knowledge and directing the jurors to avoid using these associations.

The committee has incorporated unconscious bias language into a preliminary instrnction, into the witness credibility instruction, and into a closing instrnction. 3 In addition, the committee has developed an instmction that can be given before jury selection if the parties are going to ask questions dming voir dire regarding bias, including unconscious bias.

1 See, e.g., Irene V. Blair, The Malleability of Automatic Stereotypes and Prejudice, 6 PERSONALITY & SOC. PSYCHOL. REV. 242 (2002) (cumulating research on value of instmction to suppress stereotype and finding it mixed); Jennifer K. Elek & Paula Hannaford-Agor, First, Do No Harm: On Addressing the Problem oflmplicit Bias in Juror Decision Making, 49 CT. REV. 190, 193 195, 198 (2013), available at http://aja.ncsc.dni.us/publications/courtrv/cr49-4/CR49-4Elek.pdf; Jennifer A. Richeson & J. Nicole Shelton, Negotiating Interracial Interactions: Costs, Consequences, and Possibilities, 16 CURRENT DIRECTIONS PSYCHOL. SCI. 316 (2007); Jacquie D. Vorauer, Completing the Implicit Association Test Reduces Positive Intergroup Interaction Behavior, 23 PSYCHOL. SCI. 1168(2012) (finding that White participants' taking race­ based IAT led to their non-White (Aboriginal) partners feeling less well regarded than after interactions after a non­ race-based IAT); Jennifer K. Elek & Paula Hannaford-Agor, Can Explicit Instructions Reduce Expressions of Implicit Bias?: New Questions Following a Test of a Specialized Jury Instruction, NA T'L CENTER FOR STATE CTS. (Apr. 2014), available at http://ncsc.contentdm.oclc.org/cdm/ref/collection/juries/id/273 (finding "no significant effects of the instruction on judgments of gui It, confidence, strength of prosecution's evidence, or sentence length"; but the study's authors also reported that they were unable to identify the more traditionally­ expected baseline bias, "which prevented a complete test of the value of the instructional intervention."). ~ See Adam Benforado & John Hanson, The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy, 57 EMORY L.J. 31 1, 325- 26 (2007). 3 The committee suggests introducing the topic as part of the preliminary instructions as there is research that suggests priming jurors may be more effective than waiting until the end ofa case. See, e.g., Lisa Kern Griffin, Narrative, Truth, and Trial, 101 GEO. L.J. 281, 232 (2013); Kurt Hugenberg, Jennifer Miller & Heather M. Claypool, Categorization and Individuation in the Cross-Race Recognition Deficit: Toward a Solution to an Insidious Problem, 43 J. EXPERIMENTAL SOC. PSYCH. 334 (2007) (finding that warnings given ahead of time about likely misperceptions of other race faces may be effective). PRELIMINARY INSTRUCTION TO BE GIVEN TO THE ENTIRE PANEL BEFORE JURY SELECTION

It is important that you discharge your duties without discrimination, meaning that bias regarding the race, color, religious beliefs, national origin, sexual orientation, gender identity, or gender of the [plaintiff,] defendant, any witnesses, and the lawyers should play no part in the exercise of your judgment throughout the trial.

Accordingly, during this voir dire and jury selection process, I [the lawyers] may ask questions [or use demonsh·ative aids] related to the issues of bias and unconscious bias. PRELIMINARY INSTRUCTIONS TO BE GIVEN BEFORE OPENING STATEMENTS

DUTY OF JURY

Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some preliminary instructions. At the end of the trial I will give you more detailed [written] instructions that will control your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. 1 Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions. 2

In addition, please do not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be-that is entirely up to you.

Model Ninth Circuit Criminal Instruction 1.1 (modified). Criminal Instruction 1.1 is similar to Model Civil Instruction 1.1 B.

1 Definitions modified by combining writings and comments by Harvard Professor Mahzarin Banaji. 2 http://faculty.washington.edu/agg/pdf/Kang&al.ImplicitBias.UCLALawRev.2012.pdf CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the witness's opportunity and ability to see or hear or know the things testified to; (2) the witness's memory; (3) the witness's manner while testifying; (4) the witness's interest in the outcome of the case, if any; (5) the witness's bias or prejudice, if any; (6) whether other evidence contradicted the witness's testimony; (7) the reasonableness of the witness's testimony in light of all the evidence; and (8) any other factors that bear on believability.

You must avoid bias, conscious or unconscious, based on the witness's race, color, religious beliefs, nationaf origin, sexual orientation, gender identity, or gender in your determination of credibility.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

Model Ninth Circuit Criminal Instruction 1.7 (modified) INSTRUCTION TO BE GIVEN DURING CLOSING INSTRUCTIONS (perhaps before 7 .5 - Verdict Form)

DUTY OF JURY

I want to remind you about your duties as jurors. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. 1 Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions. 2

Model Ninth Circuit Criminal Instruction 1.1 (modified). Criminal Instruction 1.1 is similar to Model Civil Instruction 1. lB.

1 Definitions modified by combining writings and conunents by Harvard Professor Mahzarin Banaji. 2 http://faculty.washington.edu/agg/pdf/Kang&al.lmplicitBias.UCLALawRev.2012.pdf The Western District of Washington's bench and bar have long-standing commitments to a fair and unbiased judicial process. As a result, the emerging social and neuroscience research regarding unconscious bias prompted the Court to create a bench-bar-academic committee to explore the issue in the context of the jury system and to develop and offer tools to address it.

One tool the committee developed was a set of jury instructions that address the issue of unconscious bias. Research regarding the efficacy of jury instructions is still young and some of the literature has raised questions whether highlighting the notion of unconscious bias would do more harm than good. 1 However, the body of research supports that, as a general matter, awareness and mindfulness about one's own unconscious associations are important and thus a decision-maker's ability to avoid these associations, however that is achieved, will likely result in fairer decisions. 2

Accordingly, the proposed instructions are intended to alert the jury to the concept of unconscious bias and then to instruct the jury in a straightforward way not to use bias, including unconscious bias, in its evaluation of information and credibility and in its decision-making. The instructions thus serve the purposes of raising awareness to the associations jurors may be making without express knowledge and directing the jurors to avoid using these associations.

The committee has incorporated unconscious bias language into a preliminary instruction, into the witness credibility instruction, and into a closing instruction. 3 In addition, the committee has developed an instruction that can be given before jury selection if the parties are going to ask questions during voir dire regarding bias, including unconscious bias.

1 See, e.g., Irene V. Blair, The Malleability of Automatic Stereotypes and Prejudice, 6 PERSONALITY & SOC. PSYCHOL. REV. 242 (2002) (cumulating research on value of instruction to suppress stereotype and finding it mixed); Jennifer K. Elek & Paula Hannaford-Agor, First, Do No Harm: On Addressing the Problem oflmplicit Bias in Juror Decision Making, 49 CT. REV. 190, 193 I 95, 198 (2013), available at http://aja.ncsc.dni.us/publications/courtrv/cr49-4/CR49-4Elek.pdf; Jennifer A. Richeson & J. Nicole Shelton, Negotiating Interracial Interactions: Costs, Consequences, and Possibilities, I 6 CURRENT DIRECTIONS PSYCHOL. SCL 316 (2007); Jacquie D. Vorauer, Completing the Implicit Association Test Reduces Positive Intergroup Interaction Behavior, 23 PSYCHOL. SCI. 1168 (2012) (finding that White participants' taking race­ based IAT led to their non-White (Aboriginal) partners feeling less well regarded than after interactions after a non­ race-based JAT); Jennifer K. Elek & Paula Hannaford-Agor, Can Explicit Instructions Reduce Expressions of Implicit Bias?: New Questions Following a Test ofa Specialized Jury Instruction, NAT'L CENTER FOR STATE CTS. (Apr. 2014), available at http://ncsc.contentdm.oclc.org/cdm/ref/collection/juries/id/273 (finding "no significant effects ofthe instruction on judgments of guilt, confidence, strength of prosecution' s evidence, or sentence length"; but the study's authors also reported that they were unable to identify the more traditionally­ expected baseline bias, "which prevented a complete test of the value of the instructional intervention."). 2 See Adam Benforado & John Hanson, The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy, 57 EMORY L.J. 311, 325- 26 (2007). 3 The committee suggests introducing the topic as part of the preliminary instructions as there is research that suggests priming jurors may be more effective than waiting until the end ofa case. See, e.g., Lisa Kern Griffin, Narrative, Truth, and Trial, IOI GEO. L.J. 281 , 232 (2013); Kurt Hugenberg, Jennifer Miller & Heather M. Claypool, Categorization and Individuation in the Cross-Race Recognition Deficit: Toward a Solution to an Insidious Problem, 43 J. EXPERIMENT AL SOC. PSYCH. 334 (2007) (finding that warnings given ahead of time about likely misperceptions of other race faces may be effective). PRELIMINARY INSTRUCTION TO BE GIVEN TO THE ENTIRE PANEL BEFORE JURY SELECTION

It is important that you discharge your duties without discrimination, meaning that bias regarding the race, color, religious beliefs, national origin, sexual preference, or gender of the [plaintiff,] defendant, any witnesses, and the lawyers should play no part in the exercise of your judgment throughout the trial.

Accordingly, during this voir dire and jury selection process, I [the lawyers] may ask questions [or use demonstrative aids] related to the issues of bias and unconscious bias. 1.1 DUTY OF JURY

Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some preliminary instructions. At the end of the trial I will give you more detailed [written] instructions that will control your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. Please do not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be-that is entirely up to you.

Comment

See generally JURY INSTRUCTIONS COMMITTEE OF THE NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES§ 3.3 (2013). PRELIMINARY INSTRUCTIONS TO BE GIVEN BEFORE OPENING STATEMENTS

DUTY OF JURY

Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some preliminary instructions. At the end of the trial I will give you more detailed [written] instructions that will control your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. 1 Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions. 2

In addition, please do not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be-that is entirely up to you.

Model Ninth Circuit Criminal Instruction 1.1 (modified). Criminal Instruction 1.1 is similar to Model Civil Instruction l. lB.

1 Definitions modified by combining writings and comments by Harvard Professor Mahzarin Banaji. 2 http://faculty.washington.edu/agg/pdf/Kang&al.ImplicitBias.UCLALawRev.2012.pdf PRELIMINARY INSTRUCTIONS TO BE GIVEN BEFORE OPENING STATEMENTS

DUTY OF JURY

Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some preliminary instructions. At the end of the trial I will give you more detailed [written] instructions that will control your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or · preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. 1 Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions. 2

In addition, please do not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be-that is entirely up to you.

Model Ninth Circuit Criminal Instruction 1.1 (modified). Criminal Instruction 1.1 is similar to Model Civil Instruction 1. lB.

1 Definitions modified by combining writings and comments by Harvard Professor Mahzarin Banaji. 2 http://faculty.washington.edu/agg/pdf/Kang&al.ImplicitBias.UCLALawRev.2012.pdf 1.7 CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

( 1) the witness's opportunity and ability to see or hear or know the things testified to;

(2) the witness's memory;

(3) the witness's manner while testifying;

(4) the witness's interest in the outcome of the case, if any;

( 5) the witness's bias or prejudice, if any;

(6) whether other evidence contradicted the witness's testimony;

(7) the reasonableness of the witness's testimony in light of all the evidence; and

(8) any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it. What is important is how believable the witnesses are, and how much weight you think their testimony deserves.

Comment

The Committee recommends that the jurors be given some guidelines for determining credibility at the beginning of the trial so that they will know what to look for when witnesses are testifying.

See also Instruction 3.9 (Credibility of Witnesses) for the corresponding instruction to be given at the end of the case. ·

Approved 112016 CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the witness's opportunity and ability to see or hear or know the things testified to; (2) the witness's memory; (3) the witness's manner while testifying; (4) the witness's interest in the outcome of the case, if any; (5) the witness's bias or prejudice, if any; (6) whether other evidence contradicted the witness's testimony; (7) the reasonableness of the witness's testimony in light of all the evidence; and (8) any other factors that bear on believability.

You must avoid bias, conscious or unconscious, based on the witness's race, color, religious beliefs, national origin, sexual preference, or gender in your determination of credibility.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

Model Ninth Circuit Criminal Instruction 1.7 (modified) CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the witness's opportunity and ability to see or hear or know the things testified to; (2) the witness's memory; (3) the witness's manner while testifying; (4) the witness's interest in the outcome of the case, if any; (5) the witness's bias or prejudice, if any; (6) whether other evidence contradicted the witness's testimony; (7) the reasonableness of the witness's testimony in light of all the evidence; and (8) any other factors that bear on believability.

You must avoid bias, conscious or unconscious, based on the witness's race, color, religious beliefs, national origin, sexual orientation or gender identity, or gender in your determination of credibility.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

Model Ninth Circuit Criminal Instruction 1.7 (modified) INSTRUCTION TO BE GIVEN DURING CLOSING INSTRUCTIONS (perhaps before 7.5 - Verdict Form)

DUTY OF JURY

I want to remind you about your duties as jurors. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. 1 Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions. 2

Model Ninth Circuit Criminal Instruction 1.1 (modified). Criminal Instruction 1.1 is similar to Model Civil Instruction 1. lB.

1 Definitions modified by combining writings and comments by Harvard Professor Mahzarin Banaji. 2 http://faculty.washington.edu/agg/pdf/Kang&al.ImplicitBias.UCLALawRev.2012.pdf Case 2:15-cr-00083-RAJ Document 51 Filed 07/10/15 Page 1 of 3

Judge Richard A. Jones 1

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4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE

6 UNITED STATES OF AMERICA, ) NO. CR15-083RAJ ) 7 Plaintiff, ) ) DEFENDANT’S PROPOSED VOIR 8 vs. ) DIRE ) 9 ANDREW LEE HARRIS, ) ) 10 Defendant. ) ) 11 Andrew Harris is African American. All the non-law enforcement witnesses who 12 13 will be testifying against Mr. Harris, including the cooperating witnesses who

14 participated in illegal drug activities, are White. Mr. Harris is the only person being 15 charged with a crime arising from the instant investigation. In this case, the question of 16 “implicit bias” is highly relevant for selecting a fair and impartial jury. We therefore ask 17 18 that the following be part of the Court’s Voir Dire: 19 If selected as a juror, it will be important to reach a verdict without discrimination. This means that the race, color, religious beliefs, national origin, sexual preference, or 20 gender of the defendant, any witnesses, and the lawyers should play no part in your 21 decision. However, all of us may have feelings, assumptions, perceptions, and fears based on stereotypes—that is, “implicit biases” that we may not be consciously aware of. 22 The following video clip is intended to assist jurors in thinking about these issues 23 and to help possible discussion of them during jury selection. 24

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26 FEDERAL PUBLIC DEFENDER DEFENDANT’S PROPOSED VOIR DIRE - 1 1601 Fifth Ave., Suite 700 USA vs. Harris / CR15-083RAJ Seattle, Washington 98101 (206) 553-1100

Case 2:15-cr-00083-RAJ Document 51 Filed 07/10/15 Page 2 of 3

Dated is 10th day of July, 2015 1 Respectfully submitted, 2

s/ Jesse Cantor 3 Assistant Federal Public Defender Attorney for Andrew Lee Harris 4

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26 FEDERAL PUBLIC DEFENDER DEFENDANT’S PROPOSED VOIR DIRE - 2 1601 Fifth Ave., Suite 700 USA vs. Harris / CR15-083RAJ Seattle, Washington 98101 (206) 553-1100

Case 2:15-cr-00083-RAJ Document 51 Filed 07/10/15 Page 3 of 3

1 CERTIFICATE OF SERVICE 2 I certify that on July 10, 2015, I filed the foregoing with the Clerk of the Court 3 using the CM/ECF system, which will send notification of filing to all registered parties. 4

5 s/ Charlotte Ponikvar 6 Charlotte Ponikvar, Paralegal Office of the Federal Public Defender 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FEDERAL PUBLIC DEFENDER DEFENDANT’S PROPOSED VOIR DIRE - 3 1601 Fifth Ave., Suite 700 USA vs. Harris / CR15-083RAJ Seattle, Washington 98101 (206) 553-1100

1

1 UNITED STATES DISTRICT COURT

2 WESTERN DISTRICT OF WASHINGTON

3 UNITED STATES OF AMERICA, 4 Plaintiff, No. 2:15-cr-00083-RAJ 5 vs. Seattle, WA 6 ANDREW LEE HARRIS, Jury Vair Dire 7 July 20, 2015 Defendant. 8

9 VERBATIM REPORT OF PROCEEDINGS BEFORE THE HONORABLE JUDGE RICHARD A. JONES 10 UNITED STATES DISTRICT COURT

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14 APPEARANCES:

15 FOR THE PLAINTIFF: ERIN BECKER United States Attorney's Office 16 700 Stewart Street, Suite 5220 Seattle, WA 98101-1271 17 [email protected]

18 GRADY J. LEUPOLD United States Attorney's Office 19 700 Stewart Street, Suite 5220 Seattle, WA 98101-1271 20 [email protected]

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1 FOR THE DEFENDANT: JESSE GUERRERO CANTOR Federal Public Defender's Office 2 1601 5th Ave Suite 700, Westlake Center 3 Office Tower Seattle, WA 98101 4 [email protected]

5 KYANA GIVENS Federal Public Defender's Office 6 1601 5th Ave Suite 700, Westlake Center 7 Office Tower Seattle, WA 98101 8 [email protected]

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11 Andrea Ramirez, CRR, RPR Official Court Reporter 12 United States District Court Western District of Washington 13 700 Stewart Street, Suite 17205 Seattle, WA 98101 14 [email protected]

15 Reported by stenotype, transcribed by computer

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USA v. Harris, 7/20/15 (Vair Dire)

1 (Prospective Jurors enter the courtroom)

2 THE COURT: The law requires all prospective jurors

3 be placed under oath. At this time, I ask each of you, please

4 raise your right hand and be placed under oath by the court

5 deputy.

6 (Court deputy administers the oath)

7 THE COURT: Please be seated.

8 Good morning, ladies and gentlemen of the jury. I'd like

9 to welcome you to your jury service in the United States

10 District Court. And this is our court. It's not my court.

11 It's not anybody's court here. It's our court. And we all

12 have the opportunity to share it and also serve. That's part

13 of our duty. And I hope that you do treat this as an

14 opportunity to serve. There are very few things that we

15 have -- that we have as a responsibility as citizens, and

16 that's to perform jury service. I hope the video helped you

17 refocus on the importance of jury service and your juror

18 handbook also helped you refocus on the importance of the

19 responsibilities we have.

20 When I say we all have the responsibility, that includes

21 me. When you sign up to become a judge and you get a job like

22 this or any other judgeship, there's no special card that you

23 receive that says you're exempt from jury service. As a matter

24 of fact, I've been called and summoned for jury service, I

25 think, about five or six times over my lifetime. For a while, 4

USA v. Harris, 7/20/15 (Vair Dire)

1 I used to think that somebody had my number, because one year,

2 I got called for jury service twice, once in Superior Court,

3 once in city court. And I'd sit in that room for three days

4 doing absolutely nothing. I could tell you, I read all the

5 graffiti on all the doors and the walls and everything else in

6 King County Superior Court. And that experience taught me one

7 thing: To be more sensitive to the needs of the jurors. And I

8 try and do that.

9 We expect to pick a jury today. And I will try and keep a

10 minimum to any down time that you have where you're doing

11 nothing in this courthouse. We had some matters that we had to

12 resolve, but those matters were important, but it made -- will

13 make things run more efficiently during the course of the

14 trial. These aren't matters that I share with the jury, but we

15 did have to spend a little bit of time. For any delay of that

16 type, I accept responsibility. I'll apologize to you for any

17 delay or down time that you've had this morning. But, again,

18 for the balance of the trial, I'd rather have you leave early

19 or take an early lunch period so that you don't have to just

20 situating waiting unnecessarily for long periods of time.

21 Now, a few other basic rules, before we go into the

22 formalities of jury service. And one is the importance that

23 you can hear every single thing that's being said. And I want

24 to make sure that you can hear me, the parties, and the

25 witnesses. If, during the course of jury selection or trial, 5

USA v. Harris, 7/20/15 (Vair Dire)

1 you can't hear something, I want you just to raise your hand

2 and say: I can't hear. If you don't want to be rude and just

3 interrupt someone, just wave your hand frantically and cup your

4 ear, and that sends a message to me that we need to keep our

5 voices up. The lawyers know that they are supposed to ask

6 questions from the lecturn. They will ask questions from

7 there, and they'll speak into the microphone. I also permit

8 the lawyers to turn their back to the bench when they're asking

9 jurors questions. That's not out of disrespect to me, but

10 because they need to face the audience.

11 Counsel, you do have the Court's permission to adjust your

12 belongings, when you're asking those questions, so that you can

13 face the jury as you believe is necessary or appropriate.

14 So, again, I believe that we will need to -- or should

15 have the jury selected today.

16 Now, my first question is, how many of you have had some

17 form of jury service at any point in time in the past? State

18 court, city court, federal court? So it looks like a

19 percentage of you have had some experience.

20 Now, most people get their experience in jury service

21 from -- or from trial from one particular place. And where is

22 that? Watching TV. Exactly. You get a warped perspective of

23 what happens in the courtroom. Please don't hold me to the

24 standards of Judge Judy or any of the other -- I'll just call

25 them entertainers on the TV, and don't hold the lawyers to some 6

USA v. Harris, 7/20/15 (Vair Dire)

1 of the activities that the lawyers get away with during the

2 course of some of these TV shows. Those antics aren't

3 professional. They're not permitted. And all the lawyers that

4 are before you today are professionals, and they're very good

5 at what they do, so don't expect that type of entertainment.

6 They'll be advancing their case in a professional manner.

7 Now, you may have seen some different things about what

8 happens in the Court. But before we get started, I want to

9 introduce who some of the players are on this side of the

10 bench. To my left is one of my law clerks. And Gloria Labbad

11 is a law clerk that provides a tremendous amount of assistance

12 to me. The judges have two law clerks, or three, and they

13 provide an enormous amount of assistance. And I couldn't do my

14 job without the benefit of the law clerk.

15 Before me is my in-court deputy, Victoria Erickson. And

16 her responsibility is to handle the exhibits, handle the

17 process of what's going on during the course of the trial. And

18 she has a tremendous amount of responsibility in the context

19 that every single exhibit and the recording of every exhibit

20 and the management of the trial at this point goes through her

21 hands, and also the interfacing of the jury. So if you need

22 things or need questions answered, Ms. Erickson provides that

23 service. And again, she provides excellent and extraordinary

24 service in that capacity.

25 To my right is the court reporter, Andrea Ramirez. Her 7

USA v. Harris, 7/20/15 (Vair Dire)

1 job and her responsibility is to record every spoken word in

2 the courtroom. And I emphasize "spoken word" because there's

3 going to come a point in time when I'm asking you questions, we

4 need to hear audible responses from you. When I ask questions,

5 or if the lawyers ask questions, someone is going to answer a

6 question with a proverbial answer: Uh-huh. She has to record

7 a series of "M's" or "U-M-U-M" or however you spell "uh-huh,"

8 because I don't know. We need audible answers, so please say

9 "yes" or "no" when you're answering questions, because she can

10 only record what's being said in court.

11 And I'm assuming everyone's had the opportunity to review

12 the juror handbook and had the video. And having removed

13 those, I take it that you're aware that the first part of a

14 criminal trial involves the selection of a jury. Now, under

15 the Constitution, a defendant charged with a criminal offense

16 has the right to be tried by an impartial jury made up of 12

17 citizens of our community.

18 Now, if you're selected as a juror, it will be important

19 that you reach a verdict without discrimination. This means

20 that the race, color, religious beliefs, national origin,

21 sexual preference, or gender of the defendant, any witnesses,

22 and the lawyers should play no part in your decision.

23 Now, there are a number of questions I suspect that each

24 of you may have about what's happening, what's going to happen,

25 and how did I get here. So I'll answer the first question: 8

USA v. Harris, 7/20/15 (Vair Dire)

1 How was I selected?

2 Now, again, no one has your number. So if you've had jury

3 service or a summons several times, we don't have you in a

4 rolodex some place -- I don't even know if anybody knows what a

5 rolodex is anymore. But we don't have any particular place in

6 the computer to bring you into the Court. So you are randomly

7 selected in the community at large. And second, you are

8 randomly selected, again, in the order in which you came into

9 the courtroom. That was all done by computer.

10 Now, what's your role? Your role will be the fact finder

11 in this case. My job is different. My job is to be the trial

12 manager or referee. That's my job, to make all the legal

13 determinations. You will decide the facts in the case. That's

14 your job as a juror.

15 What tools do you need? In addition to your common sense,

16 life, and background experiences, the only actual tools that

17 you'll receive will be a notebook. And I'll give you

18 instruction on how to use the notebook at the appropriate time,

19 once you're selected as a juror.

20 Now, what can I consider? The only evidence you can

21 consider will be presented to you during the course of trial

22 from the mouths of witnesses or exhibits or information

23 provided to you in this courtroom. That means that you're not

24 to do any type of independent research. That means that you're

25 not supposed to look up terms in the dictionary, read news 9

USA v. Harris, 7/20/15 (Vair Dire)

1 articles, do any independent research. As a matter of fact,

2 I've excused jurors in the past who felt it was their job or

3 duty to help better educate other members of the jury by

4 getting this other information that they've done some research

5 on. That's completely improper. And it also includes doing

6 any type of research on the internet.

7 Now, while we're on the subject of the internet, it's

8 improper for you to comment on or update your status on any

9 social networking site regarding any specific aspect of jury

10 service. This includes Facebook, Twitter, and any other social

11 networking sites. Also, blogging on the topic of jury service,

12 the justice system, or any aspect of this case is inappropriate

13 while you are on jury service.

14 Now, is any juror so connected and wired to the internet

15 and social networking that that's a part of your life blood and

16 existence that you can't separate yourself from that and that

17 you could not follow the Court's instructions? We haven't lost

18 our minds, and we still have common sense that prevails.

19 Now, let's talk now about the trial schedule, because

20 jurors often want to know: What's it going to be like? What's

21 my day going to be like? We will be in trial, generally, from

22 Monday through Thursday. Unless I indicate otherwise, the

23 trial will only be Monday through Thursday. If you have

24 completed or if the parties have completed the trial and rest,

25 for example, on Thursday, if that's the case, then you'd begin 10

USA v. Harris, 7/20/15 (Vair Dire)

1 your deliberations on Thursday, then you would be expected to

2 come back on Friday and continue deliberations. But if the

3 case is still going forward on Thursday and all the evidence

4 hasn't been concluded, then you'd be expected to come back the

5 following week. And, obviously, we don't have trial on the

6 weekends. So, again, Monday through Thursday, while the case

7 is actively going. After the parties rest, then you'll

8 deliberate Thursday and continue on Friday. And you won't have

9 to deliberate past 4:30 any given day as well. I know years

10 ago, if you had jury service, I remember taking verdicts, as a

11 lawyer, 7:30, 8:30 at night. We don't do that anymore. That's

12 part of the past. But nonetheless, I want to make sure that

13 you understood the days.

14 Now, let's talk about our normal schedule. Our normal

15 schedule is 9:00 to 4:30 every day. We'll go from 9:00 until

16 4:30, but we'll take a break at 10:30 for 15 minutes, from

17 10:30 to 10:45. We go from then until noon. We have an

18 hour-and-a-half for lunch. You can do whatever you want. You

19 can run over to Nordstrom's and burn your credit card up or do

20 whatever you want to do in life, but that's your time. We ask

21 you to come back and be in that jury room before 1:30,

22 actually, so that when Victoria comes back, you're ready to go

23 right at 1:30. We start at 1:30. We go until 2:45. We take a

24 15-minute break. Start again at 3:00, go from 3:00 until 4:30,

25 and we break. 11

USA v. Harris, 7/20/15 (Vair Dire)

1 I'm pretty tight as far as time allocations for the

2 parties. We will stop every day at 4:30. The only reason we

3 would go past 4:30 is if the lawyers have asked the Court and

4 they've been trying to avoid that witness having to come back

5 the following day. And my direct question to the lawyers would

6 be: How much time will you need to complete the examination of

7 the witness? If the lawyers talk about anything more than just

8 a few minutes, then that witness will just have to come back

9 the next day. That way, as a juror, you can plan your

10 schedule, you can catch a bus, and you can have your rides pick

11 you up without having to worry about that particular concern.

12 Now, let's talk about outside contact. It's completely

13 improper for you or myself or the parties to have any contact

14 with you whatsoever outside the confines of this courtroom. So

15 that means between now and the end of the trial I won't speak

16 to you other than in this courtroom. The lawyers shouldn't

17 speak to you other than in this courtroom.

18 Now, if you see us in the hallways or around one of the

19 dining establishments around this courthouse, if we see you,

20 please don't approach us. Don't even ask us questions about

21 how our Mariners are doing or how hot it was yesterday or any

22 innocuous concept. We can't have contact with you, period.

23 It's not that we're unfriendly, but we're trying to maintain

24 the appearance of fairness and to avoid the appearance of

25 unfairness. Let me put it in context this way. If you were a 12

USA v. Harris, 7/20/15 (Vair Dire)

1 party in this case and you were to come back from lunch early,

2 and you saw one of the jurors having a conversation from afar,

3 you'd have no idea what they were talking about, but it would

4 make you feel uncomfortable because it just doesn't seem right

5 that someone could have a chance to talk to a juror that's

6 connected to the case. So to avoid that appearance of

7 unfairness or impropriety, no contact whatsoever. But you do

8 have my solemn promise that as soon as this case is over, time

9 permitting it and my availability, I will personally come back

10 to the jury room and answer any questions that you had about

11 what took place during the course of the trial, and I'll give

12 my best effort to do that. And I'd say I'm pretty close to

13 being almost perfect to being able to do that with most of the

14 juries.

15 Now that I've given you kind of a little bit more

16 background about what you can expect, what some of your

17 questions may have been, let me formally introduce the case and

18 the parties. This is a criminal case. This is the matter of

19 the United States of America vs. Andrew Harris. The government

20 is represented by Assistant United States Attorneys Erin Becker

21 and Grady Leupold.

22 Counsel, would you please introduce yourselves and

23 introduce the other individuals connected to your team or

24 seated at counsel table.

25 MS. BECKER: Good morning. I'm Erin Becker, 13

USA v. Harris, 7/20/15 (Vair Dire)

1 Assistant United States Attorney. I represent the United

2 States in this criminal case. I'm assisted by Grady Leupold,

3 who's also an Assistant United States Attorney.

4 We have sitting with us at counsel table Special Agent

5 Nicholas Bryson with the Drug Enforcement Administration.

6 He'll be sitting with us throughout the trial. Also seated in

7 the back of the courtroom, standing at the moment, who will be

8 here throughout the trial, is Detective Jayce Gutzler with the

9 Kirkland Police Department.

10 THE COURT: Thank you.

11 MS. BECKER: Thank you.

12 THE COURT: Defendant Andrew Harris is represented by

13 Counsel Jesse Cantor and Kyana Givens.

14 Counsel, would you please stand, introduce yourselves, and

15 introduce the other members at your table.

16 MR. CANTOR: Good morning, everyone. My name is

17 Jesse Cantor, and I represent Andrew Harris.

18 MS. GIVENS: Good morning, everyone. My name is

19 Kyana Givens, and I also represent Andrew Harris, who is seated

20 right here. The next person over is Emily Ziel. She's a

21 paralegal from our office. And then at the very end of the

22 table is Cathrina Altimari-Brown, and she's a law clerk in our

23 office as well.

24 THE COURT: Thank you. Please be seated.

25 The government has obtained an indictment from the grand 14

USA v. Harris, 7/20/15 (Vair Dire)

1 jury charging Mr. Harris with the following: Two counts of

2 distribution of heroin, two counts of possession of heroin with

3 intent to distribute, two counts of possession of

4 methamphetamine with intent to distribute, one count of

5 possession of a firearm in furtherance of a drug trafficking

6 crime, and one count of felon in possession of a firearm.

7 Please remember, the indictment is simply a description of the

8 charges made by the government against the defendant. An

9 indictment is not evidence of anything.

10 The defendant has entered a plea of not guilty to each of

11 the charges, and he is presumed innocent unless and until he is

12 proved guilty beyond a reasonable doubt. The burden of proof

13 is upon the government, and a defendant always has the right to

14 remain silent, and he never has to prove innocence or present

15 any evidence.

16 Now, I'm about to begin the formal part of asking general

17 questions, or what we refer to as voir dire. I'll ask a series

18 of general questions. After I finish, then each side will have

19 a maximum of 45 minutes to ask you questions. Now, I will give

20 them a two-minute warning before the time is about to expire.

21 I'll apologize in advance to each of the parties if I disrupt

22 their flow or any statement. But I do need to make sure that

23 they know that they have a little bit of time and they should

24 wrap up. And the lawyers know that once that 45 minutes is

25 expired, they're expected to be seated, even if they have that 15

USA v. Harris, 7/20/15 (Vair Dire)

1 one last question that they haven't asked of you.

2 Now, these questions aren't designed to embarrass you or

3 to pry into your private affairs. They're just designed to try

4 and get information to make the best selection on who the best

5 possible juror could be to serve in this case.

6 Now, also, if there's a question that you feel: I just

7 can't answer that question in public, I'd prefer not to answer

8 a question like that in front of everybody else, if you do have

9 that type of concern, we can always give you the opportunity to

10 answer that question at the sidebar. That means that the court

11 reporter would come over, and the lawyers would ask you that

12 question. And that way we can get that answer resolved. But

13 nonetheless, that's something of very private concern. Please

14 don't ask for a sidebar conference like that because Ellen

15 Degeneres is giving away some gifts, and you want to be home at

16 3:30 today to see what she's giving away. It has to be

17 something that's pretty important and pretty critical.

18 Now, each of you probably think: I'm completely unbiased,

19 and I would make the perfect juror to sit on a case like this.

20 I think we all have to recognize that we come into this world

21 and we develop biases about different features and aspects of

22 life. And I think we need to understand that because of our

23 unique backgrounds, we may have strong opinions about topics or

24 matters, and we might not be the best juror to sit on a

25 particular case. That's why the lawyers are permitted to ask 16

USA v. Harris, 7/20/15 (Vair Dire)

1 questions of you, to see who's best suited to serve on the

2 jury.

3 Now, please don't take personal offense if you're excused.

4 Lord knows, I've served on juries where I've been excused -- as

5 a matter of fact, I've been excused every single time. I can't

6 imagine why, but I haven't been able to serve on any juries.

7 So I don't take it personal, nor should you. Just accept that

8 you might not be the best juror on this particular case.

9 So when I ask you questions on voir dire, please, first of

10 all, it's going to be a general question, hold your card up and

11 keep your card up, right-side up. Victoria will call your name

12 or your number. Put your card face down. So if I ask the

13 general question: Has everybody had an opportunity to take a

14 deep breath this morning? You should probably hold your card

15 up. Then Victoria will call your numbers, put your card down,

16 and then we can go to the next question. Please don't keep

17 your card up after she's called your card.

18 Also, we're going to take a break at lunchtime. And when

19 we take a break, sometimes a juror is walking around at

20 lunchtime and they think or recall something that's in answer

21 to a question. And you think: I've just committed a sin or a

22 crime by the fact that I didn't volunteer that information. If

23 that happens, it's okay after the lunch break to say: Judge,

24 parties, there's something else I need to volunteer. We'd

25 rather get the information than you go back to the jury room as 17

USA v. Harris, 7/20/15 (Vair Dire)

1 a juror and sit upon that information. We need to get it, so

2 please share it at any point in time.

3 Now, the parties, during the course of their chance to ask

4 you questions, have the chance to excuse jurors for cause.

5 That means they'll have to give me a specific reason to excuse

6 a juror. That's outside of your presence, and it will be done

7 at the side, or sidebar conference. This gives them an

8 opportunity to excuse some jurors if they think there's a

9 particular bias or some particular background or some prejudice

10 that you've stated about your background or experience that

11 gives them a justification to want to excuse you for cause.

12 They also have the right to challenge a juror by what's

13 called a peremptory challenge. They're not required to give

14 any explanation to the Court. We'll give them two sheets of

15 paper. They'll have a chance, after all the questions are

16 asked, to write juror name and numbers down, and then we'll

17 select those jurors with the lowest numbers, and they'll serve

18 on the jury.

19 Now, we need 12 jurors for this case, and we're going to

20 pick two alternates, so it will be actually 14 people that will

21 be seated in the jury box. When the trial is finished, the two

22 of you will be excused, and I'll give you an additional

23 instruction on what happens at that point in time.

24 When you're answering your questions to questions I ask of

25 you or questions the lawyers ask of you, please be 18

USA v. Harris, 7/20/15 (Vair Dire)

1 straightforward in your answers. Don't try and anticipate

2 where we're going. Don't try and second-guess. The very best

3 answer that you can give to a question is "yes" or "maybe" or

4 "I don't know." But you don't have to try and hold back on any

5 information. Just give us your honest and straightforward

6 answer. That's the best answer. So with that, I'm going to

7 begin with the general voir dire questions, so if you'd get

8 your cards ready.

9 Now, this trial is expected to last four to five days, at

10 least that's what the lawyers tell me. Four days this week and

11 a possibility of one into next week. Is there any juror who

12 cannot serve on this jury for that period of time?

13 Now, you're probably thinking: But what about jury

14 deliberations? We don't know how long a jury will be back in

15 the jury room deliberating, and it's improper for us to ask you

16 how long or direct you how long you should deliberate. That's

17 completely up to the jury. The only thing I can estimate is

18 your actual trial time. And at this point in time, my best

19 guesstimate is, the trial will be lasting until Thursday of

20 this week and then begin deliberations, or Monday and then

21 begin deliberations.

22 Is there any juror who cannot be here for the anticipated

23 duration of the trial? And if so, would you please hold up

2 4 your card?

25 THE CLERK: Juror Numbers 2 -- you can put your card 19

USA v. Harris, 7/20/15 (Vair Dire)

1 down as soon as I call your number -- 15, 24, 30, 34, 36, 39,

2 and 46. I think I called 15 already.

3 THE COURT: Fifty-nine?

4 THE CLERK: Fifteen.

5 THE COURT: You did call 15.

6 Now, you don't get off quite that easy. I need to ask

7 some follow-up questions. So, again, I'll begin with the first

8 juror, and that is, Juror Number 2, again, if you want to keep

9 your voice up, Juror Number 2, could you give us a brief

10 summary of why you could not serve for that period of time?

11 VENIREPERSON: My parents are in their mid-80s, and I

12 have a plane ticket on Monday to go back and help them

13 relocate, in Indiana.

14 THE COURT: Is there anyone else who could consist

15 them in relocating?

16 VENIREPERSON: No.

17 THE COURT: All right. Thank you, sir.

18 Follow-up questions by the government?

19 MS. BECKER: No, thank you.

20 THE COURT: Follow-up questions by the defense?

21 MS. GIVENS: None, thank you.

22 THE COURT: Next is Juror Number 15.

23 VENIREPERSON: I'm fine this week. I have a business

24 trip that I can't change next week. If deliberations go over,

25 that will be a problem. 20

USA v. Harris, 7/20/15 (Vair Dire)

1 THE COURT: And when is your business trip expected

2 to begin?

3 VENIREPERSON: Sorry?

4 THE COURT: When do you need to leave?

5 VENIREPERSON: I need to leave Tuesday morning.

6 THE COURT: Now, if you were not excused -- first of

7 all, what type of meeting is this?

8 VENIREPERSON: I have a major project groundbreaking

9 in Phoenix, Arizona, that I have to host.

10 THE COURT: Is there anyone else that you're working

11 on this project with?

12 VENIREPERSON: I have other people working on it, but

13 I'm the sponsor of the project.

14 THE COURT: And if the Court didn't grant your

15 request to be excused, what would be the consequences to you

16 personally?

17 VENIREPERSON: To me personally, I would have someone

18 else do it. But that is not -- that's not customary.

19 THE COURT: So it's more customer courtesy?

20 VENIREPERSON: I'm sorry?

21 THE COURT: Is it more of a customer courtesy?

22 VENIREPERSON: Pardon?

23 THE COURT: Is it more of a -- are you trying to

24 please your customers by being present?

25 VENIREPERSON: No. This is a project that I sponsor. 21

USA v. Harris, 7/20/15 (Vair Dire)

1 THE COURT: Thank you.

2 Follow-up questions first by the defense this time?

3 MS. GIVENS: No follow-up questions.

4 THE COURT: Follow-up questions by the government?

5 MS. BECKER: No, thank you.

6 THE COURT: Next is Juror 24.

7 Juror 24, nature of your hardship?

8 VENIREPERSON: It's probably not really important. I

9 had something already planned that I've paid money for. But if

10 I need to stay and change it, I can change it.

11 THE COURT: Okay. All right. Thank you.

12 Follow-up question by the government first?

13 MS. BECKER: No, thank you.

14 THE COURT: By the defense?

15 MS. GIVENS: None, thank you.

16 THE COURT: Thank you, Juror Number 24.

17 Next is 30?

18 VENIREPERSON: I'm actually going to be fine this

19 week, but it's next week that I'll be traveling to a conference

20 that starts on the 26th. That's my travel date.

21 THE COURT: Keep your voice up some. I can't hear

22 you.

23 VENIREPERSON: The 26th is when I'm leaving for a

24 conference, but this week I'm fine.

25 THE COURT: The twenty-sixth is what day? 22

USA v. Harris, 7/20/15 (Vair Dire)

1 THE CLERK: Sunday.

2 THE COURT: How critical is your attendance at this

3 conference?

4 VENIREPERSON: Fair. It's an educational conference,

5 so I could change my travel plans, if needed.

6 THE COURT: Would your not attending that conference

7 impact you financially?

8 VENIREPERSON: No.

9 THE COURT: Would it compromise your job or your job

10 performance?

11 VENIREPERSON: No.

12 THE COURT: All right. Thank you, Juror Number 30.

13 Follow-up question by the defense first?

14 MS. GIVENS: None, thank you.

15 THE COURT: By the government?

16 MS. BECKER: No, thank you.

17 THE COURT: Next is Juror Number 34.

18 VENIREPERSON: I have a hardship that I have a job

19 that I can't afford to miss. And my transportation is

20 it's -- I can't get here, because I live in Everett. So it

21 would be very hard for me to get here, and I can't afford to

22 miss any work.

23 THE COURT: So it's a financial hardship for you?

24 VENIREPERSON: Financial hardship and transportation.

25 I know transportation is not the problem but -- it's not your 23

USA v. Harris, 7/20/15 (Vair Dire)

1 guys' problem, but financial.

2 THE COURT: Do you have any other means of support,

3 other than that place of employment?

4 VENIREPERSON: No.

5 THE COURT: All right. Thank you.

6 Follow-up questions by the government?

7 MS. BECKER: No, thank you.

8 THE COURT: By the defense?

9 MS. GIVENS: No, thank you.

10 THE COURT: Next is Juror 36.

11 VENIREPERSON: I've been out of work for the last

12 five months. I'm actively looking for work right now. I have

13 interview scheduled for Wednesday. So I don't know how long

14 this is scheduled to be. I expect more interviews this week

15 and next week.

16 THE COURT: And your interview, is that this

1 7 Wednesday?

18 VENIREPERSON: Yes.

19 THE COURT: What time is the interview scheduled?

20 VENIREPERSON: 10:00.

21 THE COURT: All right. Thank you, Juror Number 36.

22 Follow-up questions by the defense first?

23 MS. GIVENS: None, thank you.

24 THE COURT: For the government?

25 MS. BECKER: No, thank you. 24

USA v. Harris, 7/20/15 (Vair Dire)

1 THE COURT: Next is Juror Number 39.

2 VENIREPERSON: I'm leaving to just for this week

3 I'd be fine through Friday, but I can't be here Monday, because

4 I have to travel to South America. I need to establish a pen

5 pal system for my school. And so the ticket is pretty

6 expensive. I would have to postpone that.

7 THE COURT: Have you already purchased those tickets,

8 sir?

9 VENIREPERSON: Yes, I did.

10 THE COURT: Would you be reimbursed for those tickets

11 if you did not go?

12 VENIREPERSON: Part. I have to fly through Los

13 Angeles. And that trip from Los Angeles to Colombia, it would

14 be non-refundable, but not the one from Seattle to Los Angeles.

15 THE COURT: Is there any other person that could go

16 in your stead?

17 VENIREPERSON: No.

18 THE COURT: All right. Thank you, Juror Number 39.

19 Follow-up questions by the government?

20 MS. BECKER: No, thank you.

21 THE COURT: By the defense?

22 MS. GIVENS: None, thank you.

23 THE COURT: And last is Juror Number 46.

24 VENIREPERSON: I am leaving on vacation on Saturday,

25 so this week I'm fine. Saturday I'm gone. 25

USA v. Harris, 7/20/15 (Vair Dire)

1 THE COURT: And does that travel involve airlines?

2 VENIREPERSON: No.

3 THE COURT: Is it local vacation?

4 VENIREPERSON: No.

5 THE COURT: And are you traveling by yourself or with

6 anyone else?

7 VENIREPERSON: No, with people.

8 THE COURT: Is this something that can be

9 rescheduled, if necessary?

10 VENIREPERSON: No.

11 THE COURT: Follow-up questions by the defense?

12 MS. GIVENS: Nothing, thank you.

13 THE COURT: By the government?

14 MS. BECKER: No, thank you.

15 THE COURT: All right. Members of the jury, what I'm

16 going to do now is, I'm going to confer with the lawyers in

17 what we call sidebar. A sidebar means that I will go to the

18 side, and the lawyers will come to the side. And we'll go over

19 the issues that have been raised by you for hardship. I'll

20 make a ruling. The reason I do that is so that if you're not

21 going to be connected to this case, there's no sense in having

22 you go through the whole voir dire process. I'll make those

23 determinations now, again, with my promise not to waste

24 anyone's time.

25 Counsel? 26

USA v. Harris, 7/20/15 (Vair Dire)

1 And while we're taking these sidebar conferences, members

2 of the jury, please feel free to stand and stretch. You can

3 talk about anything, but just not about anything that I've

4 talked about or anything to do with this case.

5 (Sidebar)

6 THE COURT: Counsel, this will always be the

7 position. That way, the jury can't see what you're saying to

8 me.

9 So I'll go through all the jurors. First is Juror

10 Number 2. He's the one with the parents in the 80s, and he has

11 to help them relocate.

12 Any objection to that juror being excused?

13 MS. BECKER: No.

14 MS. GIVENS: No.

15 THE COURT: Juror Number 2 is excused.

16 Juror Number 15, they're okay this week but not next week.

17 He's the one with the major project.

18 Any objection to Juror 15 being excused?

19 MS. GIVENS: No.

20 MS. BECKER: No.

21 THE COURT: Let's go one at a time so we can make

22 sure we get an accurate record.

23 MS. BECKER: No.

24 MS. GIVENS: No.

25 THE COURT: Juror Number 15 is excused. 27

USA v. Harris, 7/20/15 (Vair Dire)

1 Juror 24 indicated that she could change her plans, so I

2 believe that we should keep Juror Number 24. She hasn't

3 confirmed there's a sufficient basis to be excused.

4 Counsel for the government?

5 MS. BECKER: Agreed.

6 THE COURT: Counsel for the defense?

7 MS. GIVENS: I think she can be excused. She has

8 paid plans as well. Even though they can be changed, they're

9 not unique from the other people, especially Number 2. So I

10 would say she can be excused.

11 THE COURT: She didn't indicate what it was for,

12 though.

13 MS. GIVENS: She has paid plans. That's my position.

14 I think she should be excused too. If we lost everybody, it

15 would not be a problem.

16 THE COURT: Okay. It's noted, but I'm going to keep

17 her at this point in time.

18 Juror Number 30, leaving Sunday for an educational

19 conference, indicated could change but didn't sound very strong

2 0 on it.

21 Position on Juror Number 30?

22 MS. BECKER: We would defer to the Court.

23 MS. GIVENS: I think we should excuse her.

24 THE COURT: Okay. Thirty will be excused.

25 Next is 34. She has a job she can't afford to miss. It's 28

USA v. Harris, 7/20/15 (Vair Dire)

1 a financial hardship. It doesn't sound like she has any other

2 sources of income. It's also a transportation problem.

3 Any objection to 34 being excused?

4 MS. BECKER: No objection.

5 MS. GIVENS: No objection.

6 THE COURT: Thirty-four is excused.

7 Next is 36, has an interview Wednesday at 10:00. Doesn't

8 have a job -- doesn't appear to have a job.

9 Any objection to 36 being excused?

10 MS. GIVENS: No objection.

11 THE COURT: Okay. Thirty-six is excused.

12 Thirty-nine, traveling and gets a partial reimbursement.

13 Any objection to 39 being excused?

14 MS. BECKER: No.

15 MS. GIVENS: No.

16 THE COURT: Thirty-nine is excused.

17 And the last is 46 with a vacation. Any objection to her

18 being excused?

19 MS. BECKER: Not from the government.

20 MS. GIVENS: No objection.

21 THE COURT: Okay.

22 MS. GIVENS: I think we should ask Number 24 what her

23 paid plans are, then, because she seems positioned like the

24 others.

25 THE COURT: Well, looking at it, if this is all the 29

USA v. Harris, 7/20/15 (Vair Dire)

1 cause challenges we have --

2 MS. BECKER: Hardships?

3 THE COURT: hardships that we have at this point,

4 let's keep her for right now. And I'll see how many other

5 jurors that we would lose, and we can revisit her topic later

6 on. But I'll ask follow-up questions about Juror 24.

7 MR. CANTOR: While we're all here, for cause

8 challenges, just to remind us, you want us to raise the cause

9 challenge, then do a sidebar?

10 THE COURT: The only thing that you have to say is:

11 There's a matter I'd like to take up. Don't say: It's a cause

12 challenge. Depending on where we are timing-wise, I may grant

13 your request on the spot to have a sidebar. If somebody is

14 blurting out anything that's going to taint other members of

15 the jury, then we'll take it right away.

16 MS. BECKER: Another question, we're going to take a

17 minute, when we go back, to move our chairs around.

18 When we do individual questions, do you want us to stay

19 close to the podium, or can I move around?

20 THE COURT: No. Stay at the podium.

21 MR. LEUPOLD: We can move our chairs around?

22 THE COURT: Absolutely. Absolutely.

23 MS. GIVENS: We're going to stay at the lecturn.

24 We're going to be on this side of it, and I need to take a

25 couple steps back 30

USA v. Harris, 7/20/15 (Vair Dire)

1 THE COURT: That's fine. That's fine. But my thing

2 is, I don't want people roaming around in the well. That trap

3 door will open on you, and it will come from the bench.

4 MR. CANTOR: There's a DMZ.

5 THE COURT: All right.

6 (End of sidebar)

7 THE COURT: The following jurors will be excused for

8 cause. If I call your number, please raise your card, then

9 you're free to leave this courtroom.

10 Let me explain what I mean by "this courtroom." When

11 you're summoned for jury service, that means for service in the

12 United States District Court for the Western District of

13 Washington in Seattle. There may be other courts that are in

14 need of jurors. I'm not aware of it, but I don't control that.

15 It's outside of my network. The only thing I control is this

16 courtroom.

17 So if you're excused from this court, please report back

18 to the jury room on the first floor. Let them know that you've

19 been excused for cause. They will advise you if you're

20 directed to go to a different courtroom or if you've satisfied

21 your jury obligation. If they tell you you've satisfied your

22 obligation, you're free to go home and do whatever you want to

23 do, and that call is up to you at that point. But you do need

24 to report.

25 So the following are excused for hardship: Juror 31

USA v. Harris, 7/20/15 (Vair Dire)

1 Number 2 -- and you can start to walk out at this point in

2 time, sir, but please leave your card.

3 Next is Juror Number 15. Fifteen, sir, you're excused.

4 Thank you for your service. Next is juror 30. You're excused.

5 Next is 34. Juror 34, you're excused. Juror 36, you're

6 excused. Juror 39, you're excused. And Juror 46, you're

7 excused.

8 Now, Juror 24, I have some more questions to ask of you.

9 What was the nature of what it is that you paid for?

10 VENIREPERSON: It's just a golf tournament. I'm

11 scheduled for Monday and Tuesday of next week.

12 THE COURT: Is this something that you could

13 participate in later on in time?

14 VENIREPERSON: No.

15 THE COURT: What personal impact will that have on

16 you?

17 VENIREPERSON: It was a cost of $200. I believe I

18 can get that back. I'm not positive on that, though.

19 THE COURT: Is there someone that you could call over

20 the lunch hour to see, if you're on jury service, if you could

21 get reimbursed?

22 VENIREPERSON: Yeah.

23 THE COURT: Would you make that call?

24 VENIREPERSON: Sure.

25 THE COURT: Okay. Would you please report back and 32

USA v. Harris, 7/20/15 (Vair Dire)

1 let me know after the break?

2 VENIREPERSON: Yes.

3 THE COURT: And then we may revisit your request for

4 hardship.

5 VENIREPERSON: Okay. Thank you.

6 THE COURT: Thank you, Juror Number 24.

7 Next series of questions, is there any health issue,

8 physical problems, or persistent physical aggravation or other

9 problem that would make it difficult for you to sit as a juror?

10 I'm talking about bad back, migraines, et cetera.

11 Juror Number 30?

12 THE CLERK: Juror Number 20?

13 THE COURT: Oh, 20. Don't trust my eyes.

14 Juror Number 20, could you give us the nature of the

15 aggravation?

16 VENIREPERSON: I was in a car accident, back in 2006,

17 and I've got lower back issues. I can sit, but I can't sit on

18 hard wood benches. So if there's cushions or a cushioned

19 chair, I can probably last a lot longer.

20 THE COURT: Okay. As we speak right now, what's your

21 level of pain?

22 VENIREPERSON: Probably about a five.

23 THE COURT: Okay. Would you feel more comfortable if

24 I had you move right now and have a seat in one of the more

25 comfortable seats up here with the other jurors? 33

USA v. Harris, 7/20/15 (Vair Dire)

1 VENIREPERSON: If I'm not taking someone else's

2 chair, sure.

3 THE COURT: Well, we know where you'll be. Trust me.

4 So if you'd step up at this point in time, that appears to be a

5 reasonable accommodation that we can make.

6 VENIREPERSON: Thank you.

7 THE COURT: Any other juror have any physical

8 aggravation that needs accommodation by the Court? I see no

9 other response.

10 Now, the Court's previously introduced the Assistant

11 United States Attorneys, Erin Becker and Grady Leupold. Does

12 anyone know either of these federal prosecutors?

13 They also introduced two agents that they're working with.

14 Does anyone know or recognize these two agents? I see no

15 response.

16 The Court previously introduced the defendant and his

17 defense attorneys, Jesse Cantor and Kyana Givens. Does anyone

18 know the defendant or his lawyers? I see no response. Anyone

19 know or recognize anyone else seated at defense counsel table?

20 I see no response.

21 In this case, the defendant is accused of distribution of

22 heroin, possession of heroin with intent to distribute,

23 possession of methamphetamine with intent to distribute,

24 possession of a firearm in furtherance of a drug trafficking

25 crime, and felon in possession of a firearm. Is there anything 34

USA v. Harris, 7/20/15 (Vair Dire)

1 about the nature of this case that would cause any prospective

2 juror to start into the trial with any bias or prejudice,

3 either one way or the other?

4 THE CLERK: Juror Numbers 28, 35, 37, 41, and 43.

5 THE COURT: Thank you. You can put your card down.

6 Have any of you seen or heard any television or radio news

7 reports or read anything in the newspapers about this case?

8 I'm not suggesting there have been, but I'm just checking to

9 see if anyone has heard any information like that. No

10 response.

11 I will now have counsel for the government list all of the

12 witnesses that are expected or might be called to testify.

13 Please raise your hand if you believe that you know any of

14 these names. Now, even if it sounds like a name of someone

15 that you might know, out of an abundance of caution, raise your

16 card as counsel is reading the names.

17 Counsel for the government, please proceed.

18 MS. BECKER: Thank you. And my list includes some

19 individuals who might be mentioned, Your Honor.

2 0 THE COURT: Okay.

21 MS. BECKER: Nicholas Bryson, Daniel Miller, Jayce

22 Gutzler, Ciara Laronde, Kevin Wetteland, Mohammad Khatibi,

23 William Bryant, John Dittoe, Russ Kelley, Mark Jordan, Robert

24 Nogueira, Nelson Rivera, James Miller, Trevor Mann, Jordan

25 Brandt, Greg Tomlinson, Erin Penland, Scott Modesitt, Kevin 35

USA v. Harris, 7/20/15 (Vair Dire)

1 McLeod, James Paulsen, Will Hallifax, Brian Docommun, Michael

2 Vickers, Grant Slish, Matt Bruch, Corey Stairs, Josh Peck,

3 David Klein.

4 THE COURT: Does any prospective juror know or

5 recognize any of those names? I see no response.

6 I will now have counsel for the defendant list all of the

7 witnesses that are expected or might be called to testify.

8 MS. GIVENS: Jim Green, Deborah Malcolm.

9 THE COURT: Does anyone know or recognize any of

10 those names? I see no response.

11 Do any of you know anyone who works in the legal system,

12 either as a judge, lawyer, clerk, probation officer, paralegal,

13 et cetera?

14 THE CLERK: Juror Number 3, 5, 11, 6 -- once I call

15 your number, you can put it down -- 9, 17, 18, 21, 25, 27, 35,

16 and 44.

17 THE COURT: Do any of you have any training or work

18 experience in the field of law?

19 THE CLERK: Juror Numbers 5, 10, 11, 18, 21, 27, and

20 4 4 •

21 THE COURT: Are you, close friends, or relatives

22 connected with law enforcement, either federal, state, county,

23 city, or private?

24 THE CLERK: Juror numbers 4, 16, and 38.

25 THE COURT: Have you or has anyone close to you ever 36

USA v. Harris, 7/20/15 (Vair Dire)

1 received any law enforcement training?

2 THE CLERK: Juror Numbers 10, 17, 25, and 38.

3 THE COURT: Have you or anyone close to you ever

4 worked for the Department of Corrections or for a probation

5 office, whether federal, state, or local?

6 THE CLERK: Juror Numbers 9, 10, 42, and 43.

7 THE COURT: Have you served as a juror in a criminal

8 or a civil case or as a member of a grand jury in either a

9 federal or state court?

10 THE CLERK: Juror Numbers 6 and 33.

11 THE COURT: Jurors 6 and 33, have either of you

12 served as the foreperson in that trial?

13 THE CLERK: Juror Number 6.

14 THE COURT: Have any of you ever been a witness

15 before in any court proceeding? I'm not talking about a

16 deposition. I'm referring to a circumstance where you actually

17 came into court, were placed under oath, and testified.

18 THE CLERK: Juror Numbers 5, 17, 26, 35, 38, and 43.

19 THE COURT: Does anyone know any of the other jurors

20 from any contact other than your meeting this morning? Now,

21 you're probably saying: Judge, that's kind of a dumb question.

22 If we're randomly selected from across this jurisdiction, how

23 can we possibly know each other? We've had contacts where

24 people were supervisors, people dated, a lot of other

25 circumstances. Sometimes it's uncomfortable. But nonetheless, 37

USA v. Harris, 7/20/15 (Vair Dire)

1 I always ask that question.

2 Does anyone know anyone that's on the jury, other than

3 your contact this morning?

4 THE CLERK: Juror Numbers 1, 33, 40, and 41.

5 THE COURT: All right. Let's clear this up now.

6 Juror Number 1, who is it that you know?

7 VENIREPERSON: She is a clerk at a store where I

8 shop.

9 THE COURT: And which juror is that?

10 VENIREPERSON: Oh, I'm sorry. I forgot -- that was

11 37.

12 THE COURT: That's the person you were referring to?

13 VENIREPERSON: Yes.

14 THE COURT: And how frequently do you see Juror

15 Number 37?

16 VENIREPERSON: Maybe once, twice a year.

17 THE COURT: Okay. Do you feel if you were selected

18 as a juror, and Juror Number 37 was also in the jury, that

19 you'd have to vote the same way that she did because you've

20 seen her in that capacity in the past?

21 VENIREPERSON: No.

22 THE COURT: Do you feel that you would be able to

23 operate independently as a juror?

24 VENIREPERSON: Yes.

25 THE COURT: Have you had any other contact with this 38

USA v. Harris, 7/20/15 (Vair Dire)

1 other juror, other than just seeing her as a clerk?

2 VENIREPERSON: No.

3 THE COURT: And Juror Number 37, any different

4 answers that you'd have?

5 VENIREPERSON: No.

6 THE COURT: And the other jurors, 40? And Juror

7 Number 40, who was it that you recognize?

8 VENIREPERSON: Kayla Eldredge, I believe I work with

9 her mom. And I've seen her a few times but not on a regular

10 basis or anything.

11 THE COURT: What's your number?

12 VENIREPERSON: Twenty-nine.

13 THE COURT: And Juror 40, if you were on the jury

14 with this other juror, do you feel that you'd be able to

15 operate independently?

16 VENIREPERSON: Yes.

17 THE COURT: Do you feel the fact that you know her

18 mom that you'd feel obligated to keep her daughter happy and

19 vote the same way that she did?

2 0 VENIREPERSON: No.

21 THE COURT: Any reservations about that?

22 VENIREPERSON: No.

23 THE COURT: Juror Number 37, any different answers?

24 VENIREPERSON: It's 29.

25 THE COURT: Twenty-nine, I'm sorry. Any different 39

USA v. Harris, 7/20/15 (Vair Dire)

1 answers?

2 VENIREPERSON: No.

3 THE COURT: Thank you.

4 Juror 41, who is it that you recognize?

5 VENIREPERSON: Number 33.

6 THE COURT: Keep your voice up.

7 VENIREPERSON: Number 33.

8 THE COURT: Okay. And how is it that you recognize

9 Juror 33?

10 VENIREPERSON: I used to nanny his grandchildren.

11 THE COURT: I can't hear you, all the way in the

12 back. You can stand up. That's okay.

13 VENIREPERSON: I nanny his -- I used to nanny his

14 grandchildren.

15 THE COURT: And how long ago was that?

16 VENIREPERSON: Seven to ten years ago. It's been a

17 while.

18 THE COURT: Have you had any contact with Juror 33

19 since then?

20 VENIREPERSON: Yes.

21 THE COURT: And just social contact?

22 VENIREPERSON: Yes.

23 THE COURT: And if you were to serve on the jury at

24 the same time as Juror Number 33, do you feel that you'd have

25 an obligation to vote the same way that he did? 40

USA v. Harris, 7/20/15 (Vair Dire)

1 VENIREPERSON: No.

2 THE COURT: Do you think that you'd be able to serve

3 as an independent juror and think independently, back in the

4 jury room?

5 VENIREPERSON: Yes.

6 THE COURT: Any reservations about that?

7 VENIREPERSON: No.

8 THE COURT: Juror 33, same questions of you.

9 VENIREPERSON: No problem.

10 THE COURT: Okay. Now, counsel for the government,

11 do you have any follow-up questions of any of these jurors?

12 MS. BECKER: No, thank you.

13 THE COURT: Counsel for the defense, any follow-up

14 questions?

15 MS. GIVENS: None, thank you.

16 THE COURT: All right. Thank you, jurors, and thank

17 you for pointing out those past contacts.

18 Next question, have you, your close friends, or relatives

19 ever been a litigant or a party in a court hearing or

20 proceeding?

21 THE CLERK: Juror Numbers 5 and 27 and Juror

22 Number 3 7.

23 THE COURT: Have you, a relative, or a close friend

24 ever been accused, rightly or wrongly, with committing a

25 criminal offense? 41

USA v. Harris, 7/20/15 (Vair Dire)

1 THE CLERK: Juror Number 28, 37, 42, 43. I think I

2 said 37, Juror Number 12.

3 THE COURT: Now, if you answered this question

4 affirmatively, do you believe that the police and/or the

5 prosecution officials conducted themselves improperly in any

6 way? I see no response.

7 Next question, have you ever had an unfavorable experience

8 with a law enforcement officer or a prosecutor? I see no

9 response, so I'll take that that we have a room of perfect

10 drivers.

11 Next question, has anyone, a relative, or close friend

12 been involved in any sort of lawsuit against the federal

13 government? I see no response.

14 Next question, have you, close friends, or family members

15 ever been the victim of a criminal offense?

16 THE CLERK: Juror Number 24 and Juror Number 1.

17 THE COURT: Next question, have you had any

18 experience involving yourself, a member of your family, or any

19 close friend that relates to the use or possession of illegal

20 drugs or narcotics?

21 THE CLERK: Juror Numbers 12, 20, 22, 23, 28, 33, 35,

22 37, 41, and 43.

23 And a juror has a question.

24 VENIREPERSON: Can you repeated the question, please?

25 THE COURT: Certainly. Have you had any experience 42

USA v. Harris, 7/20/15 (Vair Dire)

1 involving yourself, any member of your family, or any close

2 friend that relates to the use or possession of illegal drugs

3 or narcotics?

4 THE CLERK: Juror Numbers 19, 21, 25, 27, 33, 42, 12,

5 and 2 0.

6 THE COURT: Next question, do you have any strong

7 feelings about the use of illegal drugs, at least to the degree

8 that it would impact your ability to be a fair and impartial

9 juror in a case where the defendant is charged with a drug

10 offense? Now, that's a lot of words. I'll read that one

11 again. Do you have strong feelings about the use of illegal

12 drugs, at least to the degree that it would impact your ability

13 to be a fair and impartial juror in a case where the defendant

14 is charged with a drug offense? Now, the question is two

15 questions, actually. It's, one, do you have strong feelings?

16 And if you do have the strong feelings, would they affect your

17 ability to be a fair and impartial juror? Okay? Now, that's

18 the question you're answering.

19 THE CLERK: Juror Numbers 20, 21, 28, 41, and 45.

20 THE COURT: Do you or any of your close friends or

21 relatives belong to or support any organizations that advocate

22 changes in the drug laws? I see no response.

23 Do you have strong feelings about

24 MS. GIVENS: Excuse me, Your Honor. There's a late

25 number. 43

USA v. Harris, 7/20/15 (Vair Dire)

1 THE CLERK: Juror Number 18.

2 THE COURT: I'm sorry. Nineteen?

3 THE CLERK: Juror Number 18.

4 THE COURT: Thank you.

5 Do you have strong feelings about the criminal laws

6 punishing the sale of illegal drugs, other than marijuana?

7 THE CLERK: Juror Numbers 11, 19, 21, 20, 25, 44, and

8 45.

9 THE COURT: Have you or any of your close friends or

10 relatives had to deal with problems related to drug use or drug

11 addiction? I'm limiting the term "drugs" to controlled

12 substances.

13 THE CLERK: Juror Numbers 10, 20, 17, 19, 22, 25,

14 28 -- I'm sorry -- 27 and 28, 33, 35, 41, 42, 43, and 45.

15 And we have a question, Your Honor.

16 VENIREPERSON: Can you repeat the question, please?

17 THE COURT: Absolutely. Have you or any of your

18 close friends or relatives had to deal with problems related to

19 drug use or drug addiction? I'm limiting the term "drugs" to

20 controlled substances.

21 THE CLERK: Juror Number 12 and Juror Number 26.

22 THE COURT: Next question --

23 THE CLERK: And we have another question, Your Honor.

24 THE COURT: Yes, sir? And your number is, sir?

25 VENIREPERSON: Thirty-five. So is that a repeat 44

USA v. Harris, 7/20/15 (Vair Dire)

1 are we voting again, or does that include the first?

2 THE COURT: This is a separate question.

3 THE CLERK: You repeated it, and I think we added a

4 couple people.

5 THE COURT: That was the same question but just more

6 people responded to it.

7 VENIREPERSON: Okay.

8 THE COURT: Next question, do you have any special

9 experience or training dealing with the treatment of drug abuse

10 or addiction?

11 THE CLERK: Juror Numbers 19, 26, 33, and 35.

12 THE COURT: Have any of you ever reported a suspected

13 drug transaction to a law enforcement officer?

14 THE CLERK: Juror Numbers 17, 27, 37, and 43.

15 THE COURT: Does any juror have strong feelings about

16 the use or possession of firearms?

17 THE CLERK: Juror Numbers 19, 25, 26, 27, 21, 24, 23,

18 and 45. I'm sorry, and Juror Number 33.

19 THE COURT: Now, if you answered "yes" to the last

20 question, are your feelings about the use or possession of

21 firearms so strong that they would impact your ability to be a

22 fair and impartial juror? I see no response.

23 Does any juror have special training in the use of

24 firearms? I see no response.

25 Do you own firearms? 45

USA v. Harris, 7/20/15 (Vair Dire)

1 THE CLERK: Juror Numbers 3, 8, 12, 17, 27, 28, 33,

2 35, 40, and 43.

3 THE COURT: Do you have a concealed weapons permit?

4 THE CLERK: Juror Number 3, 12, 17, 27, and 43.

5 THE COURT: Have you or anyone close to you been

6 injured by a firearm? And that applies to everybody. Have you

7 or anyone close to you been injured by a firearm?

8 THE CLERK: Juror Number 16 and Juror Number 38 and

9 Juror Number 9.

10 THE COURT: Have you or has anyone close to you been

11 threatened by a person wielding a firearm?

12 THE CLERK: Juror Numbers 1, 16, 19, 25, 33, 37, 38,

13 42, and 43.

14 THE COURT: Has any member of the jury been a member

15 of any organization that advocates the use of or restriction on

16 the use of firearms?

17 THE CLERK: Juror Number 17 and 18.

18 THE COURT: Are any of you familiar with the laws and

19 regulations regarding firearms?

20 THE CLERK: Juror Numbers 12, 8, 10, 17, 27, 38, 40,

21 43. And Juror Number 3 has a question.

22 VENIREPERSON: Can you just repeat the question?

23 THE COURT: Absolutely. Are any of you familiar with

24 the laws and regulations regarding firearms?

25 THE CLERK: Juror Number 3 is added. 46

USA v. Harris, 7/20/15 (Vair Dire)

1 THE COURT: Next question: Do you have any

2 opposition to the laws that prohibit convicted felons from

3 possessing firearms and ammunition? I see no response.

4 Do any of you have any moral, religious, or philosophical

5 beliefs that would prevent you from returning a verdict against

6 another person in a criminal case? I see no response.

7 As a juror in a criminal case, your obligation would be to

8 listen to the evidence and from that determine the facts

9 according to the law as given to you by the Court. You must

10 follow the Court's instructions on the law even if you disagree

11 with them. Is there anyone who would be unable or unwilling to

12 follow the Court's instructions if you thought the law was

13 unwise or wrong?

14 THE CLERK: Juror Number 19.

15 THE COURT: You'll be instructed that the defendant

16 is presumed to be innocent until proven guilty, and the burden

17 is upon the government to prove the defendant guilty beyond a

18 reasonable doubt.

19 Is there anyone among you who has a quarrel with these

20 principles of law? I see no response.

21 Can you think of any reason that would prevent you from

22 being able to render a fair and impartial verdict in this case?

23 I see no response.

24 Ladies and gentlemen of the jury, I'm going to let you

25 stand and stretch at this point in time. You can't go anyplace 47

USA v. Harris, 7/20/15 (Vair Dire)

1 or talk about the case, but you can stand and stretch.

2 All right. The rule of thumb that I apply when I let you

3 have stretch breaks is, when I stop hearing things pop, I think

4 that you've stretched enough. So please be seated.

5 We're going to begin. Counsel has 45 minutes for the

6 government. We're going to start now, and she'll be able to go

7 from 11:45 until noon and then break. I'll apologize if we

8 have to interrupt counsel's flow. But nonetheless, I want to

9 get back on track to the extent that we can.

10 Counsel, your time begins now.

11 MS. BECKER: Thank you.

12 Are you comfortable with me here, Your Honor, or would you

13 like me to move?

14 THE COURT: You're fine where you were, counsel, as

15 long as everyone can hear you.

16 And again, cup your hand to your ear and raise your hand

17 if you can't hear. And also, keep your voices up.

18 MS. BECKER: Good morning. I know many of you are

19 sleepy, but it is still morning. Good morning.

20 How many of you, when you got your juror summons, said:

21 Oh, this is really exciting, I get to go to federal court and

22 be a juror? There's always one or two.

23 Thank you, Juror Number 18. What was exciting for you?

24 VENIREPERSON: I've always wanted -- I've never had

25 the opportunity to serve on a jury before, get to see what the 48

USA v. Harris, 7/20/15 (Vair Dire)

1 system is like.

2 MS. BECKER: Want to see what it's like to be a

3 juror. Anybody else happy to get their juror summons?

4 All right. So I'm expecting to see 40 or so cards go up

5 when I say, who, when they got their juror summons, said: Oh,

6 no, I got summoned for jury duty, maybe again?

7 All right. Juror Number 5, why was that?

8 VENIREPERSON: Just inconvenience and especially

9 traveling from Bellingham every day.

10 MS. BECKER: Okay. And I saw some other cards.

11 Juror Number 20, what was your reaction?

12 VENIREPERSON: I had mixed emotions. I have been

13 dismissed, or I'm not sure what the proper terminology is, but

14 I've asked for time away for five times because of different

15 vacations, so I thought this was my opportunity. I better take

16 it before you just said: No, you can't go on your next trip

17 that you have planned.

18 MS. BECKER: Okay. And Juror Number 40?

19 VENIREPERSON: Just inconvenience of traveling in

20 Seattle. I hate traveling to the city.

21 MS. BECKER: Where are you traveling from?

22 VENIREPERSON: Just Auburn.

23 MS. BECKER: Okay. So a variety of reasons that's

24 inconvenient to your life.

25 And the reason I ask is kind of to get us started. You 49

USA v. Harris, 7/20/15 (Vair Dire)

1 see how this process goes. I'm going to be asking you some

2 general questions. You're going to raise your card, and I'm

3 going to call on some of you.

4 And here's some things that you need to know. One is,

5 this feels a little bit like a talk show, and that's fine.

6 It's not Springer; okay? So we raise our card, and we wait to

7 get called on, and we speak one at a time because we have a

8 court reporter. And I know many of you don't love public

9 speaking. Really, it's limited to this morning. Just be loud

10 so that everybody in the courtroom, the court reporter and your

11 fellow jurors, can hear you. I also might have you respond to

12 what other jurors are commenting on, so you see how that goes.

13 The purpose of this process is for us to learn a little

14 bit about you and for us to find out is this the right jury for

15 you to sit on. And so it's important that we get a chance to

16 talk to as many of you as possible. And as we get deeper into

17 our 45 minutes, and we're paying attention, if we haven't seen

18 you raise your card and volunteer an answer, you might get

19 called on, so keep that in mind.

20 Now, a number of you raised your hands about having

21 opinions about guns and opinions about drugs. And we're here

22 on charges -- you heard them -- that involve guns and involve

23 drugs. So that's what I want to spend most of my time talking

24 about.

25 So who here has strong opinions about guns? There we go. 50

USA v. Harris, 7/20/15 (Vair Dire)

1 There was a group of you raised your hand.

2 Can you just tell me a little bit about what some of your

3 thoughts are about guns and gun charges? I think Juror 21 was

4 the first card I saw over here. Just tell me what your

5 thoughts are.

6 VENIREPERSON: I have liberal leanings when it comes

7 to guns and gun control.

8 MS. BECKER: Tell me more what you mean by "liberal

9 leanings."

10 VENIREPERSON: I am from Texas, and everyone I know

11 has guns, and they're very adamant out about guns. And I feel

12 like guns are a big problem in this country.

13 MS. BECKER: So everyone has guns, but you feel like

14 guns are a big problem?

15 VENIREPERSON: Yes.

16 MS. BECKER: All right. Because?

17 VENIREPERSON: I think -- shootings and they just --

18 I think we should have more gun control in society.

19 MS. BECKER: Okay. So by your characterization of

20 "liberal," you mean kind of "left" liberal?

21 VENIREPERSON: Yes.

22 THE COURT: Juror Number 24, what are your thoughts?

23 VENIREPERSON: I think the laws for gun control right

24 now aren't strict enough. I think too many people get guns

25 that shouldn't be allowed to have them, especially when it 51

USA v. Harris, 7/20/15 (Vair Dire)

1 comes to anything that -- I mean, a small gun -- I mean, why do

2 people have, you know, assault rifles and that kind of stuff?

3 So I think that the laws need to be stricter on gun control.

4 MS. BECKER: Okay. Who else agrees with Juror

5 Number 21 and Juror 24, at least strong feelings in that

6 regard? So 33, 32, 18, 19, and 25. How about -- and 26. And

7 I should have looked over here, 4 and 5.

8 Juror Number 4, can you tell us a little bit more? Do you

9 just generally agree, or do you have some additional thoughts?

10 VENIREPERSON: Basically the same opinions, that

11 there would be -- other countries that don't have access to

12 guns as we do seem to have less problems with shootings.

13 MS. BECKER: And how about Juror Number 25?

14 VENIREPERSON: I would agree with some of the

15 sentiment earlier just around it's too easy to get a gun,

16 and that just leads to issues in society.

17 MS. BECKER: Other people had strong opinions but

18 maybe are different opinions.

19 So who has an opinion about guns that are not kind of what

20 you've already heard from Jurors 25, 24, 21?

21 Juror Number 33, tell me about your thoughts.

22 VENIREPERSON: Concealed guns just scare the crap out

23 of me. You can't do anything about them, and that's very

24 frustrating.

25 MS. BECKER: Scares you because you don't know that 52

USA v. Harris, 7/20/15 (Vair Dire)

1 the person has a gun?

2 VENIREPERSON: They can pull it out anytime, do

3 anything they want with it.

4 THE COURT: What's your number there?

5 MS. BECKER: Thirty-three.

6 THE COURT: Thank you.

7 MS. BECKER: Juror Number 19?

8 VENIREPERSON: I would prefer to live in a world

9 with out guns. I don't think even law enforcement should be

10 able to use them.

11 MS. BECKER: Okay. People who feel strongly about

12 having guns -- there are a lot of gun owners, a number of have

13 you concealed weapons permits -- who feels differently than

14 some of the expressions that we've heard already about guns?

15 Juror Number 17? Thank you.

16 VENIREPERSON: Personally, I don't think guns are the

17 problem. The criminals are the problem. So I do agree with

18 stronger gun control in making it so that criminals can't get

19 guns. But the responsible gun owners and those people that

20 have concealed carry permits aren't the problem.

21 MS. BECKER: All right. Anybody share Juror

22 Number 17's view or want to expand on that? I'm going to do

23 Juror Number 12 and then 37, 38, and 40.

24 So Juror 12?

25 VENIREPERSON: I agree with her. I know lots of gun 53

USA v. Harris, 7/20/15 (Vair Dire)

1 owners, and they're the most law-abiding people I know.

2 MS. BECKER: And I bet you're going to need to speak

3 up louder if I come back to you.

4 Juror Number 37?

5 VENIREPERSON: Nothing really to add, I just agree

6 with that. I think the criminals are going to get the guns if

7 they want to.

8 MS. BECKER: Okay. Juror 38?

9 VENIREPERSON: My husband is into hunting and

10 everything, and gun regulations have really messed him up with

11 that. As for small firearms, they're only -- should only be

12 purchased by people who have the right credentials, shall we

13 say. People who get guns illegally will get guns illegally

14 forever.

15 MS. BECKER: Okay. Juror Number 40 and then I'm

16 going to do 8 and 24.

17 Forty?

18 VENIREPERSON: Pretty much what they said. I'm an

19 actual hunter as well, and I think that everybody that I know

20 who has guns are responsible with them. And I do believe, too,

21 that if criminals want to get guns, they'll get them, no matter

22 what.

23 MS. BECKER: Do you think that we should be doing

24 anything socially to change that, to make things easier on

25 hunters, harder on criminals? Any changes in any direction? 54

USA v. Harris, 7/20/15 (Vair Dire)

1 VENIREPERSON: I think we sometimes have a hard time

2 enforcing the rules that we already have on the books, so just

3 creating more doesn't necessarily solve the problem.

4 MS. BECKER: All right. Juror Number 8?

5 VENIREPERSON: I believe that in this type of

6 environment, gun owners are going to be responsible with them.

7 Those who are not going to be responsible with their guns are

8 going to still try and procure guns anyways, whether they're

9 going to be responsible or not. Training environments,

10 government, military, they do not have the same type of mass

11 shootings like we see with irresponsible gun owners. I don't

12 think there's anything we can do to change that by adding new

13 laws.

14 MS. BECKER: So you're not advocating for a change in

15 the law either way.

16 All right. And then Juror 24, I thought you indicated you

17 had some thoughts on this. Did I misinterpret?

18 VENIREPERSON: Yeah, I think -- well, I mean, just

19 there's been cases recently where somebody's gotten a gun and

20 then they didn't go through -- they were saying they shouldn't

21 have had one to start with.

22 MS. BECKER: Sure.

23 VENIREPERSON: And the sale of guns from private

24 owners to other people and they don't even have to go through

25 any kind of background check. 55

USA v. Harris, 7/20/15 (Vair Dire)

1 MS. BECKER: So private gun sales aren't being

2 adequately regulated in your view, or do you think it just

3 isn't effective? Do you think there should be a change?

4 VENIREPERSON: The impression I've gotten is that

5 there really isn't much in place for that. I mean, private gun

6 shows, people can go in and buy guns without really having

7 much --

8 MS. BECKER: Oversight.

9 VENIREPERSON: -- oversight.

10 MS. BECKER: And in your view, is that a problem?

11 VENIREPERSON: Yes.

12 MS. BECKER: Other thoughts on guns laws? We're

13 happy with them? We're unhappy with them? We'd like them

14 moved in one direction? We like guns? Anybody have a view

15 that hasn't been expressed?

16 All right. Let's talk, if we can -- we only have a couple

17 minutes before our lunch break. We're going to shift to the

18 other big topic, drugs. I saw a lot of people raise their

19 hands with strong feelings about drugs. I saw a lot of people

20 raise their hands that they've been affected by drugs.

21 So let's hear some of your opinions. And it can be how

22 you've been affected by drugs, or it can be you're unhappy with

23 our drug laws, in any direction. And let's leave marijuana off

24 the table, because we seem to have decided that here in

25 Washington, so let's let that one go for now. So we're talking 56

USA v. Harris, 7/20/15 (Vair Dire)

1 about other drugs, what you think.

2 Juror Number 11, thanks for volunteering.

3 VENIREPERSON: I have concerns about the mandatory

4 minimum sentences for drug offenses.

5 MS. BECKER: Okay. What are your concerns about

6 that?

7 VENIREPERSON: They seem kind of arbitrary and

8 counterproductive, results in people being in jail that

9 shouldn't necessarily be, for long periods of time.

10 MS. BECKER: And are you referencing something that's

11 about the law about the disparity between crack cocaine and

12 powder cocaine or just mandatory minimums, generally?

13 VENIREPERSON: Just mandatory minimums, more

14 generally.

15 MS. BECKER: Okay. You're unhappy with them?

16 VENIREPERSON: Yes.

17 MS. BECKER: Does that change your view on whether

18 or affect your view on whether people who are committing the

19 crimes should or should not be prosecuted?

2 0 VENIREPERSON: No.

21 MS. BECKER: You think we should still have those

22 laws?

23 VENIREPERSON: Yes.

24 MS. BECKER: Let's start with a question, since I was

25 a little bit broad -- and I'll come to you in a minute, Juror 57

USA v. Harris, 7/20/15 (Vair Dire)

1 Number 25 -- is there anyone who thinks drugs -- again, we're

2 not talking about marijuana -- drugs should be legal? You

3 should be able to go to the same store that sells marijuana now

4 and buy cocaine.

5 VENIREPERSON: I would not state it that way about

6 legality. But I think that the illegality of drugs leads to

7 more problems because of the black market, the crimes that are

8 committed in order to support the black market. I think there

9 are a lot of social costs. And it's not that I think, you

10 know, children should be able to walk in the supermarket, or

11 adults even. I think there should be a distribution system

12 that puts it more into, perhaps, a healthcare and educational

13 system so that we can take care of people who have problems

14 without sending them underground to commit crimes.

15 MS. BECKER: So I just want to be clear, though, that

16 talking about putting it, like, the way that marijuana is being

17 sold in Washington today, do you think that that kind of system

18 you would favor or more strict?

19 VENIREPERSON: No, more strict.

20 MS. BECKER: Okay. People who agree with Juror 44 or

21 have similar views? I saw a card over here, so I'll do 19 and

22 then 18 and then 21.

23 VENIREPERSON: I'm definitely a supporter of

24 decriminalization. And I work with a social service agency

25 that takes a harm reduction approach. 58

USA v. Harris, 7/20/15 (Vair Dire)

1 MS. BECKER: Are you the one who's at DESC?

2 VENIREPERSON: Yes.

3 MS. BECKER: Okay. And decriminalization and

4 legalization, I think, are two different ideas. Are you

5 intentionally picking decriminalization, meaning reducing

6 enforcement, not so much changing the law? That's correct?

7 VENIREPERSON: Yes.

8 MS. BECKER: All right. Juror Number 18?

9 VENIREPERSON: I basically agree with the other two

10 people that the prohibition is not -- doesn't necessarily work

11 very well; that it leads to lots of other problems, and that

12 there needs to be a different approach. If people want to take

13 drugs, they'll take drugs. And we need to find a safer

14 mechanism that allows them to do it without at the same time

15 making it widely available.

16 MS. BECKER: And then I think Juror Number 21 is who

17 I was going to come back to.

18 VENIREPERSON: And I agree with them. I don't like

19 it so much as a criminal issue as much as a healthcare issue.

20 MS. BECKER: Do you have any proposals about how you

21 would address that as a healthcare issue?

22 VENIREPERSON: More social programs, I guess. Or,

23 like, in Vancouver, they have centers where you can go get

24 clean needles, and that reduces healthcare problems.

25 THE COURT: Keep your voices up. You're starting to 59

USA v. Harris, 7/20/15 (Vair Dire)

1 trail off at the end so we can't really hear you up here.

2 MS. BECKER: Anybody else who shares the views of

3 I'm sure I'm going to get the numbers wrong -- but 18, 19, 21

4 and 44, I think?

5 Oh, Juror Number 5, I'm sorry. Tell us about your view.

6 VENIREPERSON: Just similar, decriminalization and

7 more focus on the health side.

8 MS. BECKER: And I see 9 sort of maybe holding up his

9 card. And 1 and 3 are just kind of same idea or something new?

10 VENIREPERSON: Same.

11 MS. BECKER: Same idea from 9, 1 and 3 and 17 and 26.

12 Okay. Is this a good place to take the break, Your Honor?

13 THE COURT: It is, counsel.

14 Members of the jury, we're going to take our noon break

15 from now until 1:30. Again, when you come back, do not come

16 back to this courtroom. Please return back to the first floor,

17 and you will be summoned and come back up as a group. The

18 reason we ask you not to come back is, oftentimes, the parties

19 have witnesses or people they need to confer with or generally

20 may be talking about things in the hallway. If you're coming

21 up one at a time, you may randomly hear something that you're

22 not supposed to hear or shouldn't hear until it's introduced in

23 the course of a trial. So for that reason, wait until you're

24 summoned to come up. And once we pick a jury, we'll take care

25 of that in a different way. Go to the main jury room, is what 60

USA v. Harris, 7/20/15 (Vair Dire)

1 I'm referring to.

2 So with that, everyone have a good lunch, and see you

3 ready to go at 1:30.

4 MS. BECKER: Victoria, there's a question about

5 whether they leave their cards here?

6 THE CLERK: Yes. Yes, please.

7 (Prospective jurors exit the courtroom)

8 (Recess)

9 THE COURT: Counsel, one of the lawyers has brought

10 to the in-court deputy's attention that one of you believes

11 that you think that you might know one of the jurors?

12 MS. BECKER: Your Honor, I think we just wanted to

13 make a record with respect to two jurors, actually. I brought

14 to the attention of defense counsel during the break that I

15 recognized Juror Number 6. Perhaps the Court does as well.

16 Juror Number 6, whose name I did not know before and only know

17 now because it's --

18 THE COURT: Juror Number 6?

19 MS. BECKER: Juror Number 6 .

20 THE COURT: You said him? That's Linda.

21 MS. BECKER: It's a her.

22 THE COURT: Okay.

23 MS. BECKER: Juror Number 6 has been -- I think the

24 correct title might be something like a facilities manager for

25 King County for a long time. Her office was on the same 61

USA v. Harris, 7/20/15 (Vair Dire)

1 floor -- I was formerly a King County Deputy Prosecuting

2 Attorney. Her office was on the same floor as mine for the

3 last three years, so I have seen her frequently. She stands

4 out as one of the only women who routinely walks around

5 carrying a hammer. So I recognize her and -- but I've never

6 had a conversation with her. I didn't know her name. It

7 appears, in the glances that I've changed with her, that

8 perhaps she recognizes me. But again, it would be that

9 context. I brought that to counsel's attention.

10 During that conversation, counsel brought to my attention

11 that Ms. Givens knows Juror Number 19; that Juror Number 19 is

12 a lifelong resident of the same neighborhood as Ms. Givens'

13 parents?

14 MS. GIVENS: Her parents are.

15 MS. BECKER: Her parents live on the same street as

16 Ms. Givens' parents and have for a lengthy period of time. It

17 sounds like and she can elaborate rate, but it sounds like

18 Ms. Givens has known her for a long time. I bring it up not

19 only because of that, but that Juror Number 19 didn't identify

20 herself as knowing anybody on the defense team. So I was

21 hoping that a little more questioning on that -- I was thinking

22 would be appropriate.

23 MS. GIVENS: I think it's one of those situations,

24 obviously, where my parents have been local here for a long

25 time, but their friends don't always know -- the kids don't 62

USA v. Harris, 7/20/15 (Vair Dire)

1 know each other. So I recognize her. I think she's probably

2 being honest that she does not recognize me, and she's not

3 making the association. But I thought the Court and counsel

4 should know.

5 THE COURT: All right, counsel, I'll do preliminary

6 inquiry of both these prospective jurors.

7 MS. BECKER: Thank you.

8 THE COURT: Okay. Bring them in.

9 THE CLERK: Do you want me to bring in those two

10 jurors alone?

11 THE COURT: No, bring in everybody.

12 (Prospective jurors enter the courtroom)

13 THE COURT: Juror Number 24, my in-court deputy has

14 just advised me you are able to serve; is that correct?

15 VENIREPERSON: Yes. I'd rather not but I can.

16 THE COURT: I appreciate that. It's not always

17 convenient, but it's a matter of duty. Thank you so much.

18 Sir, your juror number? Five?

19 VENIREPERSON: Your Honor, I apologize. During the

20 lunch hour, I was reminded I do have a conflict a week from

21 this Wednesday, which is a hearing before the Department of

22 Revenue, an ALJ.

23 THE COURT: And what type of hearing?

24 VENIREPERSON: It's an appeal of an excise tax.

25 THE COURT: And in what capacity do you serve? 63

USA v. Harris, 7/20/15 (Vair Dire)

1 VENIREPERSON: I'm the attorney for the appellant.

2 THE COURT: Is there any opportunity for a

3 continuance, if necessary?

4 VENIREPERSON: I believe if the federal court judge

5 asks for one, I could get one, yes.

6 THE COURT: Sometimes people think we have more power

7 than we do. But I'll tell you what, at this point in time, I

8 appreciate you alerting everyone.

9 Does anyone have any follow-up questions? Counsel for the

10 government?

11 MS. BECKER: No, thank you.

12 THE COURT: For the defense?

13 MS. GIVENS: No, thank you.

14 THE COURT: Thank you, sir, for bringing that to the

15 Court's attention, and we'll see how things progress.

16 VENIREPERSON: Thank you, Your Honor.

17 THE COURT: Now, before I go any further, any jurors

18 have any additional information or any thoughts that came to

19 mind, in response to any question that was posed this morning,

20 that was an awakening over the lunch hour with a little bit of

21 sun and exercise?

22 All right. Then let's go with the two additional

23 follow-up questions.

24 Juror Number 6, you worked at King County; is that

25 correct? 64

USA v. Harris, 7/20/15 (Vair Dire)

1 VENIREPERSON: Yes.

2 THE COURT: Do you recognize anyone in the courtroom?

3 VENIREPERSON: Not -- no.

4 THE COURT: Do you recognize any of the lawyers in

5 the courtroom, either for the government or for the defense?

6 VENIREPERSON: No.

7 THE COURT: Okay. Follow-up by the government?

8 MS. BECKER: No. Thank you, Your Honor.

9 THE COURT: Follow-up by the defense?

10 MS. GIVENS: No, thank you.

11 THE COURT: And Juror Number 19 -- Juror 19, do you

12 recognize any of the lawyers in the courtroom today?

13 VENIREPERSON: No, I don't.

14 THE COURT: Have you had any prior contact with any

15 of the lawyers that would be of any significance?

16 VENIREPERSON: No, I haven't.

17 THE COURT: All right. Then any follow-up questions

18 by the defense?

19 MS. GIVENS: None, thank you.

20 THE COURT: By the government?

21 MS. BECKER: No, thank you.

22 THE COURT: All right. Then with that, we'll resume

23 with counsel for the government. You have 30 minutes remaining

24 on your opportunity to examine the jurors. And your time

25 begins now. 65

USA v. Harris, 7/20/15 (Vair Dire)

1 MS. BECKER: Thank you.

2 Before the lunch break, we were discussing people's views

3 and attitudes towards the drug laws. And specifically, we

4 had I had asked about people who thought that our drug laws

5 should be changed such that more drugs should be legal.

6 Anybody feel differently than the group that I was talking

7 with before lunch? They're happy with the state of our drug

8 laws, they think that they should be changed so that more drugs

9 should be criminalized, penalties should be higher, or they're

10 just happy with the state of the law as it is. Everybody

11 thinks that -- there we go.

12 Juror Number 25?

13 VENIREPERSON: Yeah, I guess my feeling with regards

14 to the drug laws is they should be stricter and harsher. From

15 my own extended family experience, I've seen the negative

16 aspects that drugs can have and how they can break up marriages

17 and, you know, cause problems. And I'm certainly in favor of

18 having stricter consequences and stricter rules around drug

19 use.

20 MS. BECKER: It sounds like that's informed by

21 personal experience with people who are using?

22 VENIREPERSON: Yes.

23 MS. BECKER: All right. Other people who agree with

24 Juror Number 25, maybe not on the specifics but feel that our

25 drug laws either are great the way they or are decent the way 66

USA v. Harris, 7/20/15 (Vair Dire)

1 they are or should be made more punitive in some way? I saw a

2 handful of people before.

3 Juror Number 35?

4 VENIREPERSON: Well, I guess that whatever we have in

5 place now doesn't seem to be working very well, but I'm not

6 sure what the answer is, whether it's more or less.

7 MS. BECKER: All right. Juror Number 37?

8 VENIREPERSON: I don't think they should be less, but

9 I'm not -- I really don't have an answer.

10 MS. BECKER: All right. Juror Number 33?

11 VENIREPERSON: I think the addition of some

12 rehabilitation aspects of the law needs to be revisited in

13 terms of being more consequential to the jurisdiction. Because

14 I think if you don't get rehabilitated, you're going to be

15 status quo or even go down deeper. So to me, that's important.

16 I've had personal family experience with that.

17 MS. BECKER: And is your concern that the law should

18 be more strict after people have had -- have already had a few

19 convictions? Or is your view with rehabilitation that the law

20 should be more focused on rehabilitating somebody?

21 VENIREPERSON: Both. Because I think there should be

22 some level of tolerance in terms of first-time offenders. And

23 then if they follow up with some sort of treatment and they

24 keep on relapsing, then you've got to take another step. It

25 might be incarceration along with treatment. It might be just 67

USA v. Harris, 7/20/15 (Vair Dire)

1 treatment.

2 MS. BECKER: All right. I'm sorry if you weren't

3 finished. I didn't mean to cut you off.

4 VENIREPERSON: No.

5 MS. BECKER: All right. Anybody else have thoughts

6 about the state of our drug laws? I've been asking really

7 general questions about drug laws without talking about any

8 particulars, other than we're still not going to talk about

9 marijuana.

10 How do you feel about the way the law treats drug users

11 versus drug dealers? Should that be different? Should drug

12 users and drug dealers be treated differently? I've heard a

13 lot of people indicating that they think our drug laws should

14 be more lenient or should be less enforced. Does that apply

15 just to drug users, or does that include drug dealers? Do

16 people have thoughts about those questions?

17 Juror Number 25?

18 VENIREPERSON: Yeah. Just to build on what I said a

19 minute ago, and I'm glad you made that distinction, I feel they

20 should be harsher -- the rules should be harsher in regards to

21 drug dealers. For drug users, I think that some of the -- some

22 of the comments around rehabilitation and, you know, dealing

23 with addiction, I think there need to be more targeted programs

24 towards that. But certainly, from the dealer side and

25 distribution side, I think that that's something that needs to 68

USA v. Harris, 7/20/15 (Vair Dire)

1 be dealt with more harshly.

2 MS. BECKER: I see Juror Number 27 nodding his head.

3 What are your thoughts?

4 VENIREPERSON: I agree there's a big distinction

5 between those that use and those that deal. I have a very low

6 tolerance for those that deal, and the consequences should be

7 extremely harsh for those that deal. With respect to any laws,

8 I would go more to the regulations around it and the

9 rehabilitation, instead of just strictly making a law. I think

10 there's more that needs to go into place with respect to the

11 processes.

12 I have one question, as a follow-up of something, a

13 question you had asked earlier around the guns. I don't know

14 if you want to take that now or --

15 MS. BECKER: I probably can't answer your question.

16 But if you voice it, we can see if we can address it somehow.

17 VENIREPERSON: We talked earlier about gun use and

18 our thoughts about the laws around guns. At one point, I

19 thought you mentioned something about felons or convicted

20 criminals that had guns or had possession of guns. That

21 question wasn't followed up, so I wasn't sure if that was

22 separate.

23 MS. BECKER: We can come back to that topic, but let

24 me finish on the topic I'm on.

25 Who else has thoughts, other than what we've heard from 69

USA v. Harris, 7/20/15 (Vair Dire)

1 Juror Number 25 and Juror 27? And remember that we keep track

2 if we haven't heard from you before. So if you've got

3 thoughts, this is the time.

4 Juror 10?

5 VENIREPERSON: Whether it's black market or free

6 market, I don't think you have distributors if you don't have a

7 market. So adult to adult, I don't know that penalties should

8 be different for dealers versus users. The exception I would

9 make for kids. Dealing to kids, I would be for much harsher

10 penalties on dealers.

11 MS. BECKER: Other people have thoughts on these

12 issues? Should we be treating dealers and users differently?

13 Juror Number l?

14 VENIREPERSON: I would agree with that. I think

15 there need to be different standards or different penalties for

16 underage users versus adult users. And there should be harsher

17 penalties for dealers who are targeting underage users.

18 MS. BECKER: What about just generally dealers versus

19 users, should they be treated the same?

20 VENIREPERSON: I'm still on the fence with that one,

21 to be honest.

22 MS. BECKER: And then I saw Juror Number 9? Yes?

23 VENIREPERSON: Yes, I think when you're dealing

24 with -- if you're dealing with underage children, then, you

25 know, stiff penalties for the dealers. But if it's just -- if 70

USA v. Harris, 7/20/15 (Vair Dire)

1 it's adults, then it should be their choice, and we shouldn't

2 be using laws and things like that to dictate moral judgments.

3 MS. BECKER: How about Juror 6 and 7, I don't think

4 I've heard from either of you. I'm sorry if I have.

5 What are your thoughts, Juror Number 6?

6 VENIREPERSON: Well, I think the whole situation is

7 very complex from use, you know, distribution, the addiction.

8 And so I think you'd have to look at it case by case versus

9 I don't have a broad generalization. I think that's it;

10 because it's so complex society-wise.

11 MS. BECKER: What about Juror Number 7? And 13 and

12 14, I'm coming to you soon.

13 VENIREPERSON: I guess I feel a little bit similarly,

14 that there should be harsher penalties for dealers with

15 underage kids. I'm not entirely sure, in general, how I feel

16 about a lot of these things, because I don't feel like I have

17 enough background knowledge or have done enough research into

18 some of the effects to know where I stand, particularly.

19 MS. BECKER: Okay. Juror 13?

20 VENIREPERSON: I don't know how harsh the policies

21 currently are regarding both of them, so I don't feel

22 comfortable saying whether they should be harsher or less

23 harsh. But I do feel that for a user versus a dealer that a

24 dealer should get a harsher penalty than someone who uses, that

25 dealing is very much a conscious act of, you know, disobeying 71

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1 the law; whereas using, sometimes, you know, it can be tried

2 it, got addicted. You know, it's not always, you know,

3 conscious throughout the whole of using; whereas dealing, I

4 feel, is quite different. And I do feel that some aspect of

5 rehabilitation should certainly be in place, if it isn't

6 already, for people who use.

7 MS. BECKER: What about Juror 14?

8 VENIREPERSON: I think they should both be treated

9 similarly. They're both making choices to do something

10 illegal. So I can't say that a dealer is actively doing

11 something illegal and the user, who knows that the drug is

12 illegal too, is not, at the same time. So he could get himself

13 or herself out of that situation, if he tries.

14 MS. BECKER: All right. Other people in the -- not

15 in the box have comments based on what you've just heard from

16 some of the jurors, 6, 7, 13, 14?

17 Juror 15, you know you're next. Do you have some thoughts

18 about -- are you not Juror 15?

19 VENIREPERSON: Sixteen. Fifteen is not here.

20 MS. BECKER: Sixteen. Fifteen is not here, Juror 16.

21 I can see you looking elsewhere.

22 What are your thoughts about the state of our drug laws,

23 users versus dealers?

24 VENIREPERSON: I think the drug laws are pretty okay.

25 I mean, I do think that dealers should be treated harsher. 72

USA v. Harris, 7/20/15 (Vair Dire)

1 And, you know, like the other gentleman said, it is an

2 addiction. So, I mean, yeah, you might know that it's wrong.

3 But in most people's addicted mind, they don't -- it's not they

4 don't care. They need it. It's something -- so, I mean, they

5 need help. They need to be rehabilitated, but they don't need

6 to be treated as badly as somebody else that's doing it on

7 purpose, that's doing it to make money and preying on people.

8 MS. BECKER: Juror 19 -- I think it's Juror 19 -- I

9 have to come back to you since you work at DESC and have some

10 comments.

11 Are your feelings about decriminalization and harm

12 reduction, do they distinguish between dealer and user? Your

13 feelings, I'm asking about your opinion.

14 VENIREPERSON: You know, I can't make a distinction

15 without placing it in a broader social context. I think

16 dealing is very exploitative. I think it's as exploitative as

17 any number of business practices, though, so I couldn't say

18 within the context of our current legal system.

19 MS. BECKER: Okay. So we've spent some time -- and I

20 do want to loop around to Juror Number 27's comment about guns,

21 so let me follow up on that and then sort of wrap up this part

22 of our discussion.

23 When we were talking about people's opinions about our

24 drug laws generally, does anyone have concerns with the concept

25 that our laws prohibit felons from possessing firearms? Anyone 73

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1 think that that should not be the law?

2 I don't see -- Juror 17?

3 VENIREPERSON: I think it depends on the nature of

4 the crime that the felon was in jail for.

5 MS. BECKER: So which crimes -- where would you draw

6 the distinction?

7 VENIREPERSON: I would say smaller crimes, like, DUI,

8 things like that, I don't see the reason to take away their gun

9 rights. Murder, assault, stuff like that, definitely I see the

10 reason to take them away.

11 MS. BECKER: All right. So right now, the law's

12 distinction is between misdemeanors and felonies. And,

13 actually, some misdemeanor assaultive or domestic violence

14 stuff too prohibits you from possessing a firearm. Do you

15 disagree with that? Or would you -- so right now, it looks at

16 what's the possible penalty, is the state of our law, what's

17 the possible penalty. And if it's over a certain thing, you

18 can't have a gun anymore.

19 It sounds like -- I'm trying to get at, are you agreeing

20 with that? Or do you think that it should be, oh, you know,

21 theft, no matter how big, you shouldn't lose your firearm, but

22 an assault, no matter how small, you should? Do you understand

23 my question?

24 VENIREPERSON: Kind of. No, I think there's a degree

25 of which the -- and I can't really explain it. 74

USA v. Harris, 7/20/15 (Vair Dire)

1 MS. BECKER: Sure.

2 VENIREPERSON: But there's a degree in which I don't

3 think warrants losing your privilege to own a firearm or use

4 fire arms.

5 MS. BECKER: Okay. And then in a similar question,

6 you heard that one of the charges is called possession of a

7 firearm in furtherance of a drug trafficking crime, probably

8 not something that you hear about every day. It's not

9 something that you see on or CSI. But the idea

10 is that if you are committing a drug trafficking crime, if you

11 are engaged in drug dealing, you can't use a gun to help you.

12 Anyone feel uncomfortable with that being a law?

13 VENIREPERSON: Sorry. I need more clarification.

14 There were two counts with respect to the guns. One was felon

15 in possession, and one was in possession of a drug crime.

16 MS. BECKER: Possession of a firearm in furtherance

17 of a drug trafficking crime. The first question I asked was

18 about felon in possession.

19 Does that answer your question?

20 VENIREPERSON: Yes.

21 MS. BECKER: Okay. So the idea is that there's a

22 separate crime that we're looking at here called possession of

23 a firearm in furtherance of a drug trafficking felony.

24 Does anyone hear that and think, you know, that's not

25 something that should be a crime? 75

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1 VENIREPERSON: I'm not saying yes, but I have a

2 question.

3 MS. BECKER: Okay.

4 VENIREPERSON: When you say it's being used in

5 addition to drug trafficking, is it, like, you just had --

6 like, they just had it on their person while they were doing

7 drug trafficking or, like, it was actually used to hurt people?

8 MS. BECKER: So if you're on the jury, you'll hear an

9 instruction about what exactly it means. But you can gather

10 something from the name that the possession has to be in

11 furtherance of the drug trafficking crime. So the government

12 would have to prove that there's some connection between the

13 drug dealing and the gun.

14 So anyone think, you know

15 THE COURT: Just one second. For the record, that's

16 Juror Number 17 that just spoke.

17 MS. BECKER: Thank you.

18 Anyone think, you know what, I don't favor that law? That

19 shouldn't be illegal. And I'm not seeing any responses, but I

20 do see Juror 27 sort of thinking about raising his card.

21 VENIREPERSON: I just want to make sure with respect

22 to trafficking -- I'm sure that would probably come out in the

23 jury instructions. But when you talk about trafficking, are we

24 talking interstate, in the state?

25 MS. BECKER: We're talking about any kind of drug 76

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1 dealing. Anyone concerned about that?

2 All right. So we've spent most of the morning and a

3 little bit of time just now talking about what we think the law

4 should be, all right? Our personal opinions, if we got to

5 write the laws, what would we write? And the real question for

6 you as jurors is not at all: Do you like this law? Would you

7 do something different? Right? If you want a law to be a

8 certain way, you go to the ballot box -- I think you all have

9 ballots in your mailbox right now -- and you vote. And there's

10 a different time that you get to vote, as a citizen of the

11 United States, and that's in a jury room. And what you're

12 voting on in a jury room is an entirely different question. It

13 is not: Do I like this law? Should we have it? Is it

14 effective? Should the government be spending its resources in

15 this way? It's -- the question you'll be voting on is: Did

16 the government prove beyond a reasonable doubt that the

17 defendant committed the crime? Whether I like the offense

18 being a crime or not, did the defendant commit the crime?

19 That's all that you're being asked to do as a juror, not as a

20 citizen, generally, but as a juror.

21 Anyone uncomfortable with that? Think, you know, I don't

22 like the laws. I can't vote to find somebody committed the

23 crime, because I don't like the law. I'm not seeing anybody

24 with concerns like that.

25 Does anyone have any questions about their ability to make 77

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1 a decision even if they think that the law is not a good

2 choice, is not a good social choice?

3 A few people raised their cards when the judge asked:

4 When you first heard the charges, did you have any initial

5 biases or concerns? So I want to follow up with those people.

6 Starting with -- and you're going to remind me if I miss

7 somebody Juror Number 19 -- not Juror Number 19, excuse

8 me -- Juror Number 37, starting in no particular order.

9 You raised your card in response to a question that

10 Judge Jones asked about whether you thought you had any biases,

11 once you just heard the nature of the charges. Can you tell me

12 more about why you raised your card?

13 THE COURT: Counsel, you need to read the number.

14 Even though the juror holds it up, you need to read the number.

15 MS. BECKER: It was Juror 37.

16 VENIREPERSON: Can you repeat the question that I'm

17 answering on this? Because I raised my hand several times on

18 things.

19 MS. BECKER: Absolutely. Let me get it back.

20 VENIREPERSON: The basic answer probably won't

21 change, but the specific might.

22 MS. BECKER: Whether you had any strong feelings

23 about the use of illegal drugs, at least to the degree that it

24 would impact your ability to be a fair and impartial juror.

25 Did you raise your hand on that one? 78

USA v. Harris, 7/20/15 (Vair Dire)

1 VENIREPERSON: I did, probably.

2 MS. BECKER: Can you tell us about your experience?

3 VENIREPERSON: Well, I don't know that -- mine

4 probably wouldn't be so much illegal use of drugs but have to

5 do with more the --

6 MS. BECKER: I'm sorry. I had the wrong question. I

7 apologize. Let me read the question again. So I'm going to

8 call on a few people that answered this.

9 So the question that the judge asked was: In this case,

10 the defendant is accused of -- and then he listed the crimes

11 distribution of heroin, possession of heroin with intent to

12 distribute, possession of methamphetamine with intent to

13 distribute, possession of a firearm in furtherance of a drug

14 trafficking crime, and felon in possession of a firearm. Is

15 there anything about the nature of the case that would cause

16 any prospective juror to start into the trial with any bias or

17 prejudice, either one way or another? And five people raised

18 their hands. That's 28, 35, 37, 41, and 43.

19 VENIREPERSON: I'll just say my answer. I'm not

20 sure -- my thinking is getting kind of all convoluted on the

21 subject. My son-in-law, before he met our family, was

22 convicted of several felonies. They did involve meth

23 distribution. They did involve firearms. And so there's kind

24 of a history there.

25 MS. BECKER: Okay. And do you think that there's 79

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1 something about that history -- has he been a good son-in-law?

2 VENIREPERSON: Yes, he has. He's a wonderful

3 son-in-law.

4 MS. BECKER: Is there anything about his experience

5 that leads you to think that this is not the right trial for

6 you, that you would not be able to be fair and open-minded and

7 evaluate the evidence both fairly to the government and fairly

8 to the defendant?

9 VENIREPERSON: The most important thing I probably

10 would say is that most of the people that went through

11 rehabilitation programs with him, him and maybe one other have

12 stayed clean and sober, law-abiding. Most everybody has kind

13 of reverted --

14 MS. BECKER: Relapsed?

15 VENIREPERSON: -- whatever word you want to use.

16 MS. BECKER: So anything about that knowledge of your

17 history that would make you think that this is not -- I can't

18 be a fair juror?

19 VENIREPERSON: I don't know. I guess it would depend

20 on whatever the specifics were at the time, to be honest. I

21 just felt I had to bring that part up.

22 MS. BECKER: Thank you.

23 Juror 35?

24 VENIREPERSON: Yes. I had a similar experience with

25 our daughter that resulted in addiction, which was expensive 80

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1 and emotional. And -- but our judge did clarify, I think, the

2 situation. And I would say I probably have a bias, but I think

3 I can make a fair decision based on the facts.

4 MS. BECKER: Okay. All right. Is there anything

5 that would lead you to make the decision based on something

6 other than the evidence? You're going to hear witnesses.

7 You're going to be given documents. You're going to evaluate

8 the credibility of people who testify. Is there something that

9 would make you make your decision based on something other than

10 what you're going to hear in the courtroom?

11 VENIREPERSON: No, I don't think so.

12 THE COURT: All right. Juror 28, you raised your

13 card on that question as well. Can you tell us more about

14 that?

15 VENIREPERSON: I'm kind of rethinking my response to

16 that because my experiences have been with use of the drug not,

1 7 with selling of it.

18 THE COURT: Sir, I can't hear what you're saying.

19 VENIREPERSON: I have two cousins that specifically

20 took methamphetamine and messed up their life pretty good. I

21 watched them go down the path. When I hear that drug, I get

22 really upset. But I'm also a scientist, so I can see things

23 from a mindful and fair way and make a decision without

24 being --

25 THE COURT: Sir, your voice is trailing off again. 81

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1 You're talking to counsel, and that's good. But we need to

2 hear you all the way up here.

3 VENIREPERSON: Okay. I think -- I feel like, having

4 heard the question a few times and thinking about it, that I

5 can base my decisions that I make in a logical way, and not an

6 emotional way. And so I'm kind of rethinking my response to

7 that.

8 MS. BECKER: All right. So you think you can listen

9 to the evidence and make your decision based on the evidence --

10 VENIREPERSON: Absolutely, absolutely.

11 MS. BECKER: -- and not based on your sort of

12 revulsion towards what methamphetamine did to your family?

13 VENIREPERSON: Yeah.

14 MS. BECKER: Juror Number 41? Where are you? Thank

15 you.

16 VENIREPERSON: I just very recently, in April, lost

17 my cousin to a heroin overdose, so just hearing the word makes

18 me emotional. So I definitely feel it would affect my ability.

19 MS. BECKER: Okay. Just hard for you to listen to it

20 at all?

21 VENIREPERSON: (Nods head affirmatively)

22 MS. BECKER: Okay. Juror Number 43?

23 VENIREPERSON: I had the same response, initially,

24 just because I know too many people who their lives have been

25 turned upside down, where they're in jail currently, turned to 82

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1 prostitution, have died from overdose of heroin, very close

2 personal family friends.

3 THE COURT: We can't hear you. You need to keep your

4 voice up. I'm sorry.

5 VENIREPERSON: I'll try.

6 THE COURT: It's okay if you stand, if that will help

7 project your voice.

8 VENIREPERSON: It's fine. It's just I got emotional

9 from it. I apologize.

10 I do think I could be fair. I think -- that was just my

11 first gut response.

12 MS. BECKER: Okay. But this is going to be hard to

13 listen to, but you think you can listen to it and decide, you

14 know, whether the defendant committed the offense based on the

15 evidence and based on nothing else?

16 VENIREPERSON: Right.

17 MS. BECKER: All right. And then Juror 19, you

18 raised your card in relation to a question that the judge asked

19 about whether there was anyone who would be unable or unwilling

20 to follow the Court's instructions if you thought the law was

21 unwise or wrong.

22 Can you tell us more about that, please?

23 VENIREPERSON: I couldn't collude with a law that I

24 thought was harmful. That being said, I don't know the laws

25 very well, so it would totally depend on the law and the way it 83

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1 was being applied.

2 MS. BECKER: So it sounds like you can't promise this

3 court that when it gives you the law that you will decide the

4 case based on whether the evidence fits within the definition

5 of the law.

6 VENIREPERSON: I do see those two things as being

7 very different.

8 MS. BECKER: Which two things as being very

9 different?

10 VENIREPERSON: As being able to decide whether the

11 evidence fits within the framework of the law and the law in

12 the framework of the narrative context.

13 MS. BECKER: So if you felt like the evidence -- if

14 the government put on evidence that proved to you beyond a

15 reasonable doubt that an individual committed the offense that

16 they're charged with, but you thought the offense was unwise

17 that it was unwise for the government to criminalize it or

18 unwise for the government to spend its resources prosecuting

19 that particular individual, it sounds like you would have a

20 hard time returning a guilty verdict?

21 VENIREPERSON: That would pose a conflict for me,

22 yes, conflict of interest.

23 MS. BECKER: Right. So you're not promising the

24 Court that you could do that? You're not able to promise the

25 Court that? 84

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1 VENIREPERSON: I suppose that's true.

2 MS. BECKER: Okay. I'm going to shift gears for a

3 few minutes.

4 I have about six minutes left?

5 THE COURT: You've used 25 minutes and 15 seconds,

6 counsel.

7 MS. BECKER: Oh, I have more time than I thought.

8 I've used 25 minutes this afternoon?

9 THE COURT: Yes. You have about four minutes now.

10 MS. BECKER: Okay. Thank you.

11 Just a quick question, can anybody tell me what a drug

12 dealer looks like? I see a lot of smirking. Anyone tell me

13 what a drug user looks like?

14 Can anybody tell me what -- well, why not? I see a lot of

15 smirking and shaking of heads. Why not? Let's hear from

16 somebody I haven't talked to before.

17 Juror Number 22?

18 VENIREPERSON: So I work in a high school. And after

19 summer, we had a student come back who was a known user. We

20 all said: You look great. We congratulated her on what

21 appeared to be her getting clean. And then ten days later, she

22 was in rehab for heroin. So to our eyes -- and we see them all

23 the time -- she looked great. But, in fact, she was worse off

24 than at the beginning of the summer.

25 MS. BECKER: Anybody else have an answer different 85

USA v. Harris, 7/20/15 (Vair Dire)

1 than this sort of idea that's being communicated by Juror

2 Number 22?

3 Juror 31?

4 VENIREPERSON: I don't think there's any boundaries

5 to who is or isn't using drugs.

6 MS. BECKER: What does that mean, there's no

7 boundaries?

8 VENIREPERSON: It could be anybody. Could be

9 anybody.

10 MS. BECKER: Is anybody going to automatically

11 disbelieve a witness who has used drugs or has delivered drugs?

12 Automatically, this is not somebody I can believe. I'm not

13 hearing any --

14 VENIREPERSON: I'm not going to say I wouldn't

15 believe them, but I might be more inclined to be cautious about

16 accepting what they said.

17 MS. BECKER: Okay. Last couple of minutes I have,

18 the judge has talked to you about not going and doing your own

19 investigation. Can anybody not promise that you are not going

20 to go down to the scenes that you hear about and check out,

21 what does it look like? Is anybody going to do that? Is

22 anybody going to go on the internet and do some research and

23 say: I don't know very much about methamphetamine, and I want

24 to know more about its effect on people who use it? Is anyone

25 unable to promise that they will not do that? 86

USA v. Harris, 7/20/15 (Vair Dire)

1 How about going and looking up in the dictionary? There's

2 this word I heard in court. I don't know what it means. I'm

3 going to go look it up in the dictionary. You can't do that.

4 Anyone have a problem with that?

5 Anyone going to go home and tell their spouse all about

6 everything they heard in court today, or their significant

7 other or their child or their best friend?

8 Going to post it on Facebook? Anyone going to post on

9 Facebook tonight about this awesome experience this morning in

10 federal district court and everything you've heard?

11 THE COURT: Two minutes, counsel.

12 MS. BECKER: Not hearing any responses to that. If I

13 could have just a second?

14 Thank you very much.

15 THE COURT: Before we begin the opportunity for the

16 defense to begin their voir dire examination, why don't we take

17 a stretch break. Please stand.

18 MS. GIVENS: Your Honor, while we're stretching, can

19 counsel approach and address a matter?

20 THE COURT: Yes.

21 (Sidebar)

22 MS. GIVENS: Juror Number 41 I think should be

23 excused for cause. If she can't hear the word "heroin" without

24 tearing up, then I don't think that she can be fair and

25 impartial for this particular case. The death, she said, was 87

USA v. Harris, 7/20/15 (Vair Dire)

1 recent and involved heroin, and she was tearing up. She's in

2 the back left corner.

3 THE COURT: Yes.

4 MS. BECKER: We agree.

5 THE COURT: Okay. Juror Number 41?

6 MS. GIVENS: Correct.

7 MS. BECKER: We would also make a motion with respect

8 to --

9 THE COURT: Just one second.

10 Juror Number 41, cause challenge is granted by the Court.

11 MS. BECKER: With respect to Juror 19, the government

12 would challenge Juror 19 for cause. Juror 19 indicated, both

13 in the Court's general questioning and by follow-up

14 questioning, that she would be unable to follow a law that she

15 found was unwise. I think she made it abundantly clear that

16 she thought the drug laws, while she didn't know them in

17 detail, were unwise; and that she worked with a group where she

18 thought that the approach should be harm reduction.

19 THE COURT: Any objection, counsel?

20 MS. GIVENS: I would leave it to the discretion of

21 the Court. I'm not convinced that she should be released for

22 cause.

23 THE COURT: Do you want to ask her follow-up

24 questions?

25 MS. GIVENS: I can, yeah. 88

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1 THE COURT: Okay. Let's do that, but I'll take it

2 under advisement. But you'll need to renew it at the

3 appropriate time.

4 (End of sidebar)

5 THE COURT: We've taken a matter up at sidebar with

6 counsel.

7 And Juror Number 41, I'm going to excuse you at this point

8 in time from your jury service. Again, please report to the

9 jury room on the first floor, and let them know that you've

10 been excused from this courtroom. And again, my sincere

11 appreciation for your commitment to serve as a juror in this

12 matter, but you are excused.

13 Now, ladies and gentlemen of the jury, we'll begin with

14 the opportunity by the defense for their voir dire examination.

15 Counsel, your time, 45 minutes, begins now.

16 MS. GIVENS: Good afternoon.

17 Now, again, my name is Kyana Givens. I'm representing

18 Mr. Harris.

19 And voir dire is all about talking about the truth. So

20 I'm going to ask you all this question: When you walked into

21 the courtroom and you saw and were introduced to this defense

22 counsel table, how many of you looked over here and thought:

23 Gosh, Mr. Harris looks good cloaked in the presumption of

24 innocence? Anybody have that thought? How many of you looked

25 over here and thought: I wonder what he did? Juror Number 45, 89

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1 Juror Number 12, Juror Number 33, Juror Number 17, Juror

2 Number 42, Juror Number 18, Juror Number 20. This is a natural

3 response, and I appreciate all those numbers that I just called

4 out. I appreciate your honesty. Because to walk into a

5 courtroom for jury service and be introduced to somebody, it is

6 a very natural response to wonder what they did.

7 And I mentioned the presumption of innocence. Who knows

8 what that is? Juror Number 5, Juror Number 1, Juror Number 37,

9 22, 21, 38, 40, 23, 24, 33, 9, 10, 11, 13, 7, 6, 3, 20, 19, 18,

10 16 -- and we're still doing the exercise when I call your

11 number, pull it down -- 25, 26, 27, 47, 44 and 43 and 32.

12 Did I miss anybody?

13 So here's my question, and it's not to embarrass or put

14 anybody on the spot. But if you understand what the

15 presumption of innocence is, how come you didn't immediately

16 assign it to Mr. Harris when you came in?

17 Juror Number 3?

18 VENIREPERSON: Because I didn't know who was the

19 defendant, so I didn't know who to assume anything about.

20 MS. GIVENS: Juror Number 44?

21 VENIREPERSON: I didn't even know which table was the

22 Defendant's table.

23 MS. GIVENS: Juror Number 8?

24 VENIREPERSON: I'm with her. This is my first time

25 here, so I have no idea at this point. 90

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1 MS. GIVENS: Juror Number 1, did I see your number?

2 VENIREPERSON: Same answer. I didn't know which side

3 was which.

4 MS. GIVENS: Juror Number 21?

5 VENIREPERSON: Same.

6 MS. GIVENS: Okay. I assume everybody pretty much

7 was still very confused.

8 Juror Number 27?

9 VENIREPERSON: I thought the agent was the defendant.

10 MS. GIVENS: You thought the agent was the defendant.

11 VENIREPERSON: The bald guy.

12 MS. GIVENS: You have a bald guy bias; is that what

13 you're telling me?

14 Okay. These are natural, human responses to entering into

15 a courtroom and entering into this experience. And that's what

16 I want to talk to you with my time about, is your natural

1 7 responses.

18 I'll tell you that I live at a particular place where,

19 when you're looking at my house, you're actually looking out at

20 the city. And you can see the lake. And when people stop in

21 front of my house after 8:00, 9:00, the discussion begins to

22 change in my house. And we begin to say: I wonder what

23 they're doing? Late at night, parked in front of our home,

24 looking at an overlook. And inevitably, sometimes we see

25 clouds of smoke coming outside of a car. So I am not different 91

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1 than any of you, which is, I see some people doing something.

2 And without knowing them, I don't leave my house and introduce

3 myself -- usually. I make assumptions about what they're doing

4 at that time of night. Why? Because we're human.

5 And so I want to talk to you and bring up to the surface

6 some of our what we call implicit bias. Who has ever heard of

7 that before? Juror Number 1, 6, 7, 14, 10, 19, 18, 27, 25, 44,

8 and 21.

9 What does it mean to you, Juror Number l?

10 VENIREPERSON: Implicit bias?

11 MS. GIVENS: Yes.

12 VENIREPERSON: It's bias that's not necessarily

13 expressed outwardly but one still holds, and it's expressed

14 through their -- perhaps their actions or reactions.

15 MS. GIVENS: Do you agree? Anybody else who knows

16 the definition?

17 Number 44?

18 VENIREPERSON: I would add that it's often not known

19 to the person who holds the bias. It's unconscious or

20 subconscious, often.

21 MS. GIVENS: Now, I'm about to reveal one of my

22 secrets. When you start nodding your head, I'm probably going

23 to come talk to you.

24 So Juror Number 18, you did a good head nod. Do you agree

25 with that definition? 92

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1 VENIREPERSON: Yes, that implicit biases are usually

2 not consciously known by the person who has them.

3 MS. GIVENS: Anybody else feel that this group has

4 not defined it the way you'd like, you'd like to add something

5 to the definition? We're in agreement?

6 Okay. I'm going to start off now by playing for you a

7 video. Now, we have some screens. All of you who are in the

8 jury box, you'll be able to see it on the screen in front of

9 you. Those of you who are out here in the gallery will have to

10 look at this TV over here.

11 THE COURT: Actually, counsel, instead of doing that,

12 if you're not a member of the jury, if you could stand. And

13 I'll have all members of the jury move over so that we can have

14 everybody as close to the television as possible. And I think

15 that would give us more than enough room, counsel.

16 MS. GIVENS: Yeah, I do believe it does too, because

17 there are approximately 17 people that we need to move on to

18 this side of the room.

19 THE COURT: And once you've had a chance to see it,

20 you can retake the same position.

21 MS. GIVENS: Do you feel like you can see it okay?

22 Do you folks feel like you can see it okay?

23 All right. We're going to play this video and take a look

24 at it together.

25 THE COURT: And I'll remind the jury there are 93

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1 portions that will be

2 MS. GIVENS: Muted.

3 THE COURT: Okay. Thank you.

4 VENIREPERSON: Our screens aren't working.

5 THE CLERK: Do you have it published, counsel?

6 VENIREPERSON: Now it works.

7 (Video recording was played)

8 MS. GIVENS: Thank you. I'm going to have you all

9 who were moved return back to your seats.

10 Juror Number 13, tell me your response to that video.

11 VENIREPERSON: I thought it was shocking. And I

12 thought that -- I questioned whether this was real and also how

13 recent this video was. It didn't seem to me like that should

14 be people's response.

15 MS. GIVENS: Juror Number 5?

16 VENIREPERSON: Similar response. I don't think that

17 would be my response to the situation.

18 MS. GIVENS: You you said you don't think that would

19 have been your response. There was people who called the

20 police, people who helped.

21 Which response?

22 VENIREPERSON: I think I would have questioned each

23 person the same.

24 MS. GIVENS: You would have questioned each person

25 the same. 94

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1 Who else would like to respond to the video? I don't want

2 to hold anyone back that really wants to.

3 Juror Number 16?

4 VENIREPERSON: I'd just like to say that I don't

5 think anybody here can really say how they would have acted.

6 You don't really know until you're put in that position. So, I

7 mean, you can say you would have asked every one of them. You

8 could say you would have called the cops right away or

9 anything. You don't really know until -- you just don't know

10 until you're in a position like that.

11 MS. GIVENS: Juror Number 44?

12 VENIREPERSON: I would just say that there is testing

13 to find out about what a person's implicit biases are so we can

14 know that.

15 MS. GIVENS: Who did you find yourself relating to?

16 VENIREPERSON: I think probably Arlene.

17 MS. GIVENS: Juror Number 32, what was your response

18 to the video? Or describe who you found yourself relating to.

19 VENIREPERSON: I think my response was, I was

20 surprised that it took so long for people to respond to the

21 white young man, in terms of all the tools that he had to pull

22 out to try and take this bike, and people pretty much left him

23 alone. And I was surprised by that. I mean, it wasn't like

24 one tool. It was like, you know, back up the car and pull out

25 everything you can get. And I was surprised. 95

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1 MS. GIVENS: The rotary saw seemed a little much.

2 Anybody else? Juror Number 7?

3 VENIREPERSON: Yeah. This video, I guess, makes a

4 lot of sense to me. There was a guy I knew from high school

5 who in college -- he's a white male and he had the same

6 thing, where he lost the lock -- or the key to his lock, and

7 then he was sawing through it. And then instead of asking him

8 questions, like, people on campus came and helped him out. So

9 I guess from personal experience, I've seen that -- in

10 actuality that things like this do happen.

11 MS. GIVENS: I guess the next Juror Number 27?

12 VENIREPERSON: I think it was correct.

13 MS. GIVENS: What was correct?

14 VENIREPERSON: Well, I mean, that type of bias, that

15 underlies all the profiling that we do as a society. We see

16 it -- I mean, it happens to me constantly. I happen to look

17 very different from what I do in real life. It's something

18 that I've experienced continually. And it's true. I mean, it

19 happens. That implicit bias lies within all of us. And it's

20 actually a defense mechanism. It's not good or bad or

21 anything, but it's created over time from all our senses and

22 experiences. And it exists. You even said it yourself. When

23 you see smoke, you thought something. You're not making a full

24 decision, but there's a signal that goes off.

25 MS. GIVENS: Now, you said you find that happening to 96

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1 you. Do you know at all, what is it that you find yourself

2 being biased around?

3 VENIREPERSON: I'm an attorney. And for years, when

4 I would work at the courthouse, I would go up to presiding to

5 watch. People would come in and out. And I would be

6 continually approached by people to defend them in their case.

7 And I would always laugh and say: I'm not a defense attorney.

8 I'm actually a technology attorney. And they would say: You

9 don't look like that. You look really mean. I need you to

10 represent me. It happens a lot. It happens to this day. It's

11 just the reality.

12 MS. GIVENS: Thank you.

13 Did anybody watch that video, at least the second part

14 that happens in Matlock, and did you find yourself having any

15 kind of physical response to it? Were you disturbed?

16 Offended? Concerned? Anything like that? Juror Number 17,

17 25.

18 Number 16, you can't move. I'm going to -- I want to know

19 if you are in or out on this question. You had a physical

20 response?

21 VENIREPERSON: Yeah, it's cool. I mean, I was always

22 raised to treat everybody the same and everything. And so

23 seeing them treat, you know, people differently, it's -- seeing

24 somebody treat somebody differently, no matter what, always

25 gets me kind of, like, gut reaction, kind of jerk a little bit. 97

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1 MS. GIVENS: I want to follow up with the rest of the

2 numbers, and then I'm going to come back to you.

3 Number 18, Number 25, Number 44, 47. Number 9, was that a

4 yawn?

5 VENIREPERSON: Sorry.

6 MS. GIVENS: Okay. I just want to make sure,

7 number 7 and Number 5.

8 What was the physical response?

9 VENIREPERSON: I don't know how to describe it. Like

10 I said, kind of like a gut reaction. It just makes me mad if

11 not, you know, disgusted in a sense.

12 MS. GIVENS: Thank you.

13 Juror Number 47?

14 VENIREPERSON: Probably more like he said, disgusted,

15 not the fact that the second person was so quickly but that the

16 first one person wasn't; that people just let him go. And then

17 to see such a quick reaction the second time, it just kind of

18 makes you, like, really? So it was that kind of a -- that

19 somebody would just let that crime go the first time.

20 MS. GIVENS: Really quickly, how many people have

21 actually seen that video or seen that TV show before?

22 Number 16, 17, 18, 26, 45, 33, 12, and 13 and Number 21 and

23 Number 38. There was a portion in there where the gentleman

24 said it didn't have anything to do with race at all.

25 Juror in the back corner there, with the fluorescent 98

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1 stripes, what's your juror number? Forty-two. Did you believe

2 him or disbelieve him?

3 VENIREPERSON: No. I think clearly they were --

4 THE COURT: Sir, we can't hear you at all. Keep your

5 voice up.

6 VENIREPERSON: Sorry. I think that -- I don't think

7 it was against race. It might have been. But I would have

8 helped him, back in the day, so --

9 MS. GIVENS: So when he said it had nothing to do

10 with race, you believed him?

11 VENIREPERSON: Yeah.

12 MS. GIVENS: Anybody else agree with Juror Number 42,

13 that you agreed with the observer who said it didn't have

14 anything to do with race? So everybody else pretty much feels

15 like it did have something to do with race?

16 Juror Number 33?

17 VENIREPERSON: I have to say it was -- I was really

18 offended by the whole incident, in terms of showing the video,

19 because it seemed like you were leading me on as to look for

20 the man of color doing, you know, the stealing, in terms of the

21 desired outcome. So I was a little offended, to be honest with

22 you.

23 MS. GIVENS: No. I appreciate and welcome your

24 honesty. And I'm glad you said that, because I want to make

25 sure I understand what you're saying. You were offended that 99

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1 we even showed the video

2 VENIREPERSON: Yes.

3 MS. GIVENS: because you feel like we baited you

4 into thinking about these ideas of racial discrimination?

5 VENIREPERSON: Well, the outcome.

6 MS. GIVENS: The outcome.

7 VENIREPERSON: The outcome being that everybody went

8 after the person of color.

9 MS. GIVENS: Thank you. We appreciate that type of

10 feedback.

11 Who else agrees with Juror Number 33? Juror Number 20,

12 Juror Number 3, Juror Number 5, 12, 13, 22, 24, 40, 38, 37, 35,

13 47, 27, and a maybe right here.

14 VENIREPERSON: Can I make a comment, though, without

15 agreeing or taking a side?

16 MS. GIVENS: Sure.

17 VENIREPERSON: Do you want me to do that after -­

18 MS. GIVENS: No. Go ahead and make your comment.

19 VENIREPERSON: Well, your question was about judging

20 what that man said in the video. So I think it's hard to judge

21 if you don't understand -- I mean, I don't know the guy. I'm

22 just watching the video. So I don't feel -- you know, I don't

23 feel competent to judge his belief system. But, I mean, racism

24 exists in this country, and we see it manifested in different

25 ways. However, I guess I don't -- but I also don't like people 100

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1 judging what they think I'm going to think based on whatever

2 they think of me, my exterior appearance, you know, whatever

3 they're going to judge me by. So I guess I'm -- so I have a

4 hard time -- you know, I don't know what somebody else thinks

5 unless I ask them and, you know, understand, you know, what all

6 the circumstances are and how things are. So perhaps, you

7 know, what this gentleman said, I don't like people making

8 assumptions about me and how I think.

9 MS. GIVENS: Thank you.

10 Juror Number 11?

11 VENIREPERSON: I guess I would say that in some

12 respects it seemed like that the study wasn't really a random

13 scientific study. So to that extent, it could be misleading.

14 But at the same time, the results of it seem to be: This is

15 what's expected. But I think I can see, possibly, what you

16 mean, but there's something sort of inherently misleading about

17 the presentation of the show.

18 MS. GIVENS: Juror Number 3?

19 VENIREPERSON: Yeah, I mean, it was a popular

20 television show used to prove a point -- a potentially

21 scientific point about implicit bias and behavior in

22 individuals. I don't think that either the anchor or whatever

23 you want to call that guy or -- you know, where was that park?

24 You know, like, there was so many outlying factors involved

25 with that that I don't think a popular television show is a 101

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1 really good indicator of -- I understand what it was doing to

2 illustrate, you know, implied [sic] bias. But at the same

3 time, I don't think it was the right approach.

4 MS. GIVENS: Thank you.

5 Juror Number 22?

6 VENIREPERSON: Also with regard to implicit bias, I

7 sort of felt like there was an implicit bias in the filming of

8 this, in that both young men were wearing different clothes

9 that could both bring with them a bias. So it seems like it

10 would have been a fair comparison if they were dressed the

11 same. You couldn't make one judgment over the other.

12 MS. GIVENS: Thank you.

13 Juror I can't see your number in the second row.

14 Number 40, I saw you nodding your head, though. What are you

15 responding to?

16 VENIREPERSON: I just felt, when I was watching the

17 video, that you kind of knew where it was headed, once we

18 started it. I was shocked at kind of the responses, and in the

19 first scenario where it took people so long. They just kind of

20 let everything pass. The variables aren't the same. You're

21 not asking the individuals that were looking at each

22 scenario it wasn't the same person. It was different

23 people. So the factors -- none of the variables were the same

24 to really get a conclusive decision on any of the scenarios.

25 MS. GIVENS: Thank you. 102

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1 Anybody else want to make a comment before I move on?

2 Number 27?

3 VENIREPERSON: To me it was really prejudicial, and

4 there was no really foundation. I wasn't quite sure why we

5 were seeing it. And the editing was horrible. I mean, it took

6 us right to what we needed to see. But, you know, obviously, I

7 don't think we would see that further along in the trial, so I

8 was uncomfortable seeing it here at this stage.

9 MS. GIVENS: Number 19?

10 VENIREPERSON: I'd just like to share that I was

11 thinking the whole time, thank you for bringing this reminder

12 into the courtroom. Clearly, this is something we all need to

13 be reminded of.

14 MS. GIVENS: Thank you.

15 So Juror Number 7 used a word that I think is common to

16 all of us, maybe not right now, but at least other times in our

17 life when we're talking about race, which is "uncomfortable."

18 I don't know about you but -- and this isn't to call out

19 numbers. But just by raise of hand, does this discussion make

20 you uncomfortable?

21 Juror Number -- I should have had it by now -- sixteen?

22 VENIREPERSON: It just makes me uncomfortable that

23 people are still talking about it as a race thing. And it's

24 I don't know. For me, it's, again, I was always raised that

25 there is no difference between race. And everybody seems to be 103

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1 so focused on the fact that you were trying to drag them into

2 it being a race thing. It had nothing to do with that. I

3 mean, there was a female in it too. Nobody's talking about

4 that. They're all talking about how -- just the second guy.

5 It makes me feel uncomfortable that nobody wants to bring that

6 into focus, the other stuff.

7 MS. GIVENS: Juror Number 26?

8 VENIREPERSON: Yes.

9 MS. GIVENS: Tell me what you're thinking about this

10 discussion.

11 VENIREPERSON: I'm glad we're having this discussion.

12 I think it shows the human behavior and our society's way of

13 thinking and viewing things. And I'm glad someone brought up

14 the fact that no one brought up the female character and the

15 fact that she was not wearing the same kind of attire that the

16 gentlemen were also wearing.

17 But I'm a person of color myself, and I have had my own

18 experiences with prejudice and discrimination. And I'm glad

19 we're having this discussion.

20 MS. GIVENS: As you can probably tell, our point is

21 not to say you're glad we were having it or we shouldn't have

22 had it. The point is that we need to bring this type of bias

23 to the surface, right now, today, because it can't wait.

24 Because one of the things that the judge read to you, he said

25 that if selected as a juror, it will be important to reach a 104

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1 verdict without discrimination. This means that race, color,

2 religious beliefs, national origin, sexual preference, or

3 gender of the defendant, any witness, and the lawyers should

4 play no part in your decision.

5 What I would add to that is all of us have feelings and

6 assumptions, perceptions, and fears based on stereotypes, and

7 we may not be consciously aware of them. We played that video

8 so that we could bring those to the surface, whatever your

9 opinion is. Everything is welcome today, but we want to know

10 what it is.

11 There is a question in this case about items, guns, drugs,

12 and other property and who it belongs to. And our concern is

13 that you may treat or may be inclined to treat, because of some

14 unconscious association, one type of witness differently than

15 another type of witness. And that's the reason why we played

16 the video, so we could spur this discussion. Does that make

1 7 sense?

18 I see, Juror Number 21, that you're nodding your head.

19 What are you thinking?

20 VENIREPERSON: I think that makes sense, what you

21 just said. And it's good to talk about it.

22 THE COURT: Could you raise your voice, please?

23 VENIREPERSON: I think it makes sense to bring it up,

24 and it's good to talk about it.

25 MS. GIVENS: Juror Number 35, you said that you felt 105

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1 like Juror Number 33 and that perhaps we shouldn't have played

2 it. Tell me more about what you're thinking.

3 VENIREPERSON: I just didn't think it was necessary.

4 I'm trying to think of the right words here. But I don't think

5 I gained anything out of it. We know what we're dealing with,

6 at least I think I do. And I guess I think it was a really

7 good point that Juror 33 brought up. I'm glad that he did it

8 so we could hear his side of the video. And I agree.

9 MS. GIVENS: Thank you. Thank you for sharing your

10 perspective.

11 I wanted to ask a couple of questions about the general

12 voir dire. There was a question about if you had family or

13 friends who were involved working -- you, yourself, or your

14 family or friends were working in law enforcement.

15 Can you please raise your cards again if you answered

16 affirmatively to that question? Juror Number 3, 4, 9, 10, 38,

17 27, and 16.

18 Juror Number 4, we haven't heard from you very much, so

19 I'm going to open the field to you. I want to know about the

20 person, if it's yourself or someone you know who's in law

21 enforcement.

22 VENIREPERSON: It's my brother, over on the east side

23 of the state. He worked as a deputy sheriff for probably ten

24 years, and he's currently working as a 911 dispatcher.

25 MS. GIVENS: And how close are you and your brother? 106

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1 VENIREPERSON: We Facebook a couple of times a week,

2 talk a couple of times on the phone.

3 MS. GIVENS: Is there anything about your brother's

4 work in law enforcement that you think would interfere with

5 your ability to fairly weigh the evidence brought in this case.

6 VENIREPERSON: Probably not. Only if the law

7 enforcement person was injured or harmed or something like

8 that, that might influence me. But I think by and large, I

9 could be fair.

10 MS. GIVENS: If the law enforcement person was

11 endangered or harmed, that would start to tug at you a little

12 bit?

13 VENIREPERSON: A little bit.

14 MS. GIVENS: Okay. Thank you.

15 Juror Number 9, tell us about your relationship to law

16 enforcement.

17 VENIREPERSON: Actually, I think I misunderstood the

18 question. Because I have sister who's a lawyer, and I was

19 thinking that was what you were referring to. So I don't know,

20 other than a neighbor, somebody in law enforcement. But,

21 certainly, you know, I would feel for them, if they were in

22 danger.

23 MS. GIVENS: What type of law does your sister

24 practice?

25 VENIREPERSON: Corporate law. 107

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1 MS. GIVENS: What did you think about this discussion

2 on race and gender and implicit bias?

3 VENIREPERSON: The video kind of struck me. It -- I

4 didn't like seeing -- you know, it was very predictable in

5 terms -- well, it wasn't predictable. I was surprised by the

6 number of the reaction to the second black guy. And I know

7 I've heard it from several black friends. And, you know, to

8 see it supposedly scientifically done is -- I didn't like that.

9 You know, I like to think we've gone beyond, you know, the '60s

10 and all the racism. But, you know, we've still got a ways to

11 go, so that's frustrating to watch it when it happens

12 currently.

13 MS. GIVENS: Juror Number 10?

14 VENIREPERSON: Yes. I interpreted the question

15 originally as past tense, so I served in the military police

16 corps in the army, in the '80s. And several of my army buddies

17 went into law enforcement following that, formative years, lots

18 of impressions.

19 MS. GIVENS: Okay. Thank you.

20 There was also a question about whether you had been a

21 witness in a case. Now, not whether you have sat in a

22 deposition.

23 Do you recall that question? Juror Number 17?

24 VENIREPERSON: I was a witness in a lawsuit against

25 my mom. 108

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1 MS. GIVENS: Anybody else who was an actual witness

2 in a case? Juror Number 26?

3 VENIREPERSON: I was a witness in a criminal case

4 about a month ago.

5 MS. GIVENS: Okay. Thank you.

6 Anybody else who was a witness? Juror Number 5?

7 VENIREPERSON: Yeah. I was just a witness in a civil

8 case relating to a transaction I was involved in as a counsel

9 for one of the parties.

10 MS. GIVENS: You're also an attorney; is that

11 correct?

12 VENIREPERSON: Yes.

13 MS. GIVENS: And I saw a card over here in the

14 corner, Juror Number 38.

15 VENIREPERSON: I was a witness in a shoplifting case.

16 MS. GIVENS: And were you the victim or you observed

17 it?

18 VENIREPERSON: I was the observer.

19 MS. GIVENS: Okay. You witnessed somebody else doing

2 0 something?

21 VENIREPERSON: Yeah.

22 MS. GIVENS: Anybody else?

23 Okay. How am I on time?

24 THE COURT: Used you've used 38 minutes 48 seconds.

25 You'll be finished by 3:00. 109

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1 MS. GIVENS: Okay. Thank you. I want to turn to

2 another topic.

3 And that is, Juror Number 35, you said something

4 interesting to me. You said you feel like you know what we're

5 dealing with here. Did I hear that correctly?

6 VENIREPERSON: Yes, you did.

7 MS. GIVENS: What did you mean by that?

8 VENIREPERSON: Well, we have a defendant that's

9 black.

10 THE COURT REPORTER: I'm sorry. I couldn't hear the

11 answer.

12 VENIREPERSON: Do you want to restate the question?

13 MS. GIVENS: Sure. During your last response, you

14 said that you feel like you know what we're dealing with here.

15 And my question to you was, what did you mean by that?

16 VENIREPERSON: And my response was that the defendant

1 7 is a black person.

18 MS. GIVENS: And nothing else that you felt like you

19 know what you're dealing with here?

20 VENIREPERSON: Well, we know what we're -- the judge

21 has already described how we're supposed to -- what our

22 guidelines are; okay? And do we need further explanation about

23 biases and video and all that? For me, I don't think so.

24 MS. GIVENS: Thank you. I appreciate your answer.

25 I can't see your number. I think it's Juror Number 23. 110

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1 You've been a little bit quiet, and I'd like to get to know

2 you.

3 What has been your response to this discussion we've been

4 having this afternoon?

5 VENIREPERSON: Well, I think the -- I was a little

6 bothered by the video. Again, like other people have stated

7 that, you know, it's sad to think that still goes on today.

8 But I also think color is irrelevant. I mean, if what we're

9 supposed to do is review the facts of the case, then I don't

10 think it should be based on color at all. I think we should

11 all keep that in our mind.

12 MS. GIVENS: Thank you. Thank you for your response.

13 Juror with the orange rock T-shirt, what's your juror

14 number?

15 VENIREPERSON: Twenty-eight.

16 MS. GIVENS: Juror Number 28, what do you think about

17 the discussion we've been having here this afternoon?

18 VENIREPERSON: I feel like race, in general, is used

19 as a way a tool to keep people divided and keeps people

20 divided and keep people's attention diverted somewhere else.

21 And it bothers me just hearing about it.

22 MS. GIVENS: Thank you. Thank you for telling us

23 about your honest response.

24 I know it can be difficult to talk about any type of bias,

25 and I don't want to pigeonhole it to race. There was a gender 111

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1 description there, but there's so many other dimensions that

2 all of us have. And it can be uncomfortable.

3 I want to know, based on the discussion we had, if by

4 playing the video and trying to have this discussion, is there

5 anyone who just feels like this is not the case for me? I

6 cannot sit through this case any longer. I do not like the

7 approach that, Kyana, the defense attorney, took in leading

8 this discussion.

9 Juror Number 24?

10 VENIREPERSON: Well, I kind of feel like -- that it

11 was the opposite; that with you showing that, you're pushing us

12 to look at, because the defendant is black, that we'll go out

13 of our way the other direction and not find him guilty, even if

14 we think he is, because if we do that, now we're prejudiced.

15 And so I feel like you're showing us that to make us feel

16 guilty if we even try to find him guilty. And I think that was

17 your real purpose for doing this.

18 MS. GIVENS: Thank you. I appreciate you saying so.

19 Getting your honest response is exactly what we need.

20 Is there anyone else who shares the same view as Juror

21 Number 24? Juror Number 20, Juror Number 3, Juror Number 5,

22 Juror Number 13.

23 Are you saying yes or no?

24 VENIREPERSON: I'm saying I have a different

25 response. It's a negative one, but it's not necessarily the 112

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1 same.

2 MS. GIVENS: Okay.

3 VENIREPERSON: I just -- I just had a negative

4 response, because I felt like you assumed that we were

5 prejudiced; therefore, you needed to remind us not to be

6 prejudiced, when, in fact, I was more upset that nobody was

7 saying anything about this guy stealing a bike, either of them,

8 all three of them. So I felt a little disturbed about your

9 approach, and I don't think it was very effective. That was my

10 response.

11 THE COURT: Two minutes, Counsel.

12 MS. GIVENS: Thank you.

13 Juror Number 13, you raised your card as well.

14 VENIREPERSON: Yes. I feel the same way as Number 5

15 has said, that you know, that -- I was most disturbed by the

16 first part but that no one was stopping the gentleman who

17 was white, and not, you know, that they were stopping the

18 gentleman who was black, because I felt that that was the

19 appropriate response, and that -- I do feel as though your

20 purpose would be, you know, in some ways to further your case.

21 Obviously, that's what you're expected to do; and that trying

22 to get us to look past our biases can also potentially reverse

23 the bias the other way. But I think it's hard to say, like,

24 completely, you know, which way any person would be biased.

25 MS. GIVENS: Anybody have a response in a 113

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1 different -- a different response? Juror Number 44?

2 VENIREPERSON: Yes, strongly. I mean, I have a

3 multicultural family and friends, and I see them living in a

4 parallel track, where I'll be treated one way and my husband,

5 who's Latino, for example, is treated very differently by the

6 same people, in the same city. So I think that there needs to

7 be a corrective discussion about this type of issue.

8 MS. GIVENS: Very quickly, I saw you right here.

9 THE COURT: Last question, counsel.

10 VENIREPERSON: Maybe it's a little tangential, but I

11 think what we forget in all of this is that there are people

12 who do engage in love and there are people who do engage in

13 care. You know, and I think sometimes we forget that, when

14 we're steering one way or the other. So there are people who

15 get it. There is love. There is care, you know. So I just

16 you know, it's interesting how these things get divisive,

17 because we just forget that, wow, there are people who do love,

18 there are people who do care, no matter what. They may not be

19 the majority, but, hey, they exist. And we need to, you know,

20 talk about that more too, rather than just one way or the

21 other.

22 THE COURT: Thank you, counsel.

23 MS. GIVENS: Thank you all for your answers.

24 THE COURT: Members of the jury, thank you for going

25 15 minutes past our normal break. We'll break now, but I 114

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1 wanted to get both rounds of voir dire in. The parties will

2 not be asking you any more questions. You should be happy

3 about that. So you'll take your break. And I'll come back

4 first and confer with the lawyers, and then we'll bring you up,

5 and then we'll go through the process of them exercising

6 peremptory challenges. And I'll explain that to you once

7 again.

8 So you'll break now. Go to the first floor. Please rise.

9 (Prospective jurors exit the courtroom)

10 THE COURT: Please be seated.

11 During a sidebar conference, the government asked to

12 exercise a cause challenge for Juror Number 19 on grounds that

13 Juror Number 19 indicated that she did not believe that she

14 could follow the law. She clarified what she meant by that on

15 examination of counsel. Ms. Givens indicated she wanted the

16 opportunity to perhaps rehabilitate the juror or ask additional

17 questions. I don't recall any questions that were asked of

18 Juror 19 on that specific topic.

19 MS. GIVENS: No. I wanted to utilize what time I had

20 left, and I ran out of time.

21 THE COURT: That's fine. But I just want to now see

22 if the government still wants to continue with the objection to

23 Juror Number 19 on cause.

24 MS. BECKER: We do, yes.

25 THE COURT: Any objection by the defense? 115

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1 MS. GIVENS: Yes, we still object.

2 THE COURT: All right. The objection is noted. It's

3 overruled. I think there's been sufficient indication by the

4 juror that's been unrebutted that she indicated she could not

5 follow the law. That's a basis for a cause challenge. Juror

6 Number 19 will be excused for cause.

7 I'm going to break now, so you'll have a chance to confer

8 with each other regarding any possible cause challenges. We'll

9 resume this afternoon. You'll go first with your cause

10 challenges, then we'll summon the jury so we can have the

11 peremptory challenges exercised at that time. So use this time

12 wisely.

13 MS. BECKER: A couple quick questions? I'm

14 understanding the peremptories to be exercised simultaneously,

15 not back and forth?

16 THE COURT: That's correct.

17 MS. BECKER: And because we have two alternates, how

18 do you handle the alternates? Do we have eight total, or do we

19 need to exercise specifically as to those chairs?

20 THE COURT: You exercise everything at the same time.

21 MS. BECKER: Eight total?

22 THE COURT: That's correct.

23 MS. BECKER: Thank you.

24 THE COURT: You have seven, counsel.

25 MS. BECKER: Seven, thank you. 116

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1 MR. CANTOR: And we have ten?

2 THE CLERK: Eleven.

3 MR. CANTOR: Eleven, I'm sorry.

4 THE COURT: Right. Okay. Let's take our break.

5 (Recess)

6 THE COURT: We'll take our cause challenges,

7 beginning with counsel for the plaintiff. Please be seated.

8 MS. BECKER: Your Honor, the government has no

9 challenges for cause.

10 THE COURT: Okay.

11 MS. BECKER: None additional.

12 THE COURT: Counsel for the defense, cause

13 challenges?

14 MS. GIVENS: Yes, Your Honor. The defense would move

15 for cause challenge for Juror Number 3 -- do you want them each

16 listed out?

17 THE COURT: Why don't you just list them all, and

18 then we'll come back one at a time.

19 MS. GIVENS: Juror Number 3, Juror Number 5, Juror

20 Number 20, Juror Number 23, Juror Number 24, 33, and 35.

21 THE COURT: Okay. Let's start with Juror Number 3.

22 MS. GIVENS: Okay. So I'll start with why we

23 distinguished these people

24 THE COURT: Step to the lecturn, counsel.

25 MS. GIVENS: Okay. Sorry, Your Honor. 117

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1 Your Honor, we distinguished this group of jurors because

2 of their response to my question as to whether they would hold

3 the use of this video by me against Mr. Harris. These are the

4 people who said that they would, so that's the group that we

5 set aside.

6 Some of the people that we think made it clear that they

7 were not going to be able to be fair and unbiased was Juror

8 Number 24. And that is related to her remarks --

9 THE COURT: Well, counsel, let's stay with Number 3.

10 So complete your argument on 3 before you move around, because

11 right now you just leap-frogged all the way down four or five

12 jurors.

13 MS. GIVENS: I was doing it the easiest ones first,

14 but I can go in the order that the Court wants.

15 THE COURT: That's the order that you gave them to

16 me, counsel.

17 MS. GIVENS: Okay. Juror Number 3 is in the group

18 who indicated that they were essentially offended by

19 questioning about bias during a jury voir dire. And I went

20 further as to ask whether they would hold that against

21 Mr. Harris, and Juror Number 3 answered affirmatively.

22 Juror Number 5 is the exact same argument. Do you want me

23 to repeat that?

24 THE COURT: No, not if it's the same exact argument.

25 MS. GIVENS: Juror Number 20 was the exact same. And 118

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1 Juror Number 23 was the exact same. All of those jurors would

2 hold the type and content of the questioning that we did

3 against Mr. Harris.

4 Juror Number 24, in addition to the same argument that

5 applies to Juror 3, 5, 20, and 23, Juror Number 24 thought that

6 we had essentially baited her by our questioning and the

7 content of our questioning and pigeonholed her so that she

8 would feel like she could not return a guilty verdict in this

9 case. I don't recall making any type of statement in that

10 direction, but I think that her response makes clear that this

11 is not a juror who can sit as a fair and unbiased fact finder

12 in this case, if for no other reason than being offended about

13 having a race bias discussion. And I would say to the Court

14 that this also included gender, which she did not focus on.

15 Juror Number 33 did not have the specific comments that

16 Juror Number 24 had, but he also was the one who started the

17 discussion by being candid with the Court that he thought that

18 this video was used somehow to ignite a race discussion. And

19 he answered the same as the other jurors when I said would he

20 hold it, the discussion, against Mr. Harris. That shows that

21 Juror Number 33 would not be able to fairly and impartially

22 weigh the evidence, and they would hold the content of the

23 discussion against Mr. Harris.

24 I think the same argument applies to Juror Number 35, who

25 several times I asked about whether he felt similar to Juror 119

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1 Number 33. He answered affirmatively to answering similar.

2 And with an opportunity to explain himself, I asked, you

3 mentioned -- that he said: We know what we're dealing with

4 here. And when I asked him what he meant by that, he simply

5 said: We're dealing with a black defendant. In addition to

6 that comment, he joined in the comment of the rest of these

7 jurors that I have discussed; that he would hold the content of

8 our voir dire against Mr. Harris.

9 I don't believe that any of the jurors that I described

10 will be able to fairly and impartially weigh the evidence in

11 this case. Those are our for-cause challenges.

12 THE COURT: Okay. Thank you.

13 Counsel for the government, response?

14 MS. BECKER: Thank you.

15 This court allowed the defense to play a video in its voir

16 dire that was produced in a sensationalist fashion, that

17 addressed race very crudely, addressed gender minimally, and

18 was, frankly, ham-handed and preaching, even when you're

19 cutting out the commentary, as this court instructed the

20 defense to do. I don't think it's particularly surprising that

21 many of the jurors were off ended by the fashion in which the

22 topic was raised. And what I heard those jurors express, the

23 jurors that have been identified by counsel and a number of

24 others, what I heard them express was dissatisfaction with the

25 way in which the topic was raised, and not that the topic was 120

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1 raised at all.

2 I didn't hear jurors expressing that they would hold

3 against the defendant the fact that this video was played or

4 that this topic was discussed. And if the jurors answered a

5 question that way, I'm not sure that the jurors would stand by

6 an interpretation of their answers in that fashion; and the

7 government, not having had a chance to voir dire them on this

8 topic, would ask to do so. Because I think that what they were

9 addressing was their dissatisfaction with the method with which

10 this topic was raised.

11 Juror Number 5 expressed feelings that he was being

12 accused of being racist just by showing this video. Juror

13 Number 24 expressed, generally, that she felt like the purpose

14 of the questioning was designed to garner sympathy for the

15 defendant and suggest that she should go out of her way to

16 acquit him, despite the evidence.

17 And so to the extent that the defense is making challenges

18 for cause against all of these jurors -- and it appears with

19 each of them this is the case -- because of their reaction to

20 the video and their reaction to counsel's questioning about it,

21 at a minimum, if the Court's inclined to entertain that, the

22 government would like to further inquire of each of these

23 jurors. But I didn't hear any of their answers indicate that

24 they couldn't be fair; that they couldn't evaluate this case

25 based on the evidence that they will hear and the instructions 121

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1 of law; that they would hold the playing of the video and the

2 topic of discussion against the defendant. And if the Court

3 heard that with respect to any juror, I would like to further

4 question on that topic. I don't feel the need to address them

5 individually unless the Court would like me to do so, but I

6 think my remarks cover all of the seven jurors identified.

7 THE COURT: Okay. Thank you.

8 Ms. Givens, the concern the Court has is, there were

9 questions that were asked, but I don't know necessarily that

10 enough follow-up questions were asked. In other words, if your

11 perception was that the jurors who felt that they would hold

12 this against the defendant -- again, those are your words, as

13 opposed to the Court's interpretation -- would they be able to

14 set aside that feeling and make the determinations based only

15 upon the facts and evidence and the law provided in this court?

16 That should have been the follow-up question in order for the

17 Court to make a proper assessment as to whether or not a cause

18 challenge should be granted.

19 So I think the appropriate means of dealing with this is

20 not to make a ruling in a vacuum, but to bring those specific

21 jurors that you've identified and bring them in collectively

22 and ask that specific question. These jurors were -- had

23 indicated some reservation about having played the video; and

24 do they feel that the video would be so influential over their

25 ability to be fair and impartial that they couldn't set aside 122

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1 any feelings and make the determinations based solely upon the

2 evidence, facts, and the law provided in this court? Does the

3 defense have any objection to that proposed resolution?

4 MS. GIVENS: I do not.

5 THE COURT: Okay. Thank you. Please be seated.

6 Counsel for the government?

7 MS. BECKER: We have no objections to that.

8 THE COURT: All right. Let's bring in just those

9 jurors. And that's specifically 3, 5, 20, 23, 24, 33, and 35.

10 Counsel, I would note, while those jurors are being

11 summoned, that I do have some reservations about the answer

12 that was provided by Juror Number 35, because I think his

13 answer crossed the line to the extent that I have some

14 reservations about his ability to be fair. Because when asked

15 a follow-up question, he did indicate -- my notes verify the

16 same -- that, "We know what we're dealing with here." And he

17 didn't talk about the fact of implicit bias. He talked about

18 the defendant being black. And that was the only point that he

19 keyed in on. And that type of response, the Court believes,

20 would demonstrate the sufficient degree of bias; that I have

21 strong and grave concerns about Juror Number 35's ability to be

22 fair and impartial.

23 Counsel for the government, do you disagree with that

24 assessment?

25 MS. BECKER: Your Honor, again, I think I'd like to 123

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1 question him further on this topic. I understood his answer

2 and maybe I misunderstood his answer -- but I understood his

3 answer to be explaining why he was distressed about the playing

4 of the video, is that he was asking -- is that he was being

5 asked by the defense to consider the fact that the defendant is

6 black. That's how I understood his answer. And I could

7 completely be misreading that, but I'd like the opportunity to

8 question him further because of it. I want to make sure that

9 we're understanding him correctly. I don't disagree with your

10 characterization of what he said.

11 THE COURT: Well, my notes indicate that his response

12 was, "I know what we're dealing with here. The defendant is a

13 black person. I know what the judge directed us, and the

14 guidelines. And do we need further" -- I can't read my notes.

15 "But do we need something further regarding biases in the

16 video?" And, "I don't think so." That was his comment. But

17 the concern I have is that the immediacy of his reaction was to

18 go to race, as opposed to the conduct that was involved. He

19 didn't address gender at all. He didn't address any other

20 distinction. He went straight to the point that the only thing

21 he got out of the video was a black man, or referring to the

22 defendant being a black man.

23 MS. BECKER: Right. But given his immediate

24 connection of the fact that the defendant is a black man, you

25 can -- I understood his comments to be: We're being shown this 124

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1 because we're being asked to consider how bias plays into the

2 fact that the defendant is a black man. I would just like to

3 question him further.

4 THE COURT: Your objection is noted, counsel, but I'm

5 going to excuse Juror Number 35. And that's primarily based

6 upon the immediacy of his response and how he pinpointed it.

7 And it was directed towards the defendant, as opposed to the

8 content of what he watched in the video. So Juror Number 35

9 will be excused on cause challenge.

10 MS. BECKER: Thank you.

11 THE COURT: Counsel, just out of curiosity, do you

12 have any witnesses in the hallway?

13 MS. BECKER: I don't think so.

14 THE COURT: I just wanted to make sure because -­

15 MS. BECKER: The only people that we have present

16 that we could have possibly gotten to today are in the

17 courtroom.

18 THE COURT: I just wanted to make sure, because there

19 are some jurors that didn't follow the Court's instructions.

20 They're in the hallway. And I just wanted to verify that you

21 have no witnesses out there that they may have heard anything.

22 MS. BECKER: I don't. But I'd ask Victoria to

23 identify for us what number they are, when she comes back.

24 THE COURT: Okay.

25 MS. BECKER: Thank you. 125

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1 THE CLERK: The jurors are gathering. But the jurors

2 that were there that came up prematurely were 6, 42, and 28.

3 THE COURT: Do you see any persons in the hallway

4 other than just jurors?

5 THE CLERK: No.

6 THE COURT: I think that satisfies the Court's

7 concern.

8 Government have any concern?

9 MS. BECKER: No, thank you.

10 THE COURT: Defense have any concern?

11 MS. GIVENS: No.

12 THE COURT: All right. We'll bring in the jury,

13 then.

14 And, counsel, please remember that Juror Number 20 is out

15 of order.

16 MS. BECKER: Yes.

17 THE COURT: I just want to remind you of that.

18 And have the parties started to identify the peremptory

19 challenges as well?

20 MS. BECKER: Yes. They might be updated based on the

21 Court's ruling.

22 THE COURT: Counsel for the Defense?

23 MS. GIVENS: Yes.

24 (Selected prospective jurors enter the courtroom)

25 THE COURT: Members of the jury, at least some of 126

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1 you, first of all, I don't want you to think because we brought

2 you up separately that any of you have done anything wrong.

3 And it's my experience that when jurors are separated from the

4 balance of the jury, somebody thinks something is going

5 sideways. That's not the case. The only reason I'm asking you

6 up here is because all of you gave similar responses to

7 questions that were posed to you by defense counsel.

8 You may recall that defense counsel was asking you

9 questions about the playing of the video and any concerns that

10 you may have had or any impact that they may have had

11 playing that video may have had on your ability to be fair and

12 impartial in this case.

13 So my question to all of you is, does the mere fact that

14 the video was played put you in a position that it would make

15 it difficult or impossible for you to be fair and impartial to

16 the defendant in this case? I see no response.

17 Now, my next question is -- is that the defendant was

18 charged with specific offenses that I've identified. The

19 determination of guilt or innocence in this case must be based

20 upon the facts and the law and the evidence as presented to

21 you. Is there any juror who would not be able to make the

22 determinations of guilt or innocence based solely upon the

23 facts, the law, and the evidence as presented to you? I see no

2 4 response.

25 Does the mere fact that the video was played cause any ill 12 7

USA v. Harris, 7/20/15 (Vair Dire)

1 feelings that you have or any feelings that you have that would

2 be negative that would impact your ability to be fair to the

3 defendant in any respect, on any level?

4 Juror 33?

5 VENIREPERSON: The only thing that would bother me

6 would be, I felt -- like I was explaining earlier, I was

7 insulted because I felt that we were being led. And I may be

8 feeling that same way, being led, for the same type of reasons.

9 That's the only -- that's the only thing that I would have to

10 say.

11 THE COURT: Do you think that that would impact your

12 ability to be fair and impartial by the fact that you saw the

13 video?

14 VENIREPERSON: No. I may second-guess, but I guess

15 every juror second-guesses during a trial.

16 THE COURT: All right. Do you feel that the playing

17 of the video caused such strong emotions on your part, or

18 reaction on your part, that it would impact your ability to

19 weigh or consider the evidence?

2 0 VENIREPERSON: No.

21 THE COURT: Any other juror have any additional input

22 on this topic?

23 Any additional follow-up questions by the defense or the

24 government to supplement the specific issue as raised by the

25 Court? Counsel for the government? 128

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1 MS. BECKER: No.

2 THE COURT: Counsel for the defendant?

3 MS. GIVENS: Yes, I was wondering if you could first

4 articulate what it was that insulted you.

5 VENIREPERSON: What insulted me more than anything

6 was the fact that it was played to dramatize the fact that

7 we're looking at a white guy, we're looking at a black guy, and

8 we're looking at a female. Obviously, we know I thought we

9 were being led to, as explained by the outcome of the video,

10 everybody jumped on the black guy, not on the white guy, or

11 helped the girl. I just felt that we were being led -- I was

12 being led there.

13 MS. GIVENS: Thank you. I appreciate your answer.

14 My second

15 Was I interrupting?

16 THE COURT: No.

17 MS. GIVENS: I thought I heard someone say something.

18 My second question was, you mentioned that you may

19 second-guess. And I'm trying to understand what it is that you

20 would second-guess.

21 VENIREPERSON: That you're leading me again, somebody

22 is leading me again towards either looking at white or black or

23 something else.

24 MS. GIVENS: Okay.

25 THE COURT: Thank you. 129

USA v. Harris, 7/20/15 (Vair Dire)

1 MS. GIVENS: Thank you.

2 THE COURT: Now, member of the jury, if you'd go out,

3 I'll confer with the lawyers, briefly, and we'll bring all of

4 you back in, not just your group. Thank you.

5 (Selected prospective jurors exit the courtroom)

6 THE COURT: Please be seated.

7 Any further argument on the cause challenges by the

8 government?

9 MS. BECKER: No, thank you.

10 THE COURT: By the defense?

11 MS. GIVENS: Do you want me to approach the lecturn?

12 THE COURT: Yes.

13 MS. GIVENS: Your Honor, I still maintain a for-cause

14 challenge against Juror Number 33. I think this idea that he

15 is insulted by the content of a video and the second idea that

16 he may second-guess that we are leading him to something, when

17 there has been nothing to present yet, this makes me believe

18 that Juror Number 33 has something else in his mind; that he's

19 concerned that we are trying to trick him, use -- I think the

20 word for all of the responses of these jurors is the "race

21 card" to benefit Mr. Harris. And we I said very clearly, I

22 read the voir dire that we presented to the Court, and I said

23 what our intent was and named multi-dimensions of different

24 types of bias. And here we are still focusing on the race of

25 Mr. Harris by Juror Number 33. I do not see a distinction 130

USA v. Harris, 7/20/15 (Vair Dire)

1 between Juror Number 33 and Juror Number 35, who we've already

2 struck for cause.

3 THE COURT: Anything further from the government?

4 MS. BECKER: We have no further argument. Thank you.

5 THE COURT: All right. I'm going to grant the

6 request on 33, just out of an abundance of caution. He's on

7 the fence, as far as the Court's concerned, in terms of the

8 remarks that he's made. He does appear, however, to be quite

9 defensive about the reaction to the playing of the video and

10 quite defensive to the fact that the Court was making further

11 inquiry about the area of examination that was presented to

12 them.

13 I also believe that the Court's follow-up question deals

14 specifically with the facts of bias in this particular case.

15 And every one of the jurors indicated in a manner which is

16 satisfactory to the Court; that they'd be able to make the

17 determinations based upon the facts and the evidence and not be

18 influenced by any other considerations.

19 To the extent that the defense has raised concern that the

20 jurors would hold it against the defendant and I don't

21 believe they said that -- that that should be a basis for them

22 to be excused for cause, I find no basis to warrant that -- to

23 grant that request. So other than Jurors 33 and 35, as

24 indicated by the Court, those other cause challenges are

25 denied. 131

USA v. Harris, 7/20/15 (Vair Dire)

1 So I believe now I've exhausted all the cause challenges

2 for the government; is that correct, counsel?

3 MS. BECKER: Yes.

4 THE COURT: And I've exhausted all the cause

5 challenges for the defense?

6 MS. GIVENS: That's correct, with the keeping of

7 Juror Number 24 over the defense objection.

8 THE COURT: That's fine.

9 Okay. Now, counsel, will you be able to make your

10 identification of your peremptory challenges? And do you want

11 me to have the jurors come in and raise their cards, or are you

12 familiar enough with them at this point in time?

13 MS. BECKER: We've completed our challenges.

14 MS. GIVENS: I'm comfortable without the jurors

15 having to come in and raise their cards.

16 THE COURT: Are you ready to give me your sheets at

1 7 this point in time?

18 MS. GIVENS: In just a moment.

19 MS. BECKER: Yes.

20 THE COURT: Okay. We'll start the process now

21 selecting the jury.

22 Counsel, the other thing I'm thinking about doing, by the

23 time we have the jurors come in, properly positioned, and read

24 the jury instructions to them, we're probably going to be a

25 little bit after 4:00. Counsel, in the pretrial conference, 132

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1 indicated that they believed that they could complete their

2 opening remarks in about 20 minutes.

3 Does that still hold true? Because otherwise, we'll just

4 stop and do opening statements tomorrow morning with both

5 sides.

6 MR. LEUPOLD: Your Honor, at the expense of being

7 held to this, I think the government can do it in 18 minutes.

8 THE COURT: Okay. All right, then. If we have 18

9 minutes, you'll do your opening.

10 Ready, Victoria?

11 MS. GIVENS: I'm not quite ready -- I'm sorry. I've

12 messed up two lines so severely that I think I need a new

13 sheet.

14 MS. BECKER: Is the Court considering doing only one

15 opening or both openings?

16 THE COURT: At this point in time, we'll be stopping

17 at 4:30. So we'll do the government's opening and stop, and

18 pick up tomorrow at 9:00 a.m. with the defense opening.

19 MS. BECKER: Thank you.

20 THE CLERK: I'm going to let 33 know he's excused?

21 THE COURT: Yes.

22 MR. CANTOR: Your Honor, while my colleague is

23 preparing the list, are we going to break up the opening

24 statements? Is that the intent?

25 THE COURT: Yes. The government indicated they could 133

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1 get theirs done in 18 minutes.

2 MR. CANTOR: And then I'd go tomorrow morning?

3 THE COURT: Correct.

4 MS. GIVENS: Okay. I believe I am now done.

5 MR. CANTOR: Your Honor, before we actually get to

6 the jury selection, there are a couple matters that I would

7 like to address, real briefly, if that's all right.

8 THE COURT: Does it relate to the selection of this

9 jury?

10 MR. CANTOR: Not to the selection of the jury, but

11 after we do that, before we begin openings, I'd like to address

12 the Court on a couple of brief matters.

13 THE COURT: Let's take care of it right now.

14 MR. CANTOR: Number 1, my preference would be not to

15 break up the opening statements. I know during the pretrial

16 conference there was some discussion about not breaking up

17 arguments, whether it's opening statement or closing. My

18 preference would be that, you know, if all we're talking about

19 is 18 minutes, I don't think 18 minutes is really going to have

20 an impact on when this trial is expected to conclude. I would

21 think it would be cleaner if we just instruct the jury in the

22 morning, preliminary instructions, and go right into opening

23 statements, one right after the other, rather than breaking it

24 up.

25 The second point that I'd like to make is that there is a 134

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1 court rule on excluding witnesses. I understand the government

2 has their case agent, Nicholas Bryson, who's going to sit at

3 counsel table. I would object to Detective Jayce Gutzler also

4 sitting in during the trial. I don't think the rule permits

5 two case agents. I think it permits one case agent, so I would

6 ask the Court to exclude Detective Gutzler, once we begin

7 opening statements.

8 THE COURT: All right. Counsel, your request to

9 separate or consolidate the opening remarks, that request is

10 denied. If you recall, the Court said I would engage in my

11 best efforts to try and keep the arguments together. But in

12 the efficient use of juror time, it may not make a difference

13 to you, but that 18 minutes may make a difference elsewhere in

14 the trial.

15 Now, on the second issue, counsel, any input on the

16 request to have two case agents?

17 MS. BECKER: Yes, Your Honor. Rule 615 contemplates

18 the exclusion of witnesses at the request of a party, but does

19 not apply to witnesses who are essential to the presentation of

20 the case. In this case, although it's unusual, there are

21 really two agents who are critical to the presentation of the

22 case and to assist the government. And the reason for that is

23 because we had two separate agencies collaborating in this

24 investigation. Agent Bryson is here on behalf of the DEA.

25 Detective Gutzler is with, as I indicated earlier, Kirkland 135

USA v. Harris, 7/20/15 (Vair Dire)

1 Police Department, but he was working with the Eastside

2 Narcotics Taskforce. They had different roles in the

3 investigation but really worked hand in hand. I think you

4 often see, in investigations, partners. This was a true

5 partnership, even though they were different agencies. And

6 although they had somewhat different roles, they're both

7 critical to the government. It doesn't make sense to exclude

8 one and not the other. So the government is asking for both to

9 be present. We, frankly, just don't have room at counsel table

10 to include Detective Gutzler at counsel table. Otherwise, we'd

11 ask for him to be seated here.

12 THE COURT: The objection by the defense is

13 overruled. The case agents will be permitted to remain, as

14 indicated by the government.

15 Let's bring in the jury.

16 MS. BECKER: Thank you.

17 (Prospective jurors enter the courtroom)

18 THE COURT: Good afternoon, again. Please be seated.

19 Ladies and gentlemen of the jury, we have gone through the

20 process of exercising cause challenges as well as the

21 peremptory challenges. Many times, we have the jurors present

22 when we go through peremptory challenges. It merely means we

23 give two different sheets to the parties, and they write the

24 names down of the jurors and then present it to the Court. In

25 lieu of having you just sit in the courtroom while that was 136

USA v. Harris, 7/20/15 (Vair Dire)

1 done, I figured I'd give you more freedom to be able to move

2 around and have you not be present in the courtroom for that,

3 and that's what we were doing. Nonetheless, I'll be able to

4 honor my statement at the beginning of the trial about being

5 able to pick a jury today, and we have done that.

6 Now, if your number is called, first of all, I want you to

7 raise your card. If you're seated in the jury box, stay in

8 your seat. If your number is called and you're in the seats in

9 the audience, raise your card, but start walking forward and

10 just merely stand in this position, and then the in-court

11 deputy, Victoria, will place you in the proper seat in the jury

12 box.

13 Before I go through the process of identifying who's going

14 to serve and who's not going to serve, I want to thank every

15 single one of you for responding to your jury summons and going

16 through the process of jury selection. I think, if nothing

17 else, you've gone through a very educational process today

18 about how the process can be involved. Sometimes it can deal

19 with touchy subjects or subjects that might make you feel

20 uncomfortable or subjects that need to be addressed or any

21 number of topics that include the things the lawyers covered

22 during their voir dire examination.

23 I hope this was educational, and that when you leave it

24 will be a rewarding experience for each one of you so that the

25 next time you receive your jury summons, there's not a groan 13 7

USA v. Harris, 7/20/15 (Vair Dire)

1 but there's a response of a willingness to serve and to go out

2 and educate other members of the community about the importance

3 of jury service. Because trust me, without citizens such

4 yourself who are willing to respond to a jury summons, our

5 system of justice would collapse. So for that, thank you.

6 If you're excused from this case, let the jury room know

7 on the first floor, but I suspect they'll just tell you have a

8 good evening, and you've satisfied your jury obligation.

9 With that, the following jurors will serve as jurors in

10 this case: Juror Number 4, Juror Number 6, Juror Number 7,

11 Juror Number 8, Juror Number 9, Juror Number 10, Juror

12 Number 12, Juror Number 14, Juror Number 16, Juror 21,

13 Juror 22, Juror 28, Juror 31. Juror Number 31, please step

14 forward. And last is Juror Number 32.

15 Now, if you're seated in the jury box and your number was

16 not called, would you please rise and step out of the jury box.

17 Now, if you'd just merely take a seat in the back of the

18 jury room, you're not excused yet.

19 THE CLERK: So Juror Number 7 took Seat 3. Juror

20 Number 8 will take Seat 4. So just come on out. You're all

21 going to be in different spots.

22 All right. So Juror 8 will take Seat 4. Juror 9 will

23 take Seat 5. Juror Number 10, take Seat 6. Juror 12 is in

24 Seat 7. Juror Number 8 or 14 is in Seat 8, all the way to

25 the back. Juror Number 16, take Seat 9 next to him. Juror 21, 138

USA v. Harris, 7/20/15 (Vair Dire)

1 10. Juror 22, now you're Juror 11. Juror Number 28, Seat 12.

2 Juror Number 31, you'll be in Seat 13. And Juror Number 32,

3 you are Juror 14 now.

4 THE COURT: Does the government accept the jury as

5 presently impaneled?

6 MS. BECKER: We do.

7 THE COURT: Does the defense accept the jury as

8 presently impaneled?

9 MS. GIVENS: We do.

10 (End of voir dire)

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25 139

USA v. Harris, 7/20/15 (Vair Dire)

1

2

3

4 C E R T I F I C A T E

5

6

7

8 I, Andrea Ramirez, RPR, CRR, Court Reporter for the

9 United States District Court in the Western District of

10 Washington at Seattle, do hereby certify that I was present in

11 court during the foregoing matter and reported said proceedings

12 stenographically.

13 I further certify that thereafter, I have caused said

14 stenographic notes to be transcribed under my direction and

15 that the foregoing pages are a true and accurate transcription

16 to the best of my ability.

17

18

19 Dated this 27th day of July, 2015.

20

21 /s/ Andrea Ramirez

22 Andrea Ramirez Official Court Reporter 23

24

25 1 STATE OF WISCONSIN CIRCUIT COURT COUNTY OF DOUGLAS

2 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 3 STATE OF WISCONSIN,

4 Plaintiff,

5 vs. 2013-CF-194 6 TIAWAIN ALBERT JOHNSON,

7 Defendant. 8 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 9 PARTIAL TRANSCRIPT OF JURY TRIAL 10 BEFORE THE HONORABLE KELLY J. THIMM 11 ------,Circuit Court Judge 12 F~LED

13 MAR 24 2015 May 19, 2014 ~ 14 MICHELE WICK Superior, Wisconsin /, •\ CLERK OF CIRCUIT COURT 15

16 APPEARANCES:

17 FOR THE PLAINTIFF: Mr. Daniel W. Blank District Attorney 18

19 FOR THE DEFENDANT: The Defendant was present and represented by: 20 Mr. Aaron A. Nelson Attorney at Law 21 103 North Knowles Avenue New Richmond, Wisconsin 54017-0388 22

23

24

25 1

1 PROCEEDINGS

2 VOIR DIRE BY MR. NELSON:

3 THE COURT: Thank you, Mr. Blank. Mr.

4 Nelson.

5 MR. NELSON: Begin before lunch, judge?

6 THE COURT: I was thinking so.

7 MR. NELSON: All right, that's fine.

8 Morning. Am I close enough to the mike?

9 THE COURT: I think you're pretty good.

10 MR. NELSON: All right. Selecting a jury is

11 a very critical part of our system in which we pursue

12 justice. I'm proud to stand here with Mr. Johnson.

13 Eventually let 12 of you decide this case.

14 What we talk about here is critical and the

15 critical things that we're going to talk about now

16 depend upon one crucial aspect from everybody in the

17 courtroom. Sometimes hard for us to do in a group.

18 That's just what I call brutal honesty. I'm going to do

19 my best to be as honest and forthright getting to these

20 issues that we need to talk about and I just ask that

21 you do the same.

22 To begin with, I want to tell you that

23 there's no right or wrong answers in anything that you

24 say in any questions to me if you're sharing your

25 thoughts, your feelings, your opinions. Those are all 2

1 appropriate answers. It's just important that we know

2 what those are and I want you to know that this should

3 be a comfortable setting in which you can share those.

4 Does that make sense? So I don't have a lot of time. I

5 understand your time is valuable. I think the Court's

6 time is valuable so I'm going to be direct, just get

7 right into some of the topics that I think we need to

8 talk about so I apologize up front if I'm too direct,

9 but I appreciate your time and I just want to get into

10 it. Does that make sense?

11 JUROR ROBERT STRONG: Yeah.

12 MR. NELSON: Look around the courtroom.

13 Look at all the people in the courtroom. Look at the

14 other jurors. Look at everybody else in the courtroom.

15 Look at Mr. Johnson. Any reason I might be concerned,

16 right or a wrong concern, he might be concerned having

17 his trial here in this place at this time? Mr. Koski?

18 JUROR JEREMY KOSKI: I didn't realize this

19 but then once there was the election for Obama I

20 realized there was more racism out there than I really

21 thought there was.

22 MR. NELSON: Thanks, Mr. Koski. Sounds like

23 what you're saying, racism might be a concern in this

24 case?

25 JUROR JEREMY KOSKI: (Nods head up and ~ 3

1 down. )

2 MR. NELSON: I'm going to just approach up

3 there. Is that all right, judge?

4 THE COURT: Yeah.

5 MR. NELSON: Anybody agree with Mr. Koski?

6 Can I just see a show of hands? Anyone heard the term

7 race card? Who has heard the term, race card before?

8 Ms. Duffy, what does race card mean to you?

9 JUROR DEBORAH DUFFY: Well it was probably

10 the O.J. Simpson trial was the first time it was quite

11 publicized as a defense.

12 MR. NELSON: Okay. How did they use it as a

13 defense or what does the term mean in that sense?

14 JUROR DEBORAH DUFFY: I'm not exactly sure

15 to be honest with you.

16 MR. NELSON: I appreciate that. Anybody

17 else wanted to help out? Ms. Mattson? Ms. Ringeisen?

18 JUROR PENNY RINGEISEN: Yes, we actually had

19 a gentleman formerly at our employment. He was a

20 colored gentleman and he would constantly use the fact

21 that we had a black president, that we shouldn't treat

22 him the way we treated him. He felt he was being

23 treated different because of being black which never was

24 but that was his concern as far as he kept pulling the

25 race card. The only reason why bad things were 4

1 happening to him is because he was black, not just

2 because he was a human being messing up.

3 MR. NELSON: So I don't want to -- thank

4 you, Ms. Ringeisen?

5 JUROR PENNY RINGEISEN: Yes.

6 MR. NELSON: I'll get it right hopefully.

7 Patience. If I can draw a connection between the two.·

8 It sounds like race card is maybe something that people

9 think of as a crutch, that sometimes people use as maybe

10 an excuse, would that be

11 JUROR ROBERT STRONG: Yes.

12 MR. NELSON: -- a fair statement?

13 JUROR ROBERT STRONG: Yes.

14 MR. NELSON: Mr. Strong.

15 JUROR ROBERT STRONG: I think sometimes it

16 means also like because he's a colored guy, feel sorry

17 for him. I grew up in the ghetto. This happened. The

18 way I was raised. I'm black. Also be viewed that way.

19 I've seen it used that way.

20 MR. NELSON: Anybody else comment on the

21 race card? Anybody think because -- the first question

22 I asked you dealt with the color of Mr. Johnson's skin

23 that I think some way we're playing the race card or

24 that's going to be the race card side of it on the

25 defense side. Again, I think that's very direct and I 5

1 won't be cross-examining anybody but that's my concern

2 that I mention his race and somebody might think, oh,

3 here goes the criminal defense attorney just playing the

4 race card like they did in the O.J. Simpson case. I

5 don't mean to say that. You said that, Ms. Duffy.

6 That's my concern. No reason to have that concern here

7 in this courtroom?

8 JUROR DEBORAH LISDAHL: ·we don't know yet.

9 We haven't heard what you have to say.

10 MR. NELSON: I appreciate that. That was

11 Ms. Lisdahl, right?

12 JUROR DEBORAH LISDAHL: Um-hum.

13 MR. NELSON: Okay. Do you think it's

~ 14 appropriate that race be an issue in any justice system?

15 JUROR DEBORAH LISDAHL: Personally, no.

16 MR. NELSON: Thank you for sharing that.

17 Who all agrees with Ms. Lisdahl? Just a show of hands.

18 Anyone disagree and think that sometimes race is an

19 important part in the justice system?

20 JUROR JESSICA GAYLORD: I don't exactly

21 disagree.

22 MR. NELSON: You're Ms. Gaylord, right?

23 · JUROR JESSICA GAYLORD: Yes, but being that

24 we're made up of human people, I think it has to be

25 addressed. I mean you can't possibly think that it's ~ 6

1 not ~ven something that people can see and the fact that

2 you're bringing it up that perhaps the defendant is the

3 only black person, it sounds like the way that you're

4 bringing it up puts that there is a difference.

5 MR. NELSON: Okay. So I -- maybe I don't

6 want to put words in your mouth. You wonder if I'm

7 manipulating people by using race?

8 JUROR JESSICA GAYLORD: I'm not saying that

9 you're manipulating it. I'm saying that it's

10 unrealistic to think that race isn't apparent in

11 anyone's thought.

12 MR. NELSON: Sure. Thank you for sharing

13 that, Ms. Gaylord. I guess maybe as a point to that,

~ 14 did anybody here when they walked into the courtroom and

15 they looked over to that counsel table and they saw me

16 sitting there next to Mr. Johnson, did anybody think

17 wow, I wonder what that white guy is charged with?

18 Anybody think that? Did anybody think a black guy who's

19 an attorney here in Superior? Did somebody think that?

20 Mr. Strong, you're pointing at yourself. That was the

21 thought?

22 JUROR ROBERT STRONG: I didn't really know

23 which one it was because they're both dressed so nice.

24 Could be a black attorney. Doesn't matter to me. Race

25 has nothing to do with -- I didn't even think about it 7

1 when I saw a colored guy sitting there. Didn't bother

2 me.

3 MR. NELSON: I appreciate you sharing that.

4 I hope we can all get to that mindset in America at some

5 time. Ms. Gaylord?

6 JUROR JESSICA GAYLORD: Yes.

7 MR. NELSON: You share Mr. Strong's

8 thoughts?

9 JUROR JESSICA GAYLORD: To a point. I mean

10 it wasn't so blatant as to think, there's a black

11 lawyer. Just a bunch of lawyers in suits.

12 MR. NELSON: I won't ask you what you think

13 about lawyers yet. Anybody else share the thought that

~ 14 Ms. Gaylord and Mr. Strong had? So from that I don't

15 want to assume but it sounds like everybody else is

16 acknowledging, look, when we walked in, the white guy is

17 the attorney, the black guy is the defendant? I see a

18 lot of heads nodding.

19 JUROR JENNIFER PENNINGTON: I don't think

20 so. Just that he's in the middle.

21 JUROR MONICA BLOOMQUIST: Where he was

22 sitting.

23 MR. NELSON: The first comment was from Ms.

24 Pennington about where he sat and then next it was by

25 Ms. Bloomquist. Is that right? 8

1 JUROR JENNIFER PENNINGTON: Yes.

2 JUROR MONICA BLOOMQUIST: Yes.

3 THE COURT: Yes, thank you, Mr. Nelson.

4 MR. NELSON: Same thing, Ms. Lisdahl?

5 JUROR DEBORAH LISDAHL: I think it's -- I

6 mean obviously we live in Superior, Wisconsin. The

7 demographics aren't high for black population here so

8 it's assumed I think sometimes.

9 MR. NELSON: Yes. Mr. Carlson?

10 JUROR JED CARLSON: From the newspaper he

11 was black.

12 MR. NELSON: I'm going to put that to the

13 side because I want to talk about some of that stuff

~ 14 but sounds like at least for the relevance to this

15 question was you've seen his picture before?

16 JUROR JED CARLSON: Yes.

17 MR. NELSON: That's what had your thought?

18 JUROR JED CARLSON: Yes.

19 MR. NELSON: Anybody else here seen his

20 picture before?

21 JUROR DUSTIN HALVORSON: It's not the

22 picture. It was just the --

23 MR. NELSON: Can you share your thoughts on

24 that?

25 JUROR DUSTIN HALVORSON: My only thought is 9

1 just he's the only one not wearing a coat.

2 MR. NELSON: I thought of that too. I

3 thought should have put him in a coat.

4 JUROR DUSTIN HALVORSON: It's not clothes.

5 Just that he wasn't wearing --

6 MR. NELSON: Thank you, Mr. Halvorson. I

7 spoke over you there.

8 JUROR DUSTIN HALVORSON: -- a coat. That's

9 okay.

10 MR. NELSON: There was another hand up.

11 JUROR RAYMOND BELANGER: My hand was up but

12 I seen the picture.

13 MR. NELSON: You saw the picture?

~ 14 JUROR RAYMOND BELANGER: Yes.

15 MR. NELSON: Okay, thank you Mr. Belanger.

16 Anybody else saw his picture before? Mr. Bloomquist,

17 Ms. Robinson, you raised your hand as well?

18 JUROR PATRICIA BRANLEY: I didn't see a

19 picture, but I believe he's come into my store as a

20 customer a couple of times.

21 MR. NELSON: Okay.

22 THE COURT: Ms. Branley.

23 MR. NELSON: Thank you, judge. Anything

24 about -- the people who raised their hand regarding

25 seeing his picture before at all think that is going to 10

1 play a part in whether you can sit here and talk about

2 the case? I shouldn't say that. You're going to listen

3 to the case and then eventually you're going to go and

4 deliberate. Anything about that picture, Mr.

5 Bloomquist, that you can remember about what your

6 thoughts were when you saw the picture?

7 JUROR PETER BLOOMQliIST: (Shakes head from

8 side to side.)

9 MR. NELSON: Does he look like what he did

10 in the picture?

11 JUROR PETER BLOOMQUIST: Yeah.

12 MR. NELSON: Okay. Mr. Belanger, does he

13 look like what he looked like in the picture?

~ 14 JUROR RAYMOND BELANGER: Yes, yes.

15 MR. NELSON: Mr. Halvorson, does he look

16 like what he did in the picture?

17 JUROR DUSTIN HALVORSON: I didn't see him in

18 the picture. I was just stating about the coat. That

19 was all.

20 MR. NELSON: Mr. Strong?

21 JUROR ROBERT STRONG: What picture exactly

22 are you talking about?

23 MR. NELSON: Let me follow-up. That's a

24 very good point. Thank you. Did you see a picture in

25 the newspaper, Mr. Bloomquist? 11

1 JUROR PETER BLOOMQUIST: On-line.

2 MR. NELSON: So the digital version of the

3 newspaper, right?

4 JUROR PETER BLOOMQUIST: (Nods head up and

5 down. )

6 MR. NELSON: You need to verbally say yes or

7 no.

8 JUROR PETER BLOOMQUIST: Yes.

9 MR. NELSON: Thank you. Mr. Belanger?

10 JUROR RAYMOND BELANGER: Yes.

11 MR. NELSON: Anybody else see a different

12 picture on TV? Okay, Mr. Strong, any follow-up on that?

13 JUROR RAYMOND BELANGER: In my personal

~ 14 case, they made me look really bad. In the criminal 15 case pictures like my mug shot, most terrible picture I

16 ever saw. Made me look really bad.

17 MR. NELSON: So following up on that,

18 anybody who saw the picture have any concerns about his

19 appearance in the picture in any way? Okay. What do

20 you think is the risk for an innocent black man if his

21 lawyer doesn't ask about risk? Anybody think there's a

22 risk if I don't talk about race? Ms. Robinson, you're

23 nodding your head?

24 JUROR JANELLE ROBINSON: You might have some

25 racist people on the panel that you didn't know about it ~ 12

1 if you didn't talk about it.

2 MR. NELSON: Okay, thank you for sharing

3 that.

4 JUROR RAYMOND BELANGER: Is he an American?

5 MR. NELSON: Is Mr. Johnson American?

6 JUROR RAYMOND BELANGER: Yeah.

7 MR. NELSON: Can I answer that, judge?

8 THE COURT: Sure.

9 MR. NELSON: Yes, he is an American.

10 JUROR RAYMOND BELANGER: Why the questions

11 then because, hey, we're all Americans, right, except

12 maybe my --

13 MR. NELSON: We'll get into that but you do

~ 14 have to be a citizen to sit on the jury. I'm assuming

15 you're an American citizen?

16 JUROR RAYMOND BELANGER: Yes. I'm American,

17 native American.

18 MR. NELSON: All right, I appreciate you

19 sharing that. So maybe going back to your first comment

20 about that which was perhaps a rhetorical question.

21 Why does all this stuff matter if we're just all

22 Americans?

23 JUROR RAYMOND BELANGER: That's right.

24 MR. NELSON: And I appreciate that and I

25 hope that that's the case and I remember when the judge 13

1 had all of you stand up and said, you know, the pledge

2 with liberty and justice for all. That's what you're

3 saying, right?

4 JUROR RAYMOND BELANGER: That's right.

5 MR. NELSON: My worry is I have to talk

6 about it but if I talk about it too much somebody is

7 going to think I'm playing the race card. Does that

8 make sense?

9 UNIDENTIFIED JUROR: Right.

10 MR. NELSON: So I want to ask a couple more

11 questions about that issue, about his being the only

12 black person here in the courtroom. Has anybody heard

13 the expression, judge a book by its cover? I see some

14 hands. Anybody want to share what they think that

15 means?

16 Ms. Schultz, I think you raised your hand

17 behind Mr. Carlson. What does that mean, shouldn't

18 judge a book by its cover?

19 JUROR SALLY SCHULTZ: By looking at the

20 cover you don't really know what's on the inside.

21 MR. NELSON: Okay. Anybody had their cover

22 judged before? Mr. Strong is raising his hand. Mr.

23 Halvorson is raising his hand. Nobody else? Anyone

24 ever been judged by being old?

25 JUROR SHERRY MATTSON: Right here. 14

1 MR. NELSON: Anyone been judged by being

2 young? Okay. So, Ms. Mackey?

3 JUROR KELLY MACKEY: Yes.

4 MR. NELSON: You raised your hand?

5 JUROR KELLY MACKEY: Yes.

6 MR. NELSON: How were you judged?

7 JUROR KELLY MACKEY: Well, perfect example.

8 Kelly Mackey doesn't look Asian at all.

9 MR. NELSON: You're Asian dissent?

10 JUROR KELLY MACKEY: Yes.

11 MR. NELSON: You've been judged by that

12 cover before?

13 JUROR KELLY MACKEY: Yes.

14 MR. NELSON: How did that make you feel?

15 JUROR KELLY MACKEY: Well we joke about it.

16 THE COURT: Ever get mistaken for being a

17 man?

18 JUROR KELLY MACKEY: No.

19 THE COURT: Kelly Thimm.

20 JUROR KELLY MACKEY: Mistaken for being

21 Irish.

22 THE COURT: Sorry.

23 MR. NELSON: That's all right. I've got a

24 follow-up question but I won't ask it. Okay, there was

25 some other hands up for people. Thank you for sharing 15

1 that, Ms. Mackey. Some other people, their cover has

2 been judged. Anybody else? Mr. Koski?

3 JUROR JEREMY KOSKI: I lived in New Mexico.

4 I was at a party once and some kid -- well wasn't a kid.

5 He was an adult. He was really drunk. Got new bullets

6 for his gun on Christmas. He went out back, shot a

7 couple rounds. Well the Indian Police Department showed

8 up. They grabbed me, pulled me out. Walked me past the

9 canine unit, animals barking, going crazy. Then they

10 put me in the back of the car, said that I was shooting

11 the gun. They could smell the residue on my hand, and

12 then they told me that the Mexicans were going to rub my

13 white ass.

14 MR. NELSON: How did you feel about that?

15 JUROR JEREMY KOSKI: I was pretty scared.

16 MR. NELSON: Scary thought, right?

17 JUROR JEREMY KOSKI: (Nods head up and

18 down. )

19 MR. NELSON: I appreciate you sharing that,

20 Mr. Koski. I might get back to you. There's a lot of

21 information so I'm going to jump around and come back to

22 you. Is that all right?

23 JUROR JEREMY KOSKI: (Nods head up and

24 down. )

25 MR. NELSON: Thank you for sharing that. 16

1 Anybody else who has had some -- Mr. Strong?

2 JUROR RAYMOND STRONG: I've been judged

3 because of my long hair. I'm a mechanic. I'm

4 constantly dirty. When they see me, oh, he looks dirty,

5 long hair. I went into the food industry for a little

6 while in between being a mechanic. I dressed clean and

7 people acted totally different toward me. I could

8 notice the difference the first day I cut my hair.

9 MR. NELSON: How did that make you feel?

10 JUROR RAYMOND STRONG: Pretty bad because

11 I'm the same person once they get to know me. I'm not a

12 bad person. I always get the stereotype because I'm

13 dirty, I'm a mechanic, and I have long hair.

14 MR. NELSON: My father does the same thing

15 and I've seen people ignore him for the same reasons and

16 it hurts. Anybody else been judged by their cover? Ms.

17 Bloomquist?

18 JUROR MONICA BLOOMQUIST: My husband and I

19 used to ride motorcycles. We would wear the leather.

20 People judge you.

21 MR. NELSON: Tattoos?

22 JUROR MONICA BLOOMQUIST: Well, yeah. I'm

23 just saying people look at it and they make a judgment.

24 MR. NELSON: How did that make you feel?

25 JUROR MONICA BLOOMQUIST: I have enough ~- 17

1 confidence in myself.

2 MR. NELSON: I would guess sometimes we want

3 to be judged by that cover, right?

4 JUROR MONICA BLOOMQUIST: Possibly.

5 MR. NELSON: I mean there's things that we

6 might do to enhance the cover in hoping to be judged and

7 sometimes when we don't want it, it's the other way.

8 Does that make sense? Sounds like people -- how is that

9 going to impact your ultimate decision making in this

10 case if we make judgments on covers because that's what

11 we do here with human beings? How is that going to

12 impact this case? How can you reconcile that with the

13 judge's instructions about looking at only the evidence?

14 Anybody have an idea? Mr. Halvorson?

15 JUROR DUSTIN HALVORSON: Are you trying to

16 kind of maybe hinting at if somebody came in wearing a

17 jumpsuit in all orange and he was saying something just

18 because he's a criminal or did criminal activities or

19 things like that?

20 MR. NELSON: I wasn't hinting at anything.

21 Appreciate your answer. That might be a factor in the

22 case, yes. That's certainly an example of maybe in this

23 case somebody's cover might be judged, sure. I could go

24 on and list but now is not the time for me to list those

25 because I'm not -- this isn't the time to argue, but I 18

1 just wanted to know how you would reconcile that with

2 the judge's orders before we need to put all that aside.

3 Don't worry about sympathy. Just look at the evidence.

4 Can you do that? I see some nodding. I haven't chatted

5 with you yet, Mr. Pezze. I'm going to ask you to tell

6 me about that. How are you going to do that?

7 JUROR JOHN PEZZE: I think if the evidence

8 is out there, it doesn't matter what color this man is.

9 It shouldn't.

10 MR. NELSON: I appreciate that. Two more

11 topics I need to bring up. You might hear some language

12 in this case regarding racial slurs. I'm not going to

13 ask anybody to list them, okay? I don't want we

14 don't need to do that. We all live in America. I

15 suspect most people have heard that. Anybody not know

16 what I'm talking about when I talk about racial slurs

17 regarding African Americans? Just a show of hands.

18 Make me feel better. Yep, I know what you're talking

19 about, Mr. Nelson. How do you feel about people who use

20 racial slurs against African Americans?

21 JUROR PATRICIA BRANLEY: I tell them not to

22 do it.

23 THE COURT: Ms. Branley.

24 JUROR PATRICIA BRANLEY: I confront the

25 person that said something and I say that's not the 19

1 right thing to do.

2 MR. NELSON: Thank you, Ms. Branley.

3 Anybody else join in that, share in that? Ms. Lisdahl,

4 you raised your hand?

5 JUROR DEBORAH LISDAHL: Um-hum.

6 MR. NELSON: Ms. Mattson, you raised your

7 hand?

8 JUROR SHERRY MATTSON: Um-hum.

9 MR. NELSON: Anybody else? Ms. Duffy,

10 anything to add or just solid agreement?

11 JUROR DEBORAH DUFFY: Same, I agree with

12 that.

13 MR. NELSON: Ms. Gaylord, solid agreement?

14 JUROR JESSICA GAYLORD: Um-hum.

15 MR. NELSON: Anyone else? All right, Mr.

16 Pezze? Did I pronounce it correctly?

17 JUROR JOHN PEZZE: Yes.

18 MR. NELSON: Mr. Pezze. Anybody else?

19 Anybody think that's okay? Ms. Bloomquist, are you

20 answering that question?

21 JUROR MONICA BLOOMQUIST: No, the question

22 before. I don't know that I've ever had anyone use

23 racial slurs in front of me. I just -- where I work,

24 people I live with, I mean it's just not there.

25 MR. NELSON: Not in your world? 20

1 JUROR MONICA BLOOMQUIST: Not there.

2 MR. NELSON: That's a good world. Anybody

3 else share in that? Live in that same world that Ms.

4 Bloomquist lives in where it's not come up before? At

5 least personally I would imagine you've seen it in

6 entertainment or media of some sort?

7 JUROR MONICA BLOOMQUIST: Yes.

8 MR. NELSON: Anybody else share that

9 experience that Ms. Bloomquist did that it just never

10 came up, not been around anything like that? Ms.

11 Wallin?

12 JUROR BONNIE WALLIN: Wallin.

13 MR. NELSON: Tell me about that.

14 JUROR BONNIE WALLIN: No, I just agree it's

15 not something I've experienced.

16 MR. NELSON: Okay, thanks for sharing that.

17 Anyone else? Let me ask this. What if you're one of

18 the 12 people that's selected and you're back in the

19 jury room and you're deliberating, and one of your

20 fellow jurors brings up racial slurs, color, something

21 that you think is inappropriate and shouldn't be brought

22 in to the justice system in America. What are you going

23 to do about it? Anybody have an idea what you could do

24 about it? Ms. Pennington?

25 JUROR JENNIFER PENNINGTON: Speak to the ~ 21

1 court official.

2 MR. NELSON: I think you could. That would

3 be a good idea. Who here would be willing to do that if

4 that came up? Who's the court official you should

5 probably ask? Okay. Everybody agree if something like

6 that happened they'll send a note to the judge to let

7 him know? I just need to see a show of hands. If

8 that's not, that's fine. Mr. Pettit?

9 JUROR KENNETH PETTIT: Pettit.

10 MR. NELSON: Pettit, I'm sorry.

11 JUROR KENNETH PETTIT: I fell asleep. I

12 didn't hear the question.

13 MR. NELSON: Okay, I appreciate your honesty

14 with that. The question was -- did you hear the

15 question or

16 JUROR KENNETH PETTIT: No.

17 MR. NELSON: The question was if somebody

18 brought up racial inappropriate racial comments or

19 bias or prejudice in the jury deliberation room, would

20 you agree that you would send a note to the judge to let

21 the judge know that something bad is going on back here

22 in deliberation?

23 JUROR KENNETH PETTIT: Yeah.

24 MR. NELSON: I appreciate that. Judge,

25 that's my one race topic. I'm going to move on to some 22

1 other things. Do you want me to go through lunch? I'll

2 go until you tell me to stop.

3 THE COURT: I mean my comment is I wonder if

4 we're better off getting things done prior to lunch and

5 then we can take a longer break, et cetera; but if

6 you're going to go on for two hours, that's not going to

7 work.

8 MR. NELSON: I don't plan to. My goal will

9 be to end at 1 o'clock.

10 THE COURT: One o'clock. I just have a lot

11 of issues to follow-up on and to cover. That puts us in

12 an odd position to do it. I understand how much time

13 you're going to take but

~ 14 MR. NELSON: Trying to be as honest as

15 possible.

16 THE COURT: Why don't we go for a little

17 while and see where we're at.

18 MR. NELSON: I was looking at my notes while

19 sometimes we do that, multitask. Wasn't the best

20 listener but there was one other question on racial

21 hoaxing in which a white person blames a black person

22 for a crime that a white person -- that they themselves

23 did. Anybody heard of that instance, a case in North

24 Carolina that it was a bunch of black guys? Anybody?

25 Ms. Schultz, you're nodding your head. Mr. Koski, ,t1""\, 23

1 you're raising your hand and, Ms. Gaylord, the same as

2 well. I think there was a case in Milwaukee when I was

3 in law school in which a man did horrible crimes to his

4 wife and blamed some black people. Anybody hear about

5 that case? Anybody? Ms. Schultz, or, Ms. Gaylord, why

6 do you think that happens, the racial hoaxing? Why

7 would somebody blame a black guy?

8 JUROR SALLY SCHULTZ: Because they feel that 9 people will believe what they've said because of 10 stereotyping.

11 MR. NELSON: Okay. In both of those cases, 12 did it work for a little while?

13 JUROR SALLY SCHULTZ: I'm not familiar with

~ 14 the second case but the first one it was.

15 MR. NELSON: Okay. Mr. Koski, did you have

16 your hand up for that?

17 JUROR JEREMY KOSKI: I just remember -- I

18 don't remember where but didn't some lady kill her kids

19 and say that a black guy did it?

20 MR. NELSON: I think so. The case was in

21 North Carolina or South Carolina. Smith maybe.

22 UNIDENTIFIED JUROR: Susan Smith.

23 MR. NELSON: Yes, thank you. Susan Smith.

24 Does that seem -- Ms. Gaylord, same question to you.

25 Does that make sense why somebody would blame a black ~ 24

1 person in that case because it might be that people will

2 believe it?

3 JUROR JESSICA GAYLORD: From that mindset I

4 suppose that's reasonable, yeah.

5 MR. NELSON: Okay. Not a healthy mindset.

6 JUROR JESSICA GAYLORD: Right.

7 MR. NELSON: What protections do you think

8 the justice system has against that sort of racial

9 hoaxing or prejudice? Ms. Pennington?

10 JUROR JENNIFER PENNINGTON: Jury trial.

11 MR. NELSON: Tell me more about that.

12 JUROR JENNIFER PENNINGTON: You can't just

13 say someone is guilty of something without having to

14 have to prove it.

15 MR. NELSON: A jury of 12 people in the

16 United States of America can probably see through

17 something shallow like that. Does that make sense?

18 Anybody?

19 JUROR PEGGY MCDERMOTT: I think it's the

20 biggest part of the problem is a lot of times when

21 there's a crime committed and that it normally, you

22 know, it's usually a black person the majority of the

23 time and that's why people, you know, are kind of like

24 that they're figuring, okay, crime committed. They're

25 going to be a different color. You know what I'm 25

1 saying?

2 MR. NELSON: Okay. Ms. McDermott, right?

3 JUROR PEGGY MCDERMOTT: Yeah.

4 MR. NELSON: There was a bunch of

5 information in there. Thank you for sharing that.

6 Wasn't sure if I heard it correctly so I want to ask

7 some follow-ups. Do you want to explain it?

8 JUROR PEGGY MCDERMOTT: Well I'm just

9 saying, you know, a lot of times when there is a crime

10 committed the first thing a lot of people think is,

11 okay, black person did that because a lot of times

12 majority of the time it is a black person that has done

13 that. I'm not saying -- there's good and bad in any

14 race. I'm not saying, you know, that they're all bad or

15 whatever but that seems to be the big issue in a lot of

16 the cases.

17 MR. NELSON: Okay. Thank you for sharing

18 that. So sounds like it's your belief that African

19 Americans, blacks, commit more crimes than whites?

20 JUROR PEGGY MCDERMOTT: It's not my belief.

21 It's just, you know, kind of what you see on TV and in

22 the news.

23 MR. NELSON: Okay. Probably three different

24 parts to that. So if you're seated, starts getting hot

25 -- I appreciate you're saying this with us. I imagine 26

1 it's uncomfortable. Is it okay if I follow-up and ask

2 some more questions?

3 JUROR PEGGY MCDERMOTT: I suppose.

4 MR. NELSON: Okay. To me there's three

5 different categories. Category of your belief. There's

6 a category of what the media presents to us, and then

7 there's the category of just hard evidence, right?

8 JUROR PEGGY MCDERMOTT: Yeah.

9 MR. NELSON: And so I'm just trying to

10 figure·out whether you said that. Was that your belief?

11 Was that the media or was it that hard evidence?

12 JUROR PEGGY MCDERMOTT: Like I said, I think

13 there's good and bad in any race. I don't care what

14 color you are.

15 MR. NELSON: Sure.

16 JUROR PEGGY MCDERMOTT: And that you think

17 so.

18 MR. NELSON: I appreciate your sharing it.

19 Thanks, Ms. McDermott. Anybody else? Anybody here

20 ever heard the term, patsy? P-a-t-s-y, patsy? All

21 right, Ms. Hanson, we haven't heard from you. Tell me.

22 You raised your hand. What does patsy mean?

23 JUROR MARIE HANSON: Well to me it would be

24 shifting the blame onto somebody who may be more

25 culpable and may be not be able to defend themselves as ~ 27

1 well.

2 MR. NELSON: Okay. All right. Did

3 everybody hear what she said, her idea of patsy?

4 Somebody that gets the blame shifted onto them. They're

5 perhaps an easy target, would that be fair?

6 JUROR MARIE HANSON: Easier target, yes.

7 MR. NELSON: Is that a fair summary of your

8 words?

9 JUROR MARIE HANSON: Um-hum.

10 MR. NELSON: Thank you, Ms. Hanson. Anybody

11 think that a patsy is something different than that?

12 Sounds like everybody will agree we know what a patsy

13 is, okay? Anybody ever come across a situation in

14 which they've been aware in which a patsy was blamed or

15 used? Mr. Halvorson, you raised your hand?

16 JUROR DUSTIN HALVORSON: Yeah, blame it on

17 the dog because he smells so bad.

18 MR. NELSON: That's a great example. Thank

19 you, Mr. Halvorson. All right, anybody else had that

20 where they've seen somebody blame the dog? Okay, any

21 other perhaps times in which a human being was the

22 patsy? Anybody have a situation? Mr. Pezze?

23 JUROR JOHN PEZZE: Yeah, the Kennedys.

24 MR. NELSON: Tell me more about that.

25 JUROR JOHN PEZZE: Well there's a theory 28

1 that it was somebody else that did the shooting, and he

2 was the patsy, Lee Harvey Oswald was the patsy.

3 MR. NELSON: Okay, that gets into some of

4 the things that Mr. Blank was talking about, conspiracy,

5 right?

6 JUROR JOHN PEZZE: Right.

7 MR. NELSON: Okay. I'm going to put that --

8 that's a whole other topic of questions. That's a good

9 example. Thanks for sharing that. Anybody else have an

10 example of which they've heard of a patsy, even a

11 popular TV show or movie or anything? All right, thank

12 you.

13 Mr. Halvorson kind of maybe alluded to it.

14 Anybody here been blamed or maybe this is the opposite

15 of Mr. Halvorson. Anybody here ever been blamed for

16 something they didn't do? Mr. Strong, Mr. Koski, Ms.

17 Pennington, Ms. Lisdahl, Ms. Schultz. Those are the

18 only five people with brothers or sisters? Everybody

19 had the experience in which they've been blamed for

20 something they didn't do? Maybe a spouse? Maybe a

21 brother, maybe a sister, a cousin, a kid at school?

22 Anybody not had that experience? Anybody have something

23 they want to share about that experience? I know we've

24 heard from you, Mr. Strong. I'm not trying to limit but

25 we've heard some of that so I appreciate that, and I 29

1 know we heard from Mr. Koski about some of that, and

2 we'll get into that. Anybody other than Mr. Koski and

3 Mr. Strong who have been in a situation where they've

4 been blamed for something they didn't do? Mr.

5 Halvorson?

6 JUROR DUSTIN HALVORSON: Just recently

7 somebody said that I -- it was from our household that

8 slit somebody's tire but then they -- it was actually a

9 neighbor but then he -- I think come to find out after

10 he got his tire replaced there was something stuck in

11 his tire so he apologized, but he thought just because

12 his ex moved into the house and they were arguing, it

13 was because of that happening.

14 MR. NELSON: So there was a rare opportunity

15 in which you were to prove your innocence, right?

16 JUROR DUSTIN HALVORSON: Right.

17 MR. NELSON: Anybody else been in a

18 situation where they've been blamed for something they

19 didn't do and they were actually able to prove their

20 innocence? Anybody else been able to do that? Ms.

21 Mackey, you' re nodding your head?

·22 JUROR KELLY MACKEY: Well I work in a

23 business off ice and I need florists and I would be told,

24 oh, you know, you said to send certain things and I

25 would tell them, no, no, no, I didn't say that and there 30

1 are times when I could have e-mails that prove that this

2 is what was said and this was agreed upon.

3 MR. NELSON: Thank you for sharing that.

4 Were there some other times when it was -- you weren't

5 able to prove it?

6 JUROR KELLY MACKEY: Yes.

7 MR. NELSON: Okay. Mr. Koski, I want to ask

8 you some more questions about your situation. It looked

9 like you were looking to raise your hand. Were you able

10 to eventually prove your innocence of that, what you

11 were blamed for originally?

12 JUROR JEREMY KOSKI: The guy finally

13 admitted that he shot the gun.

~ 14 MR. NELSON: The real shooter actually 15 said, I shot it?

16 JUROR JEREMY KOSKI: But they were trying to

17 get me to -- he was saying that I was a drug dealer,

18 that I had money in my wallet. Everyone was saying I

19 was a drug dealer. I was just scared.

20 MR. NELSON: Scared for a while I guess?

21 JUROR JEREMY KOSKI: Yeah.

22 MR. NELSON: When that happened, did you

23 talk to the police about your side of the story?

24 JUROR JEREMY KOSKI: I was trying to but he

25 just kept saying he knows it's me and all this. r1"i. 31

1 MR. NELSON: Okay. Anybody been in a

2 situation -- in that situation? The real shooter in

3 your case, what was the consequence to the real shooter

4 when they finally came forward and said, yes, I'm the

5 one that did the shooting. What was the consequence to

6 that shooter?

7 JUROR JEREMY KOSKI: He got hauled off to

8 jail. I'm not sure. I moved back here shortly after

9 that.

10 MR. NELSON: Do you know, was that shooter

11 confronted with evidence before he came forward and

12 admitted?

13 JUROR JEREMY KOSKI: I think that was in a

~ 14 span of maybe an hour. I don't know how long I was in

15 the cop car for.

16 MR. NELSON: If that bullet in your case had

17 hit somebody and hurt them, do you think the real

18 shooter would have came forward and taken responsibility

19 for shooting the gun if they'd been in prison for the

20 rest of their life?

21 JUROR JEREMY KOSKI: No, depends on the

22 conscience of that person.

23 MR. NELSON: Depends on the conscience of

24 that person, right? Anybody been a situation in which

25 perhaps somebody is blamed for it and you're not able to ~ 32

1 prove your innocence? You can just raise doubt because

2 you can't prove it. Anybody ever been in that

3 situation?

4 JUROR ROBERT STRONG: Repeat that.

5 MR. NELSON: Has anybody ever been in a

6 situation in which they were not able to prove their

7 innocence? You just couldn't but you could raise doubt?

8 Anybody been in that situation? Just a show of hands.

9 Imagine a situation in which that would take place.

10 Anyone want to tell me about what they imagine? Mr.

11 Carlson, your hand is up.

12 JUROR JED CARLSON: I would imagine if you

13 were -- if somebody said that you did what happened and

14 you can't really ~rove that you were there if nobody saw

15 you there.

16 MR. NELSON: Okay.

17 JUROR JED CARLSON: So that would be

18 difficult to prove.

19 MR. NELSON: So you bring up what is I think

20 commonly thought of as a legal term, an alibi?

21 JUROR JED CARLSON: Yeah.

22 MR. NELSON: All right. It might be hard to

23 prove an alibi if there's no witnesses to your alibi,

24 right?

25 JUROR JED CARLSON: Yes. 33

1 MR. NELSON: Do you ever spend time alone?

2 JUROR JED CARLSON: Yes.

3 MR. NELSON: Who here has never been alone?

4 Anybody? No, okay. Any other situation in which you

5 could imagine you couldn't prove your innocence? Judge

6 talked about it. Mr. Blank talked about it. What are

7 some protections that we have built into our justice

8 system in order to solve that problem that we've just

9 been talking about? Mr. Halvorson?

10 JUROR DUSTIN HALVORSON: This here being a

11 jury.

12 MR. NELSON: A jury, right?

13 JUROR DUSTIN HALVORSON: (Nods head up and

~ 14 down. )

15 MR. NELSON: That's one of the protections.

16 Twelve people get to decide it. What's another

17 protection built within the system that might be to

18 protect against your needing to prove your innocence?

19 Mr. --

20 JUROR JOHN PEZZE: Pezze.

21 MR. NELSON: Pezze.

22 JUROR JOHN PEZZE: A person accused is

23 innocent until proven guilty.

24 MR. NELSON: Okay. I like to think innocent

25 unless proven guilty, right? Does that protection make ~ 34

1 sense to everybody? Okay, there is -- I need to have

2 just a brief example here.

3 THE COURT: Maybe now is a good time for a

4 break.

5 MR. NELSON: That's fine, judge. Just quick

6 example but now is fine. You're in charge.

7 THE COURT: How much longer?

8 MR. NELSON: Thirty minutes.

9 THE COURT: Okay. I think that's a little

10 longer. I can hear stomachs growling from here. So

11 we'll take we'll take a recess. We'll reconvene

12 here. I want to give everybody a little break. I know

13 it's been a long morning already. We'll reconvene at

~ 14 1:30 back here. Please take your spots. Unfortunately,

15 you're on your own for lunch. One of the things with

16 budgets and everything else there's nothing really

17 provided. The only thing that we've got is the

18 fortunate 13 that make it, we have made some bars for

19 you but that's not going to be until we've gone through

20 this process which isn't quite done yet.

21 All I can do is inform you you can't discuss

22 the case. Don't start talking with one another about

23 anything that we've talked about here today. Talk about

24 the weather. Talk about children. Don't start

25 d .i s cu s s in g i t . Don't start talking about what the ~. JUROR QUESTIONNAIRE The information you provide in this questionnaire will be confidential and will only be used for this trial. Name: Your employer [if retired/unemployed, What jobs have you held in the past? what & where was your last job]: Marital Status:

Highest grade you completed in school (if What is your job title/duties: Have you ever been responsible for hire, college, please list any degree(s) firing or supervising employees? received):  YES  NO Years employed:

Spouse/partner’s job & where employed Have you ever served as a juror in a: Do you know any police officers or anyone [if retired/unemployed, what & where  Criminal case  Grand Jury in law enforcement? was last job]:  Civil case  Never served  YES  NO If YES, whom do you know and how do you know this person? What kind of criminal case(s)?: What is this person’s job title & duties: What was the verdict?:

Years employed: Were you the foreperson? YES NO Do criminals have too many rights? Do people accused of crimes have too Have you or any of your family/close Please tell us why you feel that way? many rights? Please tell us why you feel personal friends ever been the victim of a that way. crime? If so, please explain:

Racial prejudice still exists in America? Do you believe African Americans use more illegal drugs than whites?  YES  NO Please explain:

0 5 10 Strongly Agree Agree Neutral Disagree Strongly Disagree

A person can be unintentionally biased against African Americans? Please list several African Americans whom you admire and/or respect?

0 5 10 Strongly Agree Agree Neutral Disagree Strongly Disagree

How do you feel when you hear negative What would you do if you were selected Is there any reason why you would be remarks about African Americans? as a juror and during deliberations unwilling/unable to serve as a juror in a another juror made comments about case where an African American is African Americans and/or race? charged with a crime?  YES  NO Please explain:

The answers contained in this questionnaire are true and correct to the best of my ability.

Juror’s Name Date NATIONAL DEFENSE RACE AND ETHNICITY TASK FORCE April 2018

The NATIONAL DEFENSE RACE AND ETHNICITY TASK FORCE seeks to develop and support efforts to apply, implement, and utilize recent research and other information about racial bias in the criminal justice system, and society as a whole, to improve the chances of our clients. The Task Force was formed in early 2017, initiated in part in response to conferences addressing race and the criminal justice system held in recent years. Task Force participants work to operationalize and make "practical" important lessons in this area and to develop strategies that enhance our ongoing defense advocacy and litigation.

We invite defense practitioners who work to combat racial bias in the criminal justice system to participate in the Task Force. We welcome attorneys, mitigation specialists, defense investigators, paralegals, and others, who practice in state and/or federal courts, at trial, appeal and/or post- conviction levels. * * * The Task Force operates through three subgroups:

The Office Issues & Training subgroup identifies issues related to race and ethnicity that may arise in the workplace, and envisions strategies to both increase racial diversity among management, attorneys, and support staff, and create an environment of inclusion and awareness that will best serve staff and clients of all races and ethnicities. Contact: Donetta Bray, [email protected] or Maria Pulzetti, [email protected]

The Community Engagement subgroup is gathering data on various efforts by staff at FPD and state defender offices as well as non-profit capital defense office to engage with their local communities on initiatives related to promoting criminal justice reform and the impact of the criminal justice system on communities of color. Based on that information, this subgroup will develop strategies and make suggestions for new initiatives for offices to consider promoting in local communities. Contact: Genevie Gold, [email protected] or Kandra Roberts [email protected]

The Litigation subgroup is gathering pleadings for a brief bank repository and case roster; identifying sources of information, including materials concerning racial discrimination throughout the criminal justice system; and generating potential topics and experts for future litigation. Based on this information, this subgroup will identify and promote litigation strategies on potentially meritorious issues, with an emphasis in targeted geographical areas. In addition, this subgroup will identify training programs throughout the country and suggest topics and speakers to educate our community on race litigation needs and strategies. Contact: Lindsey Vann, [email protected] or Lynn Ellenberger, Lynn_Ellenberger@fdorg

To join the Task Force and general Task Force email listserv, contact Tanya Greene, [email protected] Each Task Force member is expected to participate in at least one subgroup – contacts for the subgroups are provided above.

List of Race-Neutral Reasons Held to Justify Use of Peremptory Challenge

• The fact that the person was the same age as the defendant. U.S. v. Garrison, 849 F.2d 103, 25 Fed. R. Evid. Serv. 1140 (4th Cir. 1988). • The fact that the person chatted during voir dire, and gave signs of boredom and disdain for the process. U.S. v. Garrison, 849 F.2d 103, 25 Fed. R. Evid. Serv. 1140 (4th Cir. 1988). • The fact that the person was unemployed. U.S. v. Garrison, 849 F.2d 103, 25 Fed. R. Evid. Serv. 1140 (4th Cir. 1988). • The fact that they were young, not meaningfully employed, and had no children or family responsibilities. U.S. v. Lance, 853 F.2d 1177, 26 Fed. R. Evid. Serv. 633 (5th Cir. 1988). • The fact that he was a relative of a police officer who had been laid off for misconduct. U.S. v. Rodrequez, 859 F.2d 1321, 27 Fed. R. Evid. Serv. 158 (8th Cir. 1988). • The fact that she spoke softly and could barely be heard and was palsied. U.S. v. Rodrequez, 859 F.2d 1321, 27 Fed. R. Evid. Serv. 158 (8th Cir. 1988). • The fact that he was not paying attention and was not understanding of what was being said. U.S. v. Rodrequez, 859 F.2d 1321, 27 Fed. R. Evid. Serv. 158 (8th Cir. 1988). • The fact that she was a pharmacist and might form an independent opinion on the narcotics charges. U.S. v. Rodrequez, 859 F.2d 1321, 27 Fed. R. Evid. Serv. 158 (8th Cir. 1988). • The fact that the person had served as a youth supervisor at a penal facility for young persons and would be likely to be overly sympathetic. U.S. v. Briscoe, 896 F.2d 1476, 30 Fed. R. Evid. Serv. 831 (7th Cir. 1990). • The fact that the person had been accused of a crime and had been acquitted. U.S. v. Briscoe, 896 F.2d 1476, 30 Fed. R. Evid. Serv. 831 (7th Cir. 1990). • The fact that the person was an unemployed student and had resided at three addresses close to addresses of scheduled witnesses. U.S. v. Briscoe, 896 F.2d 1476, 30 Fed. R. Evid. Serv. 831 (7th Cir. 1990). • The fact that he had "been unjustly convicted" of a crime and had been denied employment by the federal government. U.S. v. Briscoe, 896 F.2d 1476, 30 Fed. R. Evid. Serv. 831 (7th Cir. 1990). • The fact that he had been a victim of a crime and resented the fact that no one was charged with the crime. U.S. v. Briscoe, 896 F.2d 1476, 30 Fed. R. Evid. Serv. 831 (7th Cir. 1990). • The fact that they were young unmarried people who would be inclined to have a liberal attitude toward drugs. U.S. v. Prine, 909 F.2d 1109 (8th Cir. 1990). • The fact that the juror was employed by a church-affiliated agency making her more inclined to side with the defendant, and the defendant had relied on a church for financial assistance. U.S. v. De La Rosa, 911 F.2d 985 (5th Cir. 1990). • The fact that she was disinterested and inattentive and was reluctant to serve because she worked nights and cared for her small grandchild during the day. U.S. v. Roberts, 913 F.2d 211 (5th Cir. 1990). • The fact that he would not consider a tape recording as evidence. U.S. v. Roberts, 913 F.2d 211 (5th Cir. 1990). • The fact that he was personally acquainted with the defendant and had heard her sing. U.S. v. Roberts, 913 F.2d 211 (5th Cir. 1990). • The facts that the prosecution did not like her background and youthful age and generally preferred men to women on narcotics cases. U.S. v. Hoelscher, 914 F.2d 1527 (8th Cir. 1990). • The fact that she had family members with drug problems, appeared bored and distressed, and didn't know whether she had served on a civil or criminal jury. U.S. v. Hoelscher, 914 F.2d 1527 (8th Cir. 1990). • The fact that he has a prior family involvement with drug charges. U.S. v. Bennett, 928 F.2d 1548 (11th Cir. 1991). • The fact that he lived in the area of the restaurant where the defendant worked. U.S. v. Bennett, 928 F.2d 1548 (11th Cir. 1991). • The fact that there was uncertainty that the allegedly Latino potential juror would accept the interpreter's translation. Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). • The fact that the defendant's counsel had represented her in a previous divorce. U.S. v. Williams, 936 F.2d 1243 (11th Cir. 1991). • The fact that he worked at a hotel whose occupants and employees had been the focus of numerous criminal investigations. U.S. v. Day, 949 F.2d 973 (8th Cir. 1991). • The fact that she was young, had a sporadic employment history, and did not own property and lacked community attachment. U.S. v. Day, 949 F.2d 973 (8th Cir. 1991). • The fact that he was not fluent in English. U.S. v. Alvarado, 951 F.2d 22 (2d Cir. 1991). • The fact that she was a social worker and might be too sympathetic. U.S. v. Alvarado, 951 F.2d 22 (2d Cir. 1991). • The fact that she had children the age of the defendant and might be too sympathetic. U.S. v. Alvarado, 951 F.2d 22 (2d Cir. 1991). • In a prosecution for possession of cocaine, the fact that his brother was addicted to cocaine. U.S. v. Todd, 963 F.2d 207 (8th Cir. 1992). • The fact that she appeared attentive, impatient, and hostile to the prosecutor. U.S. v. Todd, 963 F.2d 207 (8th Cir. 1992). • The fact that the juror's employer was being investigated by federal authorities so that his objectivity might be compromised. U.S. v. Collins, 972 F.2d 1385 (5th Cir. 1992). • The fact that he could lose several weeks pay and blame prosecution. U.S. v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993). • The fact that he had long hair and a beard where defendants were similarly coiffed. U.S. v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993). • The fact that he was not proficient in English, provided the prosecution can convince the court that he in fact had difficulty with English and the challenge was not based on the assumption that a person with a particular name had trouble understanding English. U.S. v. Changco, 1 F.3d 837 (9th Cir. 1993). • The fact that he had experience as a victim of police brutality. U.S. v. Brooks, 2 F.3d 838 (8th Cir. 1993). • The fact that he had a relative in prison on drug charges. U.S. v. Brooks, 2 F.3d 838 (8th Cir. 1993). • The fact that he supplied only the most sketchy information on the juror information form. U.S. v. Brooks, 2 F.3d 838 (8th Cir. 1993). • The fact that the prosecutor was uncertain as to whether allegedly Latino potential jurors would accept the translator's translation. Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). • She was a school teacher, where the prosecutor announced he would strike any teacher, and no teacher was seated. U.S. v. Brown, 289 F.3d 989 (7th Cir. 2002). • Her husband had been convicted of a firearm crime. U.S. v. Brown, 289 F.3d 989 (7th Cir. 2002). • She had testified for the defense at her mother's murder trial. U.S. v. Brown, 289 F.3d 989 (7th Cir. 2002). • The juror appeared to be too "anxious to serve on the panel," and "anybody who really wants to serve on a panel, we're worried about.” U.S. v. Singh, 518 F.3d 236 (4th Cir. 2008).

Selecting a Jury

Voir Dire Examination – General Process and Principles The voir dire process is governed by Fed. R. Crim. P. 24. The scope of voir dire examination and the procedures to be used are matters within the sound discretion of the trial judge and will not be disturbed on appeal unless the procedures used or the questions propounded are so unreasonable or devoid of the constitutional purpose as to constitute an abuse of that discretion. * * * * * Ross v. U.S., 374 F.2d 97, 104 (8th Cir. 1967) U.S. v. Gerald, 624 F.2d 1291 (5th Cir. 1980) U.S. v. McAnderson, 914 F.2d 934, 31 Fed. R. Evid. Serv. 341 (7th Cir. 1990) U.S. v. Noone, 913 F.2d 20, 31 Fed. R. Evid. Serv. 229 (1st Cir. 1990) U.S. v. Guy, 924 F.2d 702 (7th Cir. 1991) U.S. v. Anzalone, 886 F.2d 229 (9th Cir. 1989) Haith v. U.S., 342 F.2d 158 (3d Cir. 1965) Stirone v. U.S., 341 F.2d 253 (3d Cir. 1965) U.S. v. Woods, 364 F.2d 481 (3d Cir. 1966) U.S. v. Rivera-Sola, 713 F.2d 866, 13 Fed. R. Evid. Serv. 1897 (1st Cir. 1983) U.S. v. McDonald, 576 F.2d 1350 (9th Cir. 1978) U.S. v. Myers, 626 F.2d 365 (4th Cir. 1980) Darbin v. Nourse, 664 F.2d 1109, 33 Fed. R. Serv. 2d 154, 72 A.L.R. Fed. 627 (9th Cir. 1981) Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986) U.S. v. Flores, 63 F.3d 1342, 42 Fed. R. Evid. Serv. 1365 (5th Cir. 1995) Reiger v. Christensen, 789 F.2d 1425 (9th Cir. 1986) U.S. v. Guglielmi, 819 F.2d 451 (4th Cir. 1987) U.S. v. Angiulo, 897 F.2d 1169, 29 Fed. R. Evid. Serv. 1011 (1st Cir. 1990) Wicker v. McCotter, 783 F.2d 487, 20 Fed. R. Evid. Serv. 223 (5th Cir. 1986) U.S. v. Peete, 919 F.2d 1168 (6th Cir. 1990) U.S. v. Scarfo, 850 F.2d 1015, 26 Fed. R. Evid. Serv. 30, 93 A.L.R. Fed. 111 (3d Cir. 1988)

New Developments Buck v. Davis, 137 S. Ct. 759, 197 L. Ed. 2d 1 (2017) (holding that “the District Court abused its discretion in denying Buck’s Rule 60(b)(6) motion . . . Buck may have been sentenced to death in part because of his race. . . The statement that ‘it is inappropriate to allow race to be considered as a factor in our criminal justice system’ is equally applicable whether the prosecution or ineffective defense counsel initially injected race into the proceeding) (internal citations omitted) Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017) (holding that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee, abrogating Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786; U.S. v. Benally, 546 F.3d 1230; Williams v. Price, 343 F.3d 223)

Questioning Jurors The examination by counsel of jurors as to their qualifications is conducted under the supervision of the trial court, and the nature and extent of the questions counsel may ask are discretionary with that court. While a wide latitude is allowed counsel in examining jurors on their voir dire, it is important that the trial courts, in the exercise of their discretion, be punctilious in restricting counsel's inquiries to questions which are pertinent and proper for testing the capacity and competency of the juror and which are neither designed nor likely to plant prejudicial matter in his or her mind. If special circumstances make certain questions relevant to show bias or other grounds for a challenge for cause, the court should be informed of the reason for asking such questions. Am. Jur. 2d, Jury § 205. A criminal defendant has the right to a voir dire examination that is broad enough to allow the parties to ascertain the fairness and impartiality of the prospective jurors. Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury. Am. Jur. 2d, Jury § 206. * * * * * Hilliard v. State of Ariz., 362 F.2d 908 (9th Cir. 1966) U.S. v. Bowe, 360 F.2d 1 (2d Cir. 1966) U.S. v. Davis, 583 F.2d 190 (5th Cir. 1978) U.S. v. Jones, 722 F.2d 528 (9th Cir. 1983) 1

There is a conflict in the holdings as to whether it is proper to ask whether the jurors were inclined to give more weight to the testimony of one class of witnesses over another, such as police officers over others or medical doctors over osteopaths. Hinkle v. Hampton, 388 F.2d 141 (10th Cir. 1968); Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 2 Fed. R. Serv. 3d 94 (5th Cir. 1985); Sellers v. U.S., 271 F.2d 475 (D.C. Cir. 1959); U.S. v. Jackson, 448 F.2d 539 (5th Cir. 1971); Chavez v. U.S., 258 F.2d 816 (10th Cir. 1958). Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986) Government of Virgin Islands v. Dowling, 814 F.2d 134, 22 Fed. R. Evid. Serv. 1240 (3d Cir. 1987) U.S. v. Urian, 858 F.2d 124 (3d Cir. 1988) U.S. v. Anzalone, 886 F.2d 229 (9th Cir. 1989) Mu'Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) U.S. v. Moore, 936 F.2d 1508, 33 Fed. R. Evid. Serv. 1345 (7th Cir. 1991) U.S. v. Hirschberg, 988 F.2d 1509, 38 Fed. R. Evid. Serv. 542 (7th Cir. 1993) Mu'Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) U.S. v. Lawes, 292 F.3d 123 (2d Cir. 2002) U.S. v. Summers, 539 Fed. Appx. 877 (10th Cir. 2013)

Questioning About Bias and Racial Prejudice Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973) Ristaino v. Ross, 424 U.S. 589, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976) U.S. v. Robinson, 466 F.2d 780 (7th Cir. 1972) U.S. v. Bowles, 574 F.2d 970 (8th Cir. 1978) U.S. v. Barnes, 604 F.2d 121 (2d Cir. 1979) U.S. v. Rosales-Lopez, 617 F.2d 1349 (9th Cir. 1980), judgment aff'd, Rosales-Lopez v. U. S., 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981) U.S. v. Corey, 625 F.2d 704 (5th Cir. 1980) U.S. v. Toomey, 764 F.2d 678 (9th Cir. 1985) U.S. v. Groce, 682 F.2d 1359, 11 Fed. R. Evid. Serv. 467 (11th Cir. 1982) It was within the trial judge's discretion to refuse to ask prospective jurors whether they believed that a black person was less likely than a white person to tell the truth and whether a black person was more likely than anyone else to commit a crime. U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992). U.S. v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000) Where racial or ethnic bias may be an issue in a case and the defendant requests voir dire on the subject, it is an abuse of discretion to refuse the request. U.S. v. Hosseini, 679 F.3d 544 (7th Cir. 2012), cert. denied, 133 S. Ct. 774, 184 L. Ed. 2d 512 (2012).

Peremptory Challenges – Generally Challenges to the polls may be either: (1) peremptory; or (2) for cause. A peremptory challenge is a challenge to a prospective juror for which no reason need be given or cause assigned. Am. Jur. 2d, Jury § 234; Fed. R. Crim. P. 24. * * * * * There is a wide variety of procedures followed in the various states in the exercise of peremptory challenges. Even within the states, the practices vary from one community to the other. While the tendency is for the federal court to follow the state court practices in the community in which it sits, the federal court is not obligated to do so. Pointer v. U.S., 151 U.S. 396, 14 S. Ct. 410, 38 L. Ed. 208 (1894). Hanson v. U.S., 271 F.2d 791, 60-2 U.S. Tax Cas. (CCH) P 9777, 6 A.F.T.R.2d 5997 (9th Cir. 1959) Frazier v. U.S., 335 U.S. 497, 69 S. Ct. 201, 93 L. Ed. 187 (1948) Pointer v. U.S., 151 U.S. 396, 14 S. Ct. 410, 38 L. Ed. 208 (1894) Carr v. Watts, 597 F.2d 830, 50 A.L.R. Fed. 345 (2d Cir. 1979) Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965) Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) U.S. v. Morris, 623 F.2d 145 (10th Cir. 1980) U.S. v. Severino, 800 F.2d 42 (2d Cir. 1986) U.S. v. Broxton, 926 F.2d 1180 (D.C. Cir. 1991) Knox v. Collins, 928 F.2d 657 (5th Cir. 1991) U.S. v. Turner, 558 F.2d 535 (9th Cir. 1977) U.S. v. Anderson, 562 F.2d 394 (6th Cir. 1977) U.S. v. Durham, 587 F.2d 799 (5th Cir. 1979) U.S. v. Claiborne, 765 F.2d 784, 85-2 U.S. Tax Cas. (CCH) P 9821, 18 Fed. R. Evid. Serv. 1131, 56 A.F.T.R.2d 85- 6264 (9th Cir. 1985) 2

Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2011) U.S. v. Yepiz, 685 F.3d 840 (9th Cir. 2012), cert. denied, 133 S. Ct. 774, 184 L. Ed. 2d 512 (2012) U.S. v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000)

Use of Peremptory Challenge to Exclude Unwanted Juror Federal Courts use a three-step process for evaluating whether the use of a peremptory challenge was based on purposeful discrimination, so as to violate a defendant's equal protection rights. First, the defendant must make a prima facie case of racial discrimination. Second, after such showing is made, the state must suggest a race-neutral explanation for the use of the strike. Third, after a race-neutral reason is offered, the trial court must decide whether the defendant has shown purposeful discrimination. Sanchez v. Roden, 2014 WL 2210574 (1st Cir. 2014); U.S. v. Pratt, 728 F.3d 463 (5th Cir. 2013); Cole v. Roper, 623 F.3d 1183 (8th Cir. 2010), cert. denied, 2011 WL 4530652 (U.S. 2011). The prosecutor's privilege to strike individual jurors through peremptory challenges is subject to the commands of the of the Fourteenth Amendment. Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason at all, so long as that reason is related to the prosecutor's view concerning the outcome of the case to be tried, the Equal Protection Clause of the Fourteenth Amendment forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the prosecution's case against a black defendant. Criminal defendants who claim that they have been denied equal protection of the laws through the prosecution's use of peremptory challenges to exclude members of their race from the petit jury may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendants' trial and need not show repeated instances of such conduct over a number of cases. To establish such a prima facie case, the defendants must first show that they are members of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendants' race. The defendants may rely on the fact that peremptory challenges are a jury-selection practice which allows those who are binded to discriminate to do so. Finally, the defendants must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (holding modified by, Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991)). U.S. v. Sgro, 816 F.2d 30 (1st Cir. 1987) U.S. v. De Gross, 960 F.2d 1433 (9th Cir. 1992) U.S. v. David, 803 F.2d 1567 (11th Cir. 1986) U.S. v. Davis, 809 F.2d 1194, 22 Fed. R. Evid. Serv. 567 (6th Cir. 1987) U.S. v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987) U.S. v. Clemons, 843 F.2d 741 (3d Cir. 1988) U.S. v. Johnson, 873 F.2d 1137 (8th Cir. 1989) The circuits differ as to the procedure to be followed when a defendant has made out a prima facie case of discriminatory use of peremptory challenges. Some approve the ex parte submission of explanations by the government. U.S. v. Davis, 809 F.2d 1194, 22 Fed. R. Evid. Serv. 567 (6th Cir. 1987). Others require the full protection of the adversarial process except where compelling reasons requiring secrecy are shown, but the government must make a substantial showing of necessity to justify excluding the defendant from this stage of the prosecution. U.S. v. Garrison, 849 F.2d 103, 25 Fed. R. Evid. Serv. 1140 (4th Cir. 1988). U.S. v. Montgomery, 819 F.2d 847 (8th Cir. 1987). U.S. v. Biaggi, 853 F.2d 89, 26 Fed. R. Evid. Serv. 414 (2d Cir. 1988) U.S. v. Wilson, 884 F.2d 1121 (8th Cir. 1989) U.S. v. Baker, 855 F.2d 1353, 26 Fed. R. Evid. Serv. 1069 (8th Cir. 1988) U.S. v. Hughes, 864 F.2d 78 (8th Cir. 1988), on reh'g, 880 F.2d 101 (8th Cir. 1989) U.S. v. Davis, 871 F.2d 71 (8th Cir. 1989) U.S. v. Chinchilla, 874 F.2d 695 (9th Cir. 1989) American Indians are a cognizable racial group for purposes of Batson analysis. U.S. v. Iron Moccasin, 878 F.2d 226, 28 Fed. R. Evid. Serv. 499 (8th Cir. 1989). Hispanics are members of a distinctive and identifiable group in the community. U.S. v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989). U.S. v. Moreno, 878 F.2d 817, 28 Fed. R. Evid. Serv. 588 (5th Cir. 1989) Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990) U.S. v. Wilson, 884 F.2d 1121 (8th Cir. 1989) U.S. v. Dobynes, 905 F.2d 1192, 30 Fed. R. Evid. Serv. 658 (8th Cir. 1990) U.S. v. Roberts, 913 F.2d 211 (5th Cir. 1990)

3

The fact that the person might identify too much with the defendant because they were of the same race is not a race-neutral reason. U.S. v. Alcantar, 897 F.2d 436 (9th Cir. 1990). A defendant has no right to a petit jury composed in whole or in part of persons of his own race. Rather, he has a right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. U.S. v. Hatchett, 918 F.2d 631, 90-2 U.S. Tax Cas. (CCH) P 50566, 31 Fed. R. Evid. Serv. 1307, 71A A.F.T.R.2d 93-3994 (6th Cir. 1990). Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) U.S. v. Esparsen, 930 F.2d 1461, 32 Fed. R. Evid. Serv. 1191 (10th Cir. 1991) Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) U.S. v. Clemons, 941 F.2d 321 (5th Cir. 1991) It is proper to exclude black and Hispanic jurors who are young, single, and without children, where other jurors are excluded on the same grounds. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993). It was race neutral for the prosecutor to exercise a peremptory challenge when he perceived that the prospective juror had given him a hostile look, that being the sort of intuitive judgment that a court generally must rely on to exercise in good faith. U.S. v. Jackson, 50 F.3d 1335 (5th Cir. 1995). In analyzing a prosecutor's explanation and race-neutral reasons following a Batson challenge, the district court should determine whether the reasons were legitimate or mere pretenses designed to mask purposeful, racial discrimination. A neutral explanation means an explanation of something other than the race of the juror. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. U.S. v. James, 113 F.3d 721 (7th Cir. 1997). U.S. v. Bartholomew, 310 F.3d 912, 59 Fed. R. Evid. Serv. 1482, 2002 Fed. App. 0396P (6th Cir. 2002) In reviewing the government's race-neutral explanation for using a peremptory challenge to strike a potential juror, for purposes of reviewing a Batson claim, the court need not find that the reason given is persuasive, or even plausible. All that is necessary is that the reason not be inherently discriminatory. U.S. v. Lucas, 357 F.3d 599, 63 Fed. R. Evid. Serv. 653, 2004 Fed. App. 0046P (6th Cir. 2004). In deciding whether the neutral explanation offered by the prosecutor for a challenged peremptory strike is pretextual, the trial court will sometimes have to look beyond the facts of the defendant's case. Although some false reasons are shown up within the four corners of a given case, sometimes the court may not be sure unless it looks beyond the case at hand. When illegitimate grounds like race are an issue, a prosecutor simply has to state his reasons as best he can for exercising peremptory strikes and stand or fall on the plausibility of the reasons that he gives. Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005). Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129, 8 A.L.R. Fed. 2d 849 (2005) Messiah v. Duncan, 435 F.3d 186 (2d Cir. 2006) Lamon v. Boatwright, 467 F.3d 1097 (7th Cir. 2006) U.S. v. Helmstetter, 479 F.3d 750 (10th Cir. 2007) Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010). Garraway v. Phillips, 591 F.3d 72 (2d Cir. 2010), cert. denied, 131 S. Ct. 278, 178 L. Ed. 2d 252 (2010). U.S. v. Heron, 721 F.3d 896 (7th Cir. 2013), cert. denied, 134 S. Ct. 1044, 188 L. Ed. 2d 134 (2014); compare U.S. v. Brown, 352 F.3d 654 (2d Cir. 2003) (Baston extended to strikes based on juror's religious affiliation).

Making and Ruling on Batson Claims of Improper Use of Peremptory Challenge When a Batson challenge is lodged, a three-step burden shifting analysis is used to determine whether peremptory strikes have been exercised in a racially discriminatory manner: (1) the party challenging the strikes must establish a prima facie case that the opposing party exercised peremptory challenges on the basis of race; (2) once a prima facie case is established, the burden shifts to the party exercising the strikes to provide a racially neutral explanation for removing the jurors in question; and (3) once a neutral explanation is presented, the complaining party must prove purposeful discrimination. Sanchez v. Roden, 2014 WL 2210574 (1st Cir. 2014); U.S. v. Pratt, 728 F.3d 463 (5th Cir. 2013). U.S. v. Thomas, 303 F.3d 138 (2d Cir. 2002) Williams v. Runnels, 432 F.3d 1102 (9th Cir. 2006). A comparative juror analysis involves comparing the characteristics of a struck juror with the characteristics of other potential jurors, particularly those jurors whom the prosecutor did not strike. U.S. v. Collins, 551 F.3d 914 (9th Cir. 2009). Reed v. Quarterman, 555 F.3d 364 (5th Cir. 2009) U.S. v. White, 552 F.3d 240 (2d Cir. 2009) McGahee v. Alabama Dept. Of Corrections, 560 F.3d 1252 (11th Cir. 2009) Puckett v. Epps, 641 F.3d 657 (5th Cir. 2011), cert. denied, 132 S. Ct. 1537, 182 L. Ed. 2d 174 (2012). Avichail ex rel. T.A. v. St. John's Mercy Health System, 686 F.3d 548 (8th Cir. 2012) 4

Black v. Workman, 682 F.3d 880 (10th Cir. 2012), petition for cert. filed (U.S. Apr. 29, 2013) Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008) U.S. v. Cruse, 805 F.3d 795, 98 Fed. R. Evid. Serv. 1115 (7th Cir. 2015) Shirley v. Yates, 807 F.3d 1090 (9th Cir. 2015) Sifuentes v. Brazelton, 825 F.3d 506 (9th Cir. 2016) Davis v. Ayala, 135 S. Ct. 2187, 192 L. Ed. 2d 323, reh'g denied, 136 S. Ct. 14, 192 L. Ed. 2d 983 (2015) Foster v. Chatman, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (2016)

Federal Trial Handbook: Criminal (4th ed.)

5