Washington Conviction Reversed Due to Juror’s “Actual Bias”

Washington criminal defendants are guaranteed a trial by an impartial jury under both the state and federal constitutions. The trial court should excuse a potential juror if the performance of their duties as a juror would be prevented or substantially impaired by their views.  Actual bias is a basis of a for-cause challenge by either party. Actual bias occurs when the prospective juror’s state of mind that would prevent them from trying the issue impartially without prejudice to the challenging party. RCW 4.44.170.  If a juror with actual bias is seated, the error is not harmless and requires a new trial.  A defendant recently appealed his murder convictions, arguing the court erred in seating a juror with actual bias.

A young Canadian couple was killed while traveling to Seattle in 1987.  Their bodies were discovered in different counties.  A DNA profile was developed from DNA retrieved from the woman’s body and clothing.  The male victim was excluded as the source of that DNA. According to the appeals court’s opinion, the defendant was identified as a potential source of the DNA profile in 2018 through genealogy matching. The defendant’s DNA was matched to the profile from the female victim’s pants and body after undercover officers collected a coffee cup he discarded.

The state charged the defendant with two counts of first degree aggravated murder. In an individualized inquiry, a potential jury expressed uncertainty she could be fair. She thought the topics and evidence may be difficult for her because of her own traumatic experiences in the past.  The defendant moved to dismiss the juror for cause, but the trial court denied the motion.  That potential juror was seated on the jury.

The state’s theory at trial was that the female victim was raped and then murdered. Evidence included graphic photos of the victim’s bodies, the crime scenes, and the autopsies. There was testimony regarding the forensic evidence, including the vaginal swab.

The jury found the defendant guilty of the charges.  He was sentenced to life in prison without the possibility of parole. He appealed, arguing he was denied the right to an impartial jury due to the seating of a juror who expressed actual bias.

The state argued the defendant waived the issue because he had not exhausted his peremptory challenges after his challenge for cause was denied.  The appeals court noted it had decided in a previous case that this type of waiver argument was incorrect and rejected the state’s argument.

The defendant argued the juror had expressed actual bias and that she was not rehabilitated through additional questioning.  The state agreed she had expressed actual bias, so the issue before the appeals court was whether there was rehabilitation.

The appeals court considered federal case law from the Ninth Circuit. The Ninth Circuit has rejected the argument that equivocal answers to questions about the juror’s ability to be fair are sufficient to rehabilitate the juror’s actual bias. The facts surrounding the juror were similar to those in U.S. v. Kechedzian and U.S. v. Gonzalez. The juror expressed concern she may not be able to be impartial due to her personal experiences.  She was asked multiple times if she thought she could be impartial, and responded with equivocal answers each time. When asked if she could set aside her experiences and reach a conclusion based on the evidence, she stated, “I could try.” The state relied on these equivocal answers when asked to identify where in the record the juror was rehabilitated.  The appeals court noted that the evidence at trial included the specific concerns raised by the juror – graphic photographs and violence against a young woman.

The state argued Ninth Circuit case law should not apply due to differences in Washington state case law.  The appeals court noted that federal law guides the minimum standards and that the federal constitution is implicated in issues involving the right to a fair trial.  Seating and allowing a biased juror to deliberate violates the federal constitution.

The juror’s last responses indicated an uncertainty of the juror’s ability to be fair and set aside her bias. The appeals court could not find the juror was sufficiently rehabilitated to allow the defendant a fair and impartial jury. Any doubts as to the juror’s bias should be resolved against the juror.  The appeals court therefore found the trial court erred in denying the defendant’s for-cause challenge of the juror. The appeals court reversed.

If you are facing criminal charges, a skilled Washington criminal defense attorney can fight to protect your rights.  Set up an appointment with Blair & Kim, PLLC, by calling our office at (206) 622-6562.


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