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Ninth Circuit Holds Juror Who Wouldn’t Unequivocally State She Could Be Impartial Should Have Been Excused; New Trial Ordered Because Biased Juror Can’t Be Harmless Error

by Dale Chappell

In a case where a juror did not unequivocally state that she could be unbiased because she had previously been a victim in a similar crime, the U.S. Court of Appeals for the Ninth Circuit held that the juror should have been excused for actual bias and that the error required a new trial. 

Koren Kechedzian was charged with possession of unauthorized access devices (counterfeit credit cards) and aggravated identity theft after police dug through his trash and found evidence of the crimes. He took his case to trial. 

During jury selection, the court asked potential jurors, “Does anyone feel that they could not be fair and impartial to both sides?” Juror #3 raised her hand and responded that she had her Social Security number stolen five years earlier, and “I might be able to put that aside and just go by what I hear in the courtroom.” The judge paused, “‘Might’ is a significant word. Let’s follow up with it a little bit.” 

After further questioning, Juror #3 stated, “Well, I would want to put my personal stuff aside, but I honestly don’t know if I could.” The judge wrapped up with, “So will you tell us if you can’t … and I’m going to decide this case based on what happened to me” after the trial gets going? ‘‘Would you tell us that?” She said, “No, I would try to be fair … and put my personal experience aside.” 

At a sidebar, Kechedzian’s lawyer challenged Juror #3: “I’m concerned that No. 3 did not answer your question [about the presumption of innocence, burden of proof, and jurors’ ability to follow these principles]…. She said she might be able to. I don’t think that’s sufficient.” The court denied the challenge, ruling that “at the end of the day she confirmed or committed to the principles of innocence and burden of proof.” 

Kechedzian was convicted and sentenced to 65 months in prison, plus restitution. He appealed. 

The Ninth Circuit began its analysis by explaining that the Sixth Amendment guarantees an “impartial jury.” The presence of a biased juror can’t be harmless and, therefore, requires a new trial without a showing of actual prejudice. United States v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000). 

In this case, the Court found that Juror #3 had an “actual bias” and should have been removed. An actual bias is “the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” Id.  

That’s what happened here, the Court stated. In an earlier, similar case, the Ninth Circuit had found actual bias when a juror stated, “I would try to be fair.” Neither that statement nor any made by Juror #3 constitute an unequivocal statement of impartiality, according to the Court. Citing Gonzalez, the Court explained, “[w]hen a juror is unable to state that she will serve fairly and impartially despite being asked repeatedly for such assurances, we can have no confidence that the juror will ‘lay aside’ her biases or her prejudicial personal experiences and render a fair and impartial verdict.”

The Court concluded “this is precisely what occurred here, the district court was obliged to excuse Juror #3 for cause under an actual bias theory.” Accordingly, the Court reversed and remanded for a new trial. See: United States v. Kechedzian, 902 F.3d 1023 (9th Cir. 2018). 

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United States v. Kechedzian




 

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