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Massachusetts Supreme Judicial Court Vacates Guilty Plea Conditioned on Waiving Right to Pursue Claim Racial Bias Infected Jury Deliberations

The Court’s opinion was issued in an appeal brought by Khamal McCalop. After a May 13, 2015, high-speed chase with Boston police, McCalop was indicted by a jury on four counts: possession of a firearm, possession of ammunition, possession of a loaded firearm, and negligent operation of a firearm.

At his first trial, McCalop was convicted only of negligent operation of a motor vehicle. The jury could not reach a unanimous verdict on the other counts, and a mistrial was declared. Sentencing was deferred until all charges were resolved. After a two-day trial, the jury found McCalop guilty on February 2, 2017, on all counts.

As his trial counsel was leaving the courthouse that day, two jurors were waiting for him in the courtyard. One was a deliberating juror, and the other was an alternate. The deliberating juror was crying and said the vote was initially evenly split. Other jurors slowly changed their vote, and as the last holdout, she was pressured to vote guilty. She also said she was surprised to see the amount of racism expressed and vocalized during the deliberations by several jurors who were advocating for a guilty verdict. The juror said she believed racism changed some of the jurors’ votes to guilty.

Prior to McCalop’s February 7, 2020, scheduled sentencing enhancement trial, defense counsel filed a motion requesting for disclosure of the jurors’ names and contact information based upon the deliberating juror’s comments. That motion resulted in the prosecutor’s supervisors to rescind a plea offer on the sentencing enhancements until they reviewed the defense motion. Upon learning this, the judge told defense counsel, “Good going . . . You just upset this applecart.”

She then denied the defense motion and asked the prosecutor if the offer would “still be on the table” if the defense agreed not to pursue the juror bias issue. The prosecution agreed, and the defendant ultimately agreed to waive raising the issue in the future in return for the most severe sentencing enhancement being nol prossed and a sentence recommendation of not less than four years or more than five years. McCalop appealed after sentencing.

Appellate counsel moved on February 4, 2019, for a new trial to withdraw the guilty plea to the sentencing enhancement, his withdrawal of the motions for mistrial and disclosure of juror information, and the relinquishment of appellate rights. That motion was denied, and the matter was moved to the Supreme Judicial Court upon its own initiative.

That Court began its discussion by stating that racial bias in the jury system is “a familiar and recurring evil that, if left unaddressed, would risk systematic injury to the administration of justice,” citing Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

The Court instructed that when defense counsel brings facts such as the case at bar to its attention, “the judge must give the defendant a fair opportunity to obtain an affidavit from that juror setting forth with some specificity who among the jurors made statements reflecting racial bias and, to the best of his or her memory the statements that were made.”

Once a motion permitting an investigation into the allegation is allowed, the process proceeds as described in Commonwealth v. McCowen, 458 Mass. 462 (2010). McCowen instructs that the court must hold a hearing and evaluate the claim under a preponderance of the evidence standard.

In the present case, the Court ruled that McCalop is to be given that opportunity on remand.

The Court further ruled the guilty plea to the sentence enhancements was involuntarily entered because “the judge conditioned the plea on the defendant’s promise forever to waive his claim that he was denied his fundamental right to an unbiased jury because the jury deliberations were infected with racial bias.”

The Court trusted that the prosecutor would not “seek to penalize the defendant for preserving” the opportunity to explore whether racial bias infected the jury. It also concluded there was insufficient evidence to support the possession of a loaded firearm, and it vacated that conviction.

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Related legal case

Commonwealth v. McCalop



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