Skip navigation
Disciplinary Self-Help Litigation Manual - Header
× You have 2 more free articles available this month. Subscribe today.

Ohio Supreme Court Announces New Standard for ‘Actual Racial Bias’ for Jurors and Holds Counsel Was Ineffective for Failing to Strike Racially Biased Juror

The Supreme Court of Ohio held that Glen E. Bates was deprived of his right to effective assistance of counsel when his attorney failed to inquire into a juror’s expressed racial bias or strike the juror.

Bates was convicted by a jury of aggravated murder and other charges stemming from the abuse, torture, and death of his 2-year-old daughter Glenara Bates. After a mitigation hearing, the jury unanimously recommended a sentence of death. Bates raised numerous arguments on appeal, one of which was that he was denied his constitutional right to effective assistance of counsel when his attorney failed to question and strike a juror who made racially biased statements on her juror questionnaire.

When answering the question, “Is there any racial or ethnic group that you do not feel comfortable being around,” Juror #31 answered “yes” and wrote “sometimes black people.” She also answered that she “strongly agree[d]” that some races are more violent than others and then wrote “Blacks” in the space allotted for explanation.

Even though Bates is Black, his attorney never asked Juror #31 about her answers to those questions. Furthermore, after exercising five of the six allotted peremptory strikes, defense counsel waived the remaining strike instead of striking Juror #31. As a result, Juror #31 was one of the jurors who decided Bates’ guilt and was one of the jurors who sentenced him to death.

The Ohio Supreme Court reviewed this claim under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), i.e., “counsel’s representation fell below an objective standard of reasonableness,” and the deficient performance prejudiced the defendant. An attorney performs deficiently under Strickland when he fails to question a juror about racially biased comments made on a juror questionnaire if there is no discernible reason for failing to do so. State v. Pickens, 25 N.E.3d 1023 (Ohio 2014). “Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice or predisposition about the defendant’s culpability.” Gomez v. United States, 490 U.S. 858 (1989). “Without an adequate voir dire, the trial judge’s responsibility to remove prospective jurors who will not be able to impartially follow the court’s instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United States, 451 U.S. 182 (1981).

But to demonstrate prejudice, the defendant “must show that [a] juror was actually biased against him.” State v. Mundt, 873 N.E.2d 828 (Ohio 2007). Actual bias can be established by a juror’s express admission or from circumstantial evidence of the juror’s biased attitudes. Hughes v. United States, 258 F.3d 453 (6th Cir. 2001). “Actual bias is ‘bias in fact’ — the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” United States v. Torres, 128 F.3d 38 (2d Cir. 1997).

In sum, a defendant must show the juror was not “capable and willing to decide the case solely on the evidence.” Smith v. Phillips, 455 U.S. 209 (1982). This is because “[o]ne touchstone of a fair trial is an impartial trier of fact — a jury capable and willing to decide the case solely on the evidence before it.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984).

The Ohio Supreme Court could find no discernible strategic reason for defense counsel’s failure to question Juror #31 about her answers that revealed her racial bias. Nor was there any reason to forego the sixth peremptory strike and fail to strike Juror #31. And, because Bates is Black, the answers of Juror #31 demonstrated she had actual bias against him. Consequently, the Court held that “counsel’s voir dire of juror No. 31 was objectively unreasonable under Strickland” and thus “was constitutionally ineffective….”

The Ohio Supreme Court took this opportunity to clarify its current position on “actual bias” and “personal bias” with respect to jury selection. In Pickens, the Court ruled that defense counsel’s performance was deficient but “determined that there was no evidence that the juror was actually biased against Pickens himself.” The Pickens Court explained that the juror’s general comment about his unease around young “black men with their pants down to their knees [did] not necessarily reflect bias against Pickens personally.”

In the present case, the Ohio Supreme Court announced “we overrule Pickens to the extent that it held that actual racial bias must be shown by demonstrating bias against a defendant personally.” It explained that “actual racial bias may be present without a demonstration of bias against the defendant personally if the juror’s statement rises to a level of generality about a racial or ethnic group that indicates the juror’s inability to be impartial in the particular case before him or her.” The Court concluded juror No. 31’s statements meet that standard and thus constitute actual racial bias.

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

State v. Bates



Stop Prison Profiteering Campaign Ad 2
Advertise here
Disciplinary Self-Help Litigation Manual - Side