Judge Benchslapped: Failed to Recuse Juror in Child Porn Case - Criminal Law - U.S. Sixth Circuit
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Judge Benchslapped: Failed to Recuse Juror in Child Porn Case

Things are a bit clearer in the rear view mirror.

When a judge is presiding over a trial, and a juror swears, under oath, that he can't bear to look at the child porn that will be presented at evidence, and he had previously given indications that he couldn't be fair and impartial, you recuse him, right?

It seems clear in retrospect. It seemed clear to the Sixth Circuit court too, which issued an opinion subtly benchslapping the trial judge and reversing the conviction.

Sixth Circuit: Recusal Warranted

"Does the fact that the defendant is charged with crimes involving sexually explicit materials cause you to be predisposed either for or against the defendant or the government?"

Juror 29 answered "Yes."

Okay, strike one. After a brief colloquy, the juror explained that his trepidation stemmed from the fact that he had two kids, but after further questioning, the juror agreed that he could decide the facts in dispute, follow the law, and be fair and impartial. At this point, he's probably still an acceptable juror. Plus, neither party sought to strike him from the panel.

After he was empaneled, but before any evidence was presented, he left a voicemail for the courtroom deputy, stating that, "I don't want to ruin anything, but there is no way I can view any of these pictures or video. I have kids and can't do this."

The next morning, he was questioned by the judge and both attorneys, and reiterated that he'd be unable to view the images, as he was afraid that they'd stick in his memory and because "it's the lowest form of humanity."

The juror claimed to be unable to be fair and impartial, and even told the court that he'd close his eyes during the presentation of evidence. The judge focused on whether he had discussed his issues with others, and justified his decision to leave Juror 29 on the panel by noting that if he was excused, the other jurors would seek excusal as well. Never mind the fact that he admitted that he would be unable to render a verdict "based on the evidence presented in court."

"[T]he role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court," Judge Martha Daughtry noted, in a moderately subtle benchslapping. "Rather, in a criminal trial, the judge is entrusted with the responsibility of ensuring that the constitutional rights of the accused are safeguarded from the whims of public opinion, prejudice, and expediency,"

Devil (or Judge's) Advocate

While it may sound clear-cut, here is part of the judge's post-trial explanation for keeping Juror 29:

"There was no dispute of fact as to whether the material was child pornography, and the issue that was before the jury was whether or not Mr. Shepard in fact knowingly viewed the material ...

As indicated, [Juror 29's] response was likely elicited by the defense counsel's opening remarks saying how disgusting and horrendous the material was. However, since the concerns expressed by the juror were over viewing material which was in support of facts that were not in dispute, the Court found that [Juror 29] could fulfill his commitment as a juror."

In retrospect, it may have been wiser to err on the side of a fair trial, but as the judge noted, we all know it was child porn, there were no alternate jurors, and other jurors might follow his lead. How many people do you know who have considered making up an excuse to get out of jury duty?

Besides, if the court excused everyone that found child pornography disturbing, the defendant truly would be tried by a jury of his (alleged pedophile) peers. That's probably not what the framers of the Constitution had in mind.

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