Category: Chapter 7: Special Ethical Rules: Prosecutors and Judges

News from the Florida Keys

jstearns2014Leave a comment

An assistant state attorney in Monroe County (The Florida Keys) has just agreed to a plea in which she will use her law license for one year as a result of prosecutorial misconduct. According to the article in the Miami Herald (December 5, 2019), Colleen Dunne withheld evidence from defense attorneys as to three recorded phone calls between the defendant and his son.  The case will also result in her termination from her job as an assistant state attorney.  The plea and sanctions are still subject to review by the Florida Supreme Court.

https://www.miamiherald.com/news/local/community/florida-keys/article237994529.html

 

 

From Riehlmann to Thompson

jstearns2014Leave a comment

I have just heard the Podcast from the New Yorker Radio Hour called John Thompson v. American Justice. The Podcast connects the story from Riehlmann (Chapter 6) to Connick v. Thompson (Chapter 7).  This includes interviews with Riehlmann and District Attorney Connick, as well as long interviews with John Thompson. I highly recommend for you and your students too.  It runs about an hour, but is incredibly provocative and on point for the themes in both chapters.

 

Materials on Federal Judicial Ethics for Your Class

Ellen MurphyLeave a comment

My students have been quite interested in the complaints filed against now-Justice Brett Kavanaugh, so I prepared some materials for our class today. I have a set of slides I’m happy to share – email me @ murphyme@wfu.edu.  For quick research, two pieces I can recommend, both from Russell Wheeler @ the Brookings Institute, are the recent short but concise and clear summary article “What’s happening with the ethics complaints against Brett Kavanaugh?” along with 56 Ariz. L. Rev. 479 (2014), A Primer on Regulating Federal Judicial Ethics.

Florida Prosecutor’s Policy Stance against Death Penalty Reviewed by Florida Supreme Court

jstearns2014Leave a comment

The first African-American state attorney in Florida history, Aramis Ayala, made national news this spring when she announced that she would never seek the death penalty in any of her cases. As a result, Florida Governor Rick Scott transferred two dozen cases to another prosecutor in the state from another county, one known to be a death penalty proponent.  Ayala’s claims that these cases should be returned to her jurisdiction were heard by the Florida Supreme Court on Wednesday, June 28.

The following article from the Miami Herald (June 29. 2017) provide a good overview of the Supreme Court hearing. This is a great case for highlighting the competing roles and professional responsibilities of the prosecutor. Keep a lookout for the Florida Supreme Court’s forthcoming decision in a case that has many legal experts filing briefs already on all sides of the issue.

http://www.miamiherald.com/news/politics-government/state-politics/article158614209.html

 

Extrajudicial Prosecutorial displays of contraband barred – NJ Ethics Committee

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Source: Extrajudicial Prosecutorial displays of contraband barred – NJ Ethics Committee

Extrajudicial Statements Featuring Displays of Seized Contraband Are Prohibited by Rule of Professional Conduct 3.6 and 3.8 according to the recently issued  Opinion 731 of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics.

The Committee rejected a prosecution request to relax New Jersey’s long-standing stricture on prosecutorial display of contraband.  The ACPE adhered to the plain language of RPC 3.6 (Trial Publicity):

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

The Inquiring prosecutor argued that the display of seized drugs and paraphernalia would be an educational deterrent to drug abuse – particularly in light of the opioid use crisis which is a current focus of the administration of Governor Chris Christie.  The Governor has appeared in a series of television advertisements urging users to seek treatment.

The Inquirer found support in RPC 3.6 (d) which provides:

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

The ACPE rejected the Inquirer’s argument.  It relied on RPC 3.8 (Special Responsibilities of a Prosecutor) which provides, in part:

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6 or this Rule.

According to an article in the New Jersey Law Journal the Inquirer’s request found little support – even among prosecutors.  The Supreme Court Committee’s rulings are binding on the entire bar subject to discretionary review by the Supreme Court itself.  It is expected that the Inquirer will seek such review.

New York City Bar: Prosecutors’ Duty to Disclose Held Broader Than Brady Standard | Legal Ethics in Motion

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Source: New York City Bar: Prosecutors’ Duty to Disclose Held Broader Than Brady Standard | Legal Ethics in Motion

According to a recent opinion from the New York City Bar’s Ethics Committee, a prosecutor’s ethical obligation to disclose evidence favorable to a defendant is broader than the constitutional minimums imposed by the Supreme Court in Brady v. Maryland.

Under the holding in Brady, prosecutors are only required to provide the defense with exculpatory evidence that is “material either to guilt or to punishment.” The materiality standard in Brady has been the subject of great criticism, prompting a divide on the issue of whether the lawyer conduct rule governing prosecutors’ disclosure contradicts federal constitutional standards.

New York City Bar’s Ethics Committee concluded that New York Rule of Professional Conduct 3.8(b)requires a prosecutor to turn over to the defense any exculpatory evidence regardless of whether the prosecutor believes it is “material.” Opinion 2016-3 reaffirms the position taken by the ABA in 2009, which advised that the ethical obligations imposed by Rule 3.8 are more demanding than the standard in Brady, because Rule 3.8 requires disclosure of any evidence or information favorable to the defense regardless of the prosecutor’s assessment of the impact on a trial’s outcome. The New York opinion also notes that under Rule 3.8 favorable information must be provided to the defense “as soon as reasonably practicable,”regardless of the timing requirements of other substantive law.

The New York City opinion can be read here.

Judiciary Court Files Charges Against Alabama Chief Justice Roy Moore

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Source: Judiciary Court Files Charges Against Alabama Chief Justice Roy Moore

The Alabama Court of the Judiciary on May 7 filed a complaint against Chief Justice Roy Moore for obstruction of the duty of Probate Judges to comply with the order of a federal court.  Moore has been suspended with pay. Moore  was previously removed for defiance of an order to remove the Ten Commandments monument from the courthouse.  He was reelected.
The Court of the Judiciary complaint relates to a January 6, 2016 Administrative Order by Moore which – after Obergefell v. Hodges – declared “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act [which]remain[s] in force and effect.”
The Court asserts six counts of violation of the Code of Judicial Conduct, including Canon 2A for failure to respect  and comply with the law”.

Moore’s Liberty Counsel defenders filed a federal action to enjoin the suspension. See complaint.

California Continues its Work to Update its Ethics Rules (and switch to the ABA Model Rules Format)

Laurel TerryLeave a comment

California’s Second Commission for the Revision of the Rules of Professional Conduct continues its work to update California’s ethics rules (and switch to the ABA Model Rules format).  The Commission’s website includes a page where it regularly posts its draft rules for comment.  For example, in April 2016 the Commission posted its proposed drafts of Rules 1.2, 1.7, and 7.1-7.5, among other rules.  In May 2016 the Commission posted drafts of Rules 3.3-3.6 and a proposed rule dealing with prosecutorial responsibilities.    The June 2016 column by State Bar of California President David Pasternak urged California lawyers to submit their comments to the Commission.  Given California’s size and influence, this work deserves careful consideration by all lawyers.

It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed | The Marshall Project

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Source: It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed | The Marshall Project

Unguided prosecutors – county by county  prosecutorial discretion – is at the heart of the arbitrariness of capital punishment in America, as well as state and local cultures which make coherence in our criminal justice system an impossibility.

Who lives and who dies – among those who have committed horrible acts?  Historically – men die, and Black men die much more often.  But even if – as in New Jersey – that factor was squeezed out (by Black urban political power) – the results are arbitrary.  At a symposium  I organized at Seton Hall eight years about the state’s repeal – former Chief Justice Deborah Poritz acknowledgedthat despite rigorous “propotionality review” they had failed to eliminate the arbitrariness of who was sentenced to death who to life in prison.  – gwc

Should a prosecutor-turned-justice recuse in an appeal on a case where he sought the death penalty?

Renee KnakeLeave a comment

From NPR News:

The U.S. Supreme Court hears arguments [today] testing whether a Pennsylvania Supreme Court justice violated the U.S. Constitution when he ruled in a death penalty case that he had been involved with as a prosecutor.

At issue is whether then-Chief Justice Ronald Castille, by refusing to recuse himself, denied the defendant, Terrance Williams, a fair hearing.

Full story and link to the audio clip here.

Prosecutorial Accountability – An Optimistic Future

Peter JoyLeave a comment

Bruce Green and Ellen Yaroshefsky recently posted a new article on SSRN, Prosecutorial Accountability 2.0.  They identify several rhetorical and regulatory shifts that they claim are leading to an era of new prosecutorial accountability.  In their carefully crafted article, they argue that information technology is the main driver behind this shift to hold prosecutors accountable for their actions. They claim that the pendulum long fixed on courts and the media presuming that prosecutors could do no wrong has swung to a more skeptical position.  Let’s hope they are right. Anyone interested in the criminal justice system should read this article.

Judicial supremacy and professional responsibility // Wasserman // Prawfs Blawg

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Source: Judicial supremacy and professional responsibility // Wasserman // Prawfs Blawg

Image result for james obergefell
James Obergefell and Chris Geidner


The post-Obergefell same-sex marriage Statement Calling for “Constitutional Resistance” by uber conservative Robert George has found resonance with allies like Justice Antonin Scalia. Some rallied to County Clerk Kim Davis in Kentucky – and Texas Attorney General Ken Paxton has suggested that county clerks may be entitled to exemption from following the Supreme Court’s dictates.


Former Scalia clerk and Catholic conservative Kevin Walsh at University of Richmond has acted to support his former mentor by explaining that there is no defiance of law in comparing Obergefell to Dred Scott v. Sanford, that the judiciary is supreme only in its own “department”, leaving other departments of government free to pursue their own visions of the Constitution.  Judicial supremacy – the product of Marbury v. Madison as now understood – has long invited celebration and vilification, depending usually on whose oxen have been gored.

Prof. Howard Wasserman who is not in the same ideological camp has embraced the “departmentalism” notion. In my view signing on to Walsh’s label is hazardous. Of course every branch of the government participates in the development of thinking within or about the framework of the constitution. But in practice the current slogan as inspired by George – who denounces Obergefell as illegitimate as was Dred Scott   – is a dangerous development.

Those like Chief Justice John Roberts who in dissent denounced Obergefell (“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision”) are playing a risky game. The majority decision giving the 2000 presidential election to George W. Bush is subject to the same attack as Roberts makes now. Judicial humility did not prevent Roberts from striking Section 5 of the Voting Rights Act; nor from striking the voluntary racial integration plans of the Seattle public schools. Such decisions cannot be resolved by neutral principles. They require prudential judgments; judiciousness rather than “constitutional resistance” is the better watchword.

In Texas an ethics complaint has been filed against the Attorney General. The tactical wisdom of that is dubious. We can see a judicious approach in the recent order of federal Judge David Bunning in Kentucky. He has declared himself satisfied that his order to provide marriage licenses to all qualified applicants has been met by the office of the county clerk. He did not require that Kim Davis’s or even the county’s name be on it. Davis substituted “issued by federal court order” for the name of the county.  Bunning, finding that the validity of the licenses is not in doubt, chose deference rather than further confrontation.  Substance over form.  Discretion can be valor.   – gwc

PrawfsBlawg: Judicial supremacy and professional responsibility

by Howard Wasserman

The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.

One of the challenges to the model of departmentalism I have been advocating (what Richmond’s Kevin Walsh calls “judicial departmentalism”) is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS’s interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is “emphatically the province and duty,” etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.

On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.

D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

George ConkLeave a comment

Source: D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

The United States District Court for the District of Columbia has released aproposed rule which would codify the government’s discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors and defines for the first time what constitutes “favorable information” under the U.S. Supreme Court’s landmark 1963 decision in Brady v. Maryland the Court there declared that prosecutors have a constitutional obligation to provide the defense with “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” The failure by a prosecutor to disclose appropriate information is often referred to as a “Brady violation.”

In recent years the importance of the rule has been highlighted by the Innocence Project, and the recognition by some – such as former Louisiana Supreme Court Chief Justice Pascal F. Calogero, Jr., who declared that systemic difficulties – including lack of guidance – help to explain the “Brady violations” that underlie some wrongful convictions. – gwc

Kansas Supreme Court Stands Up to Legislature // Brennan Center

George ConkLeave a comment

Source: Kansas Supreme Court Stands Up to Legislature // Brennan Center

The Kansas Supreme Court has been in a long struggle with the Legislature to achieve equitable funding for public schools.  The State has twice moved to directly interfere with the Courts.  In the first instance it assigned jurisdiction over school funding cases to a single three judge panel.  The legislators have continued to defy school funding mandates.

Most recently the legislators enacted a change in how the Chief Justice is selected by the Court.  The legislators provided that if that law was declared unconstitutional the judiciary’s funding would be stricken.  The Court has called that bluff, the Brennan Center reports

JUDICIAL INDEPENDENCE


Kansas Supreme Court Finds Administrative Law Unconstitutional

On December 23, the Kansas Supreme Court found that a 2014 state law changing the selection mechanism for chief district judges was unconstitutional, writes Jonathan Shorman for The Topeka Capital-Journal. 

 
Plaintiff Chief Judge Larry Solomon, whose legal representation includes the Brennan Center for Justice, argued that the law was an unconstitutional violation of the separation-of-powers doctrine. The majority opinion stated that “the means of assigning positions responsible to the Supreme Court and charged with effectuating Supreme Court policy must be in the hands of the Supreme Court, not the legislature.” They also described the legislature as “assert[ing] significant control over a constitutionally established essential power of the Supreme Court” by enacting the law. 
 
A separate law passed in 2015, HB 2005, “strikes court funding if provisions of the 2014 law are struck down, which the Supreme Court did with [its] ruling.” As a result, the Supreme Court’s decision could “bring the state closer to a crisis over court funding.” However one of Judge Solomon’s attorneys, Pedro Irigonegaray, said that “an injunction against defunding the courts will remain in place until at least mid-March.” The Brennan Center and co-counsel also represent Kansas judges challenging the constitutionality of HB 2005.

OTHERWISE: Public comment sought on proposed California rules on prosecutors // Legal Ethics Forum:

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Source: OTHERWISE: Public comment sought on proposed California rules on prosecutors // Legal Ethics Forum:

The California Rules Revision Commission is fast-tracking approval of two rules about prosecutor behavior.  From the State Bar Of California:

Excerpts from the proposed Rules follow: 
Rule 5-110 (Commission’s Proposed Rule – Clean Version) 
The Prosecutor in a criminal case shall:
(D) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(G) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) Promptly disclose that evidence to an appropriate court or authority, and (2) If the conviction was obtained in the prosecutor’s jurisdiction, (a) Promptly disclose that evidence to the defendant unless a court authorizes delay, and (b) Undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. 
(H) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. 
 Rule 5-220 Suppression of Evidence
A member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or to produce. Discussion: See rule 5-110 for special responsibilities of a prosecutor.
Use the following link to access the notice of public comment, draft rules and Board agenda materials:
http://www.calbar.ca.gov/AboutUs/PublicComment/201518.aspx

Free speech, judges, and Facebook

Renee KnakeLeave a comment

A Special Court of Review appointed by the Texas Supreme Court recently dismissed all charges against Judge Michelle Slaughter of the Texas 405th District Court in Galveston. The State Commission on Judicial Conduct previously had issued a public admonition about Judge Slaughter’s use of Facebook to inform the public of proceedings in her court. The case raises a host of interesting questions about free speech, the elected judiciary, comments by judges on pending cases, and the use of social media by judges. A link to the full opinion is available here. (Disclaimer: I served as an expert witness on behalf of Judge Slaughter regarding the first amendment issues presented by the case.)

 

Posner’s Passion Sparks Dispute on Judge’s Use of Internet Research // Rowe v.Gibson 7th Circuit

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Source: Posner’s Passion Sparks Dispute on Judge’s Use of Internet Research // Rowe v.Gibson 7th Circuit

Judge Richard Posner exhibited an extraordinary passion for justice when he wrote  “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”  The prolific 7th Circuit judge was writing in Rowe v. Gibson. The court  reversed the grant of summary judgment and dismissal to defendant prison officials who were alleged to have been deliberately indifferent to plaintiff’s medical condition in violation of the cruel and unusual punishment clause of the Eighth Amendment.  Rowe claims prison officials callously withheld and administered the  medication necessary for care of  his reflux esophagitis – GERD.

Like his colleagues Posner found Rowe’s claims sufficient to reverse grants of summary judgment.  Posner disputed  the credentials of  credentials of the prescribing physician – a  defendant who testified as an expert in his own defense, in a field not his own.  To reach and support his conclusions  – and doubtless fueling his anger – Posner conducted  his own independent research about the drug commonly known as Zantac.   Posner gathered  materials from the drug’s manufacturer GlaxoSmith Kline, and widely relied upon authoritative sources such as the National Institutes of Health, the Mayo Clinic, Web MD and Wikipedia in discussing the pro se plaintiff’s physical condition and legal claims.

Posner’s efforts were  sharply criticized by his colleague David Hamilton.  He took exception to Judge Posner’s reliance on the sources, finding them to be investigations of fact, beyond the scope of what is permitted of a neutral magistrate. – gwc

Judge should have removed juror for bias: New Jersey Appeals Court

George ConkLeave a comment

Adam Liptak recently  reported in the New York Times that racial strike patterns in jury selection is widespread – and often without consequence.

In the days before Batson v. Kentucky(1985) when I was trying cases for the Public Defender and Joseph Donahue was an Assistant County Prosecutor in Newark New Jersey we (defenders and prosecutors) with scarcely a second thought peremptorily struck jurors on the basis of their race and gender.  Blacks were routinely stricken by the prosecutors, and we struck anyone who had a third cousin who was a cop, or was Italian from a town we considered racist.

When we once got the bright idea to object – in a case where Joe (now Judge) Donohue was the prosecutor – the judge brushed our objection aside saying “I will not have attorneys in my courtroom accusing each other like that”.   Now –  over 30 years later – an Appellate Division panel in New Jersey has reversed car jacking convictions won in Donohue’s courtroom,  In a pointed message they instructed the judge and prosecutor that a casual attitude toward racial prejudice is unacceptable.  The lesson is as apt for civil cases as it is for criminal cases.

The harm of sterotyping is not merely to the parties – plaintiff or defendant.  As Louisiana attorney James Doyle argued to the Supreme Court in Edmonson v. Leesville Concrete [501 U.S. 614 (1991)] the insult, the equal protection violation, extends to the excluded juror, as this film from the Annenberg Center explains.

The Rules of Professional Conduct provide little guidance. In fact the Comments to MRPC 8.4 specifically state that a judge’s finding that a peremptory challenge was “exercised on a discriminatory basis does not alone establish a violation of this rule.”  Does such a soft touch explain in part Judge Donohue’s “we all have some prejudice in us” approach?

– gwc

Source: OTHERWISE: Judge should have removed juror for bias: New Jersey Appeals Court

The Appellate Division of the  Superior Court in State of New Jersey v. Brown the Appellate Division has reversed two convictions for first degree carjacking

“because the trial judge failed to remove a deliberating juror who disclosed her racial bias to two of her fellow jurors and to the judge. Specifically, on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was “concerned” and “nervous” because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, “[t]hey certainly don’t live around there, and they don’t hang around there.” Juror 5, who works in that area, agreed that this seemed strange because that area “mostly is Italian and White people. There really are no Black people around there.” Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial.”

Jurors 5 and 12  enouraged her to express her concerns – which she did to the Sheriff’s officer who advised the judge Joseph Donohue.  After perfunctory questioning of jury number 4 the judge ruled on the motion to remove the juror, saying in open court in the presence of the jury:

I want to make one comment, and I’ve already ruled on this, but in terms of creating the record, there’s been an expression by [Juror 4] — and also [Juror 5] to a certain extent – – expressed some racial consciousness and potential racism by their comments. However, what they both said was that the circumstances were unusual, that the area in which they were, it would be unusual for someone who was Black to be in that area. I can’t say — I can’t say that myself. I don’t know whether any counsel can say it, but these individuals said that that was unusual. And [Juror 4] expressed some initial concerns with it. I don’t think that that’s even an expression of racism. [(Emphasis added).]

The Appellate Division harsh in its assessment of the judge:

These remarks coming from a sitting judge in a criminal trial are plainly inappropriate under any circumstances, but especially when they are uttered in a trial involving two African American defendants. A juror’s expression of “racial consciousness and potential racism” must be immediately repudiated, and the juror must be removed from the jury. Thereafter, the trial judge must conduct a thorough, comprehensive, and probing investigation to determine what influence the juror’s noxious sentiments had on other jurors. Here, the judge’s voir dire of Jurors 3, 5, and 12 was completely inadequate and fell far short of what was required.
“When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based solely on the race of the participants, she revealed a deeply rooted, latent racial bias that required her removal from the jury… Her initial instinctive, subliminal association of race with criminality or wrongdoing far trumped her subsequent assurances of impartiality.”

Read more: http://www.njlawjournal.com/id=1202736097797/Judge-Should-Have-Removed-Racially-Biased-Juror-Court-Says#ixzz3kRKqYdd