Friday, October 07, 2005

This term's Arnold reversal

People v Mateo, 2005 NY Slip Op 07170

What would a term of the Fourth Department be without an Arnold-based reversal for error during jury selection? This packet the honor goes to People v Mateo (2005 WL 2404586, 2005 NY Slip Op 07170 [decision available here]) where "County Court erred in denying [defendant's] challenge for cause to a prospective juror who gave equivocal answers during voir dire and thus failed to establish her ability to be impartial." (Mateo, 2005 WL 2404586, *1.) The facts, from the decision:

When asked whether the fact that her husband was a correction officer and her son a police officer would impair her ability to be fair, she replied that she 'would hope not,' and she acknowledged that there was a possibility that she would tend to credit the testimony of correction officers over that of other witnesses. In addition, she stated that it would be 'difficult' for her to be fair and the only 'thing [she] could say [she'd] try to be fair.' Moreover, the prospective juror was twice asked whether she would feel comfortable being judged by someone with her mindset before she gave an affirmative response to that question.

(Id. [brackets in original].)

Given those facts, the Fourth reversed: "[t]he statements of the prospective juror 'raise[d] a serious doubt regarding [her] ability to be impartial,' which mandated that she be excused unless she 'state[d] unequivocally on the record that . . . she [could] be fair and impartial', and she did not do so." (Id. [brackets in original] [citations omitted].)

The Court of Appeals decision in Arnold (followed by the Fourth Department in Mateo) is a criminal appellate lawyer's best friend. The rule of Arnold is simple: "Prospective jurors who make statements that cause serious doubt on their ability to render an impartial verdict, and who have given less-than-equivocal assurances of impartiality, must be excused." (People v Arnold, 96 NY2d 358, 363 [2001] [decision available here].) If a juror falls short of giving unequivocal assurances--saying "I think so" or "I hope so" when asked if he or she can be impartial, for example--the challenge for cause must be granted, or reversal is required, without resort to any kind of harmless error analysis. Most trial judges are aware of Arnold by now, so the era of numerous Arnold reversals may well come to an end in the near future. But for now, jury selection/Arnold issues remain the only reliably successful issues for New York criminal defendants.

Of course, an Arnold issue must be preserved by defense counsel exhausting all peremptory challenges. (See e.g., People v Jones, 11 AD3d 902, 903 [4th Dept 2004].)