Friday, November 18, 2005

Appellate prosecutor's assertion that stenographic record "may well" be wrong sufficient to raise factual dispute requiring remand for hearing?

People v Linnan, 2005 NY Slip Op 08380, 2005 WL 3017743 [available here]

In another decision dealing with jury selection error, the Fourth Department in People v Linnan remanded the case to the trial court to determine if a juror who had expressed doubt about her ability to be fair and impartial was sufficiently rehabilitated later in the voir dire process. The interesting thing about Linnan is not the underlying legal issue; as I've noted before, a trial court's refusal to strike a juror for cause who has made statements raising a doubt as to her ability to be fair and impartial and who gives less than unequivocal assurances about her ability to be fair and impartial is a frequent ground for reversal. Rather, Linnan is strange because it appears from the decision that the stenographic record from the lower court establishes that the the juror in question did not give any type of expurgatory oath, i.e. the juror made statements casting doubt on her ability to be fair and impartial and never subsequently gave unequivocal assurances of such an ability. From the Court's decision:

The transcript of voir dire establishes that, when defense counsel asked the prospective juror in question whether she could be 'objective' after viewing graphic photographs of the victim, she responded, 'Not being subjected to that, maybe. I'm not certain how I would respond.' Defense counsel then asked her, 'Are you saying [that] if you did look at the pictures, you can't say whether you would be fair and impartial after looking at them?' She responded, 'That's correct.' Seeking clarification, defense counsel asked, 'Based on the graphic nature, not necessarily on what [the People might prove or fail to prove]?" The prospective juror responded, 'Right.'

On its face, the record discloses no follow-up questioning of that prospective juror and, indeed, it appears from the record that defense counsel immediately turned his attention to another prospective juror who was not subsequently challenged for cause and who said she thought she could 'maintain [her] objectivity' even after viewing 'real graphic photographs'.

(People v Linnan, 2005 WL 3017743 [brackets in original].)

Case closed, right? The juror said she could not be fair and impartial, and the stenographic record reveals that juror never later said she could be fair and impartial in spite of her misgivings. Conviction reversed. Right?

Well, not quite. In their brief, the People "assert[ed] that the exchange attributed by the transcript to the prospective juror not challenged for cause 'may well have' involved the prospective juror challenged for cause, and that the prospective juror challenged for cause may thereby have rehabilitated herself as an impartial juror." (Id.) If the People had any kind of proof or could point to any ambiguity from the trial record to support that bald assertion, the Court did not mention it in the decision. So what we are left with is a transcript that is clear that the juror in question never gave the required unequivocal assurances, and a prosecutor who asserts in an appellate brief that maybe the stenographic record is wrong. That can't possibly be enough to raise a legitimate "factual dispute" that would require a remand for a hearing instead of a straight reversal, can it? Ummm . . . from the Court's decision:

Given the factual dispute concerning which prospective juror engaged in the subsequent exchange with defense counsel, we are unable to determine whether the prospective juror challenged for cause, despite having 'cast serious doubt on [her] ability to render a fair verdict under the proper legal standards', thereafter gave the requisite unequivocal assurances that her prior state of mind would not influence her verdict and that she could be fair and impartial. We therefore hold the case, reserve decision and remit the matter to County Court for a reconstruction hearing to determine which prospective juror made the expurgatory statements.

(Id. at __.)

So even if the record is relatively clear, a "factual dispute" can apparently be created by a prosecutor's conclusory assertions contained in a legal brief that the record might not really say what it appears to say.