Aug 28, 2017 Judges must not allow jury members who are not going to follow their oath
Jurors in criminal and civil trials are obligated to follow their oath, which includes being fair and impartial, and not favoring one witness over another on the basis of the witness’s profession nor personal connection to the juror.
Amazingly and very sadly, Larry Jermaine Bell’s trial judge in Halifax County, Virginia, Circuit Court disregarded that oath, by allowing on Bell’s jury the cousin of the case agent in the cocaine prosecution against Bell. Bell’s lawyer’s motion to strike this juror for cause was denied by the judge, requiring Bell to use one of his limited and precious peremptory strikes to remove this potential juror from deciding Bell’s case. Bell v. Virginia, Virginia Court of Appeals Record No. 1765-16-2 (unpublished, Aug. 8, 2017).
The prosecutor’s and trial judge’s efforts to rehabilitate Juror E.L. — who was the first cousin of the father of case agent and police officer Thomas Lewis — were of no sufficiency after the below-quoted prior answers by E.L. that showed how much he was biased for officer Lewis:
“COURT: Okay, would the fact that you know [police officer] Tom Lewis, impair your ability to give both the Commonwealth and the defense a fair and impartial trial today?
“[JUROR E.L.]: I don’t think so, but he is kin [emphasis added]”…
[Prosecutor]: “Do you feel like your relationship with [Officer Lewis’s] father would affect your ability to be fair and impartial in the case today?
[JUROR E.L.]: “I think so [emphasis added]”…
[Prosecutor]: “And not give any undue weight to Tom’s testimony just because of him being family?
“[JUROR E.L.]: Well, I would rather not be here [emphasis added].”
[Bell’s Attorney]: “Let’s say that [Officer Lewis’s] testimony is in direct conflict with some other person in a case, let’s say it’s a traffic case and he says the light is green and somebody else says the light is red, are you more likely to believe him over someone else?
“[JUROR E.L.]: Probably [emphasis added]”…
[Prosecutor]: “By knowing a law enforcement officer, I would ask you . . . do you feel like that is something that you can set aside that you could weigh his testimony fairly with the others or do you feel like you’re going to give his testimony greater weight?…
“[JUROR E.L.]: I mean, if it’s just word against word, I’m probably going with Tom, law enforcement. If you’ve got evidence, then the evidence speaks for itself.”
Praised be the Virginia Court of Appeals for reversing Bell’s conviction due to the judge’s refusal to strike E.L. for cause. Further thanks to the appellate court for rejecting the prosecutor’s appellate argument that the error was harmless “because Officer Lewis’s credibility was not at issue.” Among the reasons that Bell finds this not to be harmless error is that: “’It is prejudicial error for the trial court to force a defendant to use the peremptory strikes afforded him by Code § [19.2-262] to exclude a venireman who is not free from exception.’” Bell.