Legal Case Summary

. That's a close relative, right, Mr. Manning? She says close relative. And here you have, you have juror 28 saying, I'm a close cousin. But what is close cousin, is that mean second cousin, third cousin? How do you direct? Yeah. What's that again? Well, how do we know what close cousin means here? I understand. In that case, we would then go to some other circuit courts interpretations of what... What actually does? Is there anything in the record as exactly the nature of a club? Close is a little bit big. They lived together and then they... I mean, close cousin, second cousin. Is there nothing in the record? Well, actually within the record, when Judge Gohmer is inquired, he asked, you know, are you a distant cousin? No, she said she was a close cousin. A close cousin, meaning closer than it. You know, what a distant cousin would be. Sure, but that's the... I guess we're discussing the very problem that we're trying to get a response to, which is, factually, there's no record to tell us what close cousin in that jerk 28's mind means. Is there? In the record note, there's not

. And as a... If we... Let's assume we agree with you that a close relative... If she were a close relative, she would be implylly biased, whether she thought she could be fair or not, and so she should have been dismissed. And that that... But in order to know that, would we have to remain the case for fact-finding? I believe... No, you're honor. And the reason I say that is because any kind of kinship, kinship, which would be... In a situation where she believes she's close, any kind of kinship would be a position that you would have to

... That could be presumed as being biased. Fourth cousin twice removed would be a subject for implied bias. Probably not, but in this case... You just said any kind of kinship. I mean, that's what we got to deal with. We're talking about the Grease of Containment here, and she doesn't give us that. She doesn't say, it's my first cousin, and we're very, very close friends, see each other all. There's nothing like that. Are you a distant cousin to know we're close? What does that mean? Right. I would then relate the court to a United States versus Burr, which is a 1807 case, which you've just decided, John Marshall, talks about kinship in that case. I don't... I didn't actually bring the case to the court, but when you had... Well, and I understand we have the issue of how close it was, and we may have to have a factual record on that

. So that's the point. Would you... Would you concede then that if there's a factual question on that, that's something that the district court maybe should look into? Possibly. Yes, sir. Well, there was going to be a problem here. If you thought there would be some bias here, why didn't you ask additional questions being brought there to the juror? I believe that his trial council made an error for tonight. No, no. But, no, no. The trial council made a decision. We can't say he made an error, or he did the right thing. He made a decision based on what was befriending him, that he was satisfied, that you're a city. He might have wanted that juror. I don't know. I can't say it's error. You know, you did it more than I did. So I can't say it's error. All I know is, trial council thought it was unnecessary to want the error a close cousin and he further. Why shouldn't that be enough for us? Well, the reason is, Judge, the error would be unreasonable to see a bias juror. I mean, it would be unreasonable

. But if you're putting that around it into having it, trial council said to himself, he knew he could have challenged her, and he knew he could have asked additional questions of her. He said, he might choose a sort of cousin or whatever. But he made a decision to let her sit, and he did that right that decision, without asking the judge to go on the interferon. Then what right do we have as an appellant court, the second guest for the lawyer who was in the trenches, named when the decision was faced. And that circumstance, if there's a reasonable cause that believe it, this juror may be biased, it would be unreasonable in that situation for him to not request additional voidier, in terms of whether or not she's biased or not, because it would be unreasonable to have a juror on a jury that's biased. Which are standard of review on this particular number, juror number 97, 20, 80. It would actually be plain error, however. So that's even a clever shot, isn't it? Unless we can come in through the structural defect aspect of it being that this is having a biased juror on a jury affects its constitution like the due process. And also, to add on what your accountant is saying, there may be the categories to deal with. You get a knock-out, you get an acquittal, he ever walks away, you get a conviction, you go, hold on, there's problems here. And let's stop. For defense counsel, I've challenged the court of close. Right. In other words, and let me just add on that, if we were to hold this, you suggest, wouldn't we be giving defense counsel and sort of a perverse incentive to not challenge people for cause or seek further voidier because it would give them another opportunity to say, oh, oh, my constitutional rights are violated on a plain air standard, even though I didn't say boo about it at the time when I could have dealt with it. Well, we've got a situation in this case, Judge, where juror 97, I mean, juror 28 was not the question of the closeness of the constant guinity, the blood relationship was not challenged. However, he did at some point make an effort to challenge juror 97, which would show that at some point he was in a position to... Let's hear what one juror is talking about. 28, you never challenged that. Right

. Okay, that's... When would we be a position that has been assured, alluded to, getting this lawyer a second bite at the apple? He's playing age here, he's going to put someone on a juror who hopes to be a not guilty, and that the guilty case should challenge her later on in the Eiffelic case. Well, I don't think you'll ever get a situation where the jurors is as extreme as this situation here, is where you got a potentially a close cousin of a prosecutor in the jury. And that circumstance, I think, that the... as we agree that the more prudent they do is conduct additional voidier. A lot of people, the first islands are related to one another. That's correct. However, and that is precisely the problem we have here, having a relative of a participant in the trial, because we don't have a stenographer in the jury deliberation, we don't know specifically what influence or effect of having that individual being on the jury. Let's turn if we can for just a second to juror 97. I'd like you to answer the argument that is... that's made by the government here, that this is really no different from the 1950 Supreme Court. The court case where the court said, oh, the mere fact that somebody works for the government isn't enough to imply bias. And here you've got the police department, which is not the prosecutor, and that's extending implied bias too far. There were an employee of the prosecutors offset to be one thing, but an employee of the police department has once removed, therefore, known, applied bias. What's your answer to that? Answer to that is the juror 97 had a working relationship with the two witnesses, two key witnesses in this case, which is different from the 1950s case where all you had is just employees who worked for the postal service, where there was no actual connection to participants within the trial

. In this case, the two police officers had an actual working relationship, with that juror. As you said, she worked in something different. He was out in the field, she was a supplier, or something like that. So they didn't really, as you say, work together, except they worked for the same employer. Well, what makes it... This is not an exceptional case, but exceptional. It's not much for which bias should be applied. It's actually not listed, but it is. And the reason is, is because they had regular interaction in the discharge of their duties. Well, trial counsel didn't seem to want to develop how close they worked. Did there be no request for a further wide air commitment? Well, actually, he filed a motion to excuse that juror. At that point, I think that gave the trial court the opportunity to conduct additional void air. But there were some additional void air. He could have answered additional void air. Right. Well, at the very least, he had unused the challenges he could have used to be for, he was going to be so detrimental to his case. Precisely. However, he objected to it on calls after the fact. Well, that was after the patent was formed in

. Actually, I believe it was actually before there was sworn in. But he could have challenged her for cause, is he had a corrective challenges like? Yes. Correct. Correct. And after what there was over it, before there were any panels, he actually, at that point, filed a motion to strike that juror. I think there were also four additional jurors on the two days. Well, because she was so biased, she was going to be so biased. Why didn't he strike up the jury? Well, I think that was error on his part. And having a juror who was on the jury, who's biased is actually in there in this position. Thank you, Councilor. Thank you. Morning, Honor. I'm Is from my junior and I represent the Appellate United States in America. This matter. Y'all know, in this matter, the Sixth Amendment guarantees the rights of the defendant to be tried by an impartial jury. This is exactly what occurred in this particular matter. The Supreme Court of Defined and Impartial jury has a juror that is impartial and indifferent. In this particular matter, juror number 28, which indicated that she is a relative of the prosecutor. She stated that she is a blood relative. I said close cousin. That's correct

. So why given justice? Given justice, O'Connor's statements in Phillips, and our adoption of that in our case law, why shouldn't the district court have immediately understood, oh, you're a close cousin of the prosecutor? That's going to be a problem. Well, first of all, she stated the question was, what is your relationship or your close or your distant? She stated, first of all, close. And then she qualified, she says, but I don't think that has anything to do with it. So, right? Right, but I mean, isn't the problem thing to send this case back and have the exact right now? I'm exactly what was done by the close? No, you're not. In Smith, this case is fractionally different from the case that you have cited, which is the Smith case. In the Smith case, the defense didn't know anything about the potential conflict of juror. The defense didn't find out about it until after the juror is verdict. How is that relevant? The question was implied bias. All the case law indicates that implied bias is a problem whether or not the person in the position having bias imputed to them thinks they can be fair or not. It doesn't matter whether they think they can be fair. It's a statement by the law generally that if let's make it closer, okay? What if juror 28 had said, yeah, he's my husband. Would you say, he's my husband, but that has nothing to do with it. In fact, we don't get along all that well. I think I can put that out of my head and be completely fair here. Would you say that her saying, I can be fair, would erase the problem? To be quite honest, in that type of relationship, husband and wife, I think that would be considered implied bias. Right. So the question isn't whether the person, as to whom implied bias is being asked, thinks they can be fair. The question is whether they're so close that the public generally looking at that would say, that's just flat unfair. That can't be a fair trial. No matter whether they think they can be fair or not, it can't be fair. So her statement, yeah, I don't think that has anything to do with it. I can be fair. That's irrelevant if she's truly a close relative of the prosecutor, correct? That is correct, you're right. Okay. So getting to Judge Chaguerre's question, since it's hard to know what close cousin means without any more in the record than that, shouldn't the district court have to wrestle with that? Should this go back so that the district court can figure out what is close cousin means? No, you're right. If you look at the board there, she was very transparent. She knew that there was a relationship between her and the prosecutor. The defendant had noticed of this particular relationship. What's the relevance of that? The relevance of the notice. The relevance of the notice is that he has an opportunity to dismiss the juror for cause or for... Accept that, I accept that for purposes of discussion. Let's say for purposes of argument that he made a strategic decision or that he fouled up, doesn't matter what, but he chooses not to do something which, in fact, is the case here. If, in fact, there is a close enough relationship between the juror and the prosecutor that one could rightly say there's implied bias, what does it matter what the lawyer thought? Your Honor, in an implied bias, there would be a degree in which the court would indicate that. This person is so close to the prosecutor that no matter what they said, they basically could not be trusted with the evidence. Are you suggesting that a first cousin could never be close enough to fit that mold? I am suggesting that a cousin would not be close enough to fit that mold. What I am suggesting is, in this particular matter, on all matters, that a close relative in this matter would be someone such as a brother or sister, mother or father, I would even go as far as maybe not. A cousin in this particular matter? You're going to say an aunt would be enough, but a cousin wouldn't... That is correct here

. I can be fair. That's irrelevant if she's truly a close relative of the prosecutor, correct? That is correct, you're right. Okay. So getting to Judge Chaguerre's question, since it's hard to know what close cousin means without any more in the record than that, shouldn't the district court have to wrestle with that? Should this go back so that the district court can figure out what is close cousin means? No, you're right. If you look at the board there, she was very transparent. She knew that there was a relationship between her and the prosecutor. The defendant had noticed of this particular relationship. What's the relevance of that? The relevance of the notice. The relevance of the notice is that he has an opportunity to dismiss the juror for cause or for... Accept that, I accept that for purposes of discussion. Let's say for purposes of argument that he made a strategic decision or that he fouled up, doesn't matter what, but he chooses not to do something which, in fact, is the case here. If, in fact, there is a close enough relationship between the juror and the prosecutor that one could rightly say there's implied bias, what does it matter what the lawyer thought? Your Honor, in an implied bias, there would be a degree in which the court would indicate that. This person is so close to the prosecutor that no matter what they said, they basically could not be trusted with the evidence. Are you suggesting that a first cousin could never be close enough to fit that mold? I am suggesting that a cousin would not be close enough to fit that mold. What I am suggesting is, in this particular matter, on all matters, that a close relative in this matter would be someone such as a brother or sister, mother or father, I would even go as far as maybe not. A cousin in this particular matter? You're going to say an aunt would be enough, but a cousin wouldn't... That is correct here. Can you help us understand what would be the legal distinction there? Because now you're making an assertion about degrees of consanguinity which I'm not aware that there's any basis for statutorily or in common law. So if you can help us with that, that would be great. There's nothing in the basis of statutorily or in the case law as to what is a close relative. What the government is asserting on it is that this person was transparent. She said that she is a close relative. However, she also indicated right off the bat that doesn't mean anything to her. She indicated that doesn't mean anything. What does that happen to you think you do it? The court, the judge was there, the attorneys were there. They were able to look at her demeanor. They were able to listen to her transparency and to make a judgment about this particular individual. I get the feeling we're talking past each other, Mr. Myers. Would you concede that if there really is a basis for saying there's implied bias, that what she thinks has nothing to do with the question? If there's implied bias, it doesn't matter if the person absolutely to their core of their being believes they can be fair. It's irrelevant because the question isn't can you in fact be fair? It's can people generally look at a circumstance where you're that closely related and believe that it's going to be fair. That is not you, the implied bias juror, but the public generally. Isn't that the implied bias question? That is the implied bias, not for you. So once again, don't you have to concede that if juror 28 is a close enough relative that one could say there's implied bias, that her statement that I don't think my relationship has anything to do with it is completely meaningless. No, you're not. Well, does standard review have any, two different standard reviews for 97 and 28? For 28 it's clear error, correct? Yes, Your Honor, clear, plain error. So that gives you a little breathing space. Yes, it does Your Honor

. Can you help us understand what would be the legal distinction there? Because now you're making an assertion about degrees of consanguinity which I'm not aware that there's any basis for statutorily or in common law. So if you can help us with that, that would be great. There's nothing in the basis of statutorily or in the case law as to what is a close relative. What the government is asserting on it is that this person was transparent. She said that she is a close relative. However, she also indicated right off the bat that doesn't mean anything to her. She indicated that doesn't mean anything. What does that happen to you think you do it? The court, the judge was there, the attorneys were there. They were able to look at her demeanor. They were able to listen to her transparency and to make a judgment about this particular individual. I get the feeling we're talking past each other, Mr. Myers. Would you concede that if there really is a basis for saying there's implied bias, that what she thinks has nothing to do with the question? If there's implied bias, it doesn't matter if the person absolutely to their core of their being believes they can be fair. It's irrelevant because the question isn't can you in fact be fair? It's can people generally look at a circumstance where you're that closely related and believe that it's going to be fair. That is not you, the implied bias juror, but the public generally. Isn't that the implied bias question? That is the implied bias, not for you. So once again, don't you have to concede that if juror 28 is a close enough relative that one could say there's implied bias, that her statement that I don't think my relationship has anything to do with it is completely meaningless. No, you're not. Well, does standard review have any, two different standard reviews for 97 and 28? For 28 it's clear error, correct? Yes, Your Honor, clear, plain error. So that gives you a little breathing space. Yes, it does Your Honor. So that we can even find that it was error, but basically the rough requirements of truly plain error, you'd still be home-credits. That is correct, Your Honor. But is the error here such a thing very close to a thought consistent with Justice of Congress's current opinion, that we should find that this error even under clear error, is a structural defect in the proceedings and not merely an error, a clear error. Your Honor. I mean, as Judge George pointed out, if this is something which goes to beyond an exceptional pace, but goes to a structural error, then we don't have to question that's the way there's any prejudice. That's correct. Now, having a cousin for the prosecutor here be a clear, a structural error. No, Your Honor. It would not be a structural error. Why not? Well, first of all, if you look at the questioning and the answers, there's absolutely nothing that would give the court any indication that she would be biased whether actual or implied. But a structural error, it goes beyond whether the person thinks or does a thing. It goes to the integrity of the judicial system itself, where maybe they could be, it assumes that they would be unbiased. But it says that we would not allow something like this to even exist because of the potential. That is correct, Your Honor. And why, in the future, we look at this even if it's the plain error stand over view as they such that as a structural error, we don't even have to question whether or not they would be biased or not. It's been something that we should not be proud of, people trying for crimes, man, sitting on the juror, on juror are people who are related to the government. Well, Your Honor, there is case law in this particular matter. In the case cited by the Defense Torres, the United States versus Torres, on page 47, the second circuit stated in Dicta that although not arising to per se implied biased category, relative of a prosecutor might in a particular case be excluded. Now, even the third circuit said that, yes, they are, even the second circuit says, yes, they are situations in which a close relative of a prosecutor would be implied biased. However, if you look at the statement instead, might, in the case that there are certain instances where a relative of a prosecutor being on a jury would not be considered implied biased. Well, there is nothing that is record that would indicate that she would or would not be

. So that we can even find that it was error, but basically the rough requirements of truly plain error, you'd still be home-credits. That is correct, Your Honor. But is the error here such a thing very close to a thought consistent with Justice of Congress's current opinion, that we should find that this error even under clear error, is a structural defect in the proceedings and not merely an error, a clear error. Your Honor. I mean, as Judge George pointed out, if this is something which goes to beyond an exceptional pace, but goes to a structural error, then we don't have to question that's the way there's any prejudice. That's correct. Now, having a cousin for the prosecutor here be a clear, a structural error. No, Your Honor. It would not be a structural error. Why not? Well, first of all, if you look at the questioning and the answers, there's absolutely nothing that would give the court any indication that she would be biased whether actual or implied. But a structural error, it goes beyond whether the person thinks or does a thing. It goes to the integrity of the judicial system itself, where maybe they could be, it assumes that they would be unbiased. But it says that we would not allow something like this to even exist because of the potential. That is correct, Your Honor. And why, in the future, we look at this even if it's the plain error stand over view as they such that as a structural error, we don't even have to question whether or not they would be biased or not. It's been something that we should not be proud of, people trying for crimes, man, sitting on the juror, on juror are people who are related to the government. Well, Your Honor, there is case law in this particular matter. In the case cited by the Defense Torres, the United States versus Torres, on page 47, the second circuit stated in Dicta that although not arising to per se implied biased category, relative of a prosecutor might in a particular case be excluded. Now, even the third circuit said that, yes, they are, even the second circuit says, yes, they are situations in which a close relative of a prosecutor would be implied biased. However, if you look at the statement instead, might, in the case that there are certain instances where a relative of a prosecutor being on a jury would not be considered implied biased. Well, there is nothing that is record that would indicate that she would or would not be. The record just, it wasn't developed sufficiently for my money. But I tell you from your argument that you would acknowledge that there is error here, but your position is why it's not clearer. It's not clearer. But there's error. Well, Your Honor, my first position is that there's not error, because there was enough question of the juror. But if there is error, it definitely does not rise to the level of clear error. How much question is there, is there a couple of words back and forth that was the whole thing? Well, she was a grilled at all. Well, I believe that her answer close, but that doesn't mean anything. Basically, cut off the judges' question, because it gave some indication that she could be fair. And then when he went further to ask whether you could be fair in her parcel, she said, yes, she could be. Your Honor, in terms of the juror 97, since your clients kind of go with you? Yes, Your Honor. In terms of juror 97, the case that I cited, Dennis versus US, which they tried to bar all the government workers. I believe this is a similar situation. This juror was a person who handled the property for the police department. Never for the police department and knew the testifying officers from her appointed him the same agency. That is correct, Your Honor. But that's not close enough, huh? No, Your Honor. She is not an investigator. All she does is that she hands out, she's responsible for the property. She gives property to the officers. Now there was

. The record just, it wasn't developed sufficiently for my money. But I tell you from your argument that you would acknowledge that there is error here, but your position is why it's not clearer. It's not clearer. But there's error. Well, Your Honor, my first position is that there's not error, because there was enough question of the juror. But if there is error, it definitely does not rise to the level of clear error. How much question is there, is there a couple of words back and forth that was the whole thing? Well, she was a grilled at all. Well, I believe that her answer close, but that doesn't mean anything. Basically, cut off the judges' question, because it gave some indication that she could be fair. And then when he went further to ask whether you could be fair in her parcel, she said, yes, she could be. Your Honor, in terms of the juror 97, since your clients kind of go with you? Yes, Your Honor. In terms of juror 97, the case that I cited, Dennis versus US, which they tried to bar all the government workers. I believe this is a similar situation. This juror was a person who handled the property for the police department. Never for the police department and knew the testifying officers from her appointed him the same agency. That is correct, Your Honor. But that's not close enough, huh? No, Your Honor. She is not an investigator. All she does is that she hands out, she's responsible for the property. She gives property to the officers. Now there was... Would have been close enough if she was right in the squad car with him? Yes, that would be close enough. Would it be close enough if she weren't right in the squad car, but she was a fellow officer in the field and it's sometimes song in the field? Yes. So would it be close enough if she never saw him in the field, but she was still a field agent? Yes, I believe a field agent in this particular matter would be close enough. So is it... It is the fact that she doesn't go in the field, but she's still a police department way. She issues them... She issues them material uniforms. I don't know for all we know, the supplies she gives them include and them the guns and ammo that they take out. That's not close enough because she doesn't lead the office. Well, it's not that the fact that that's not close enough that she doesn't lead the office. She doesn't have a very close working relationship with all of the officers. There were several officers that testified. She only mentioned two of the officers, one of the officers that was on the scene and another officer that was a forensic officer. The main officer who did the arrest, she didn't even mention. She said she didn't mention his name

... Would have been close enough if she was right in the squad car with him? Yes, that would be close enough. Would it be close enough if she weren't right in the squad car, but she was a fellow officer in the field and it's sometimes song in the field? Yes. So would it be close enough if she never saw him in the field, but she was still a field agent? Yes, I believe a field agent in this particular matter would be close enough. So is it... It is the fact that she doesn't go in the field, but she's still a police department way. She issues them... She issues them material uniforms. I don't know for all we know, the supplies she gives them include and them the guns and ammo that they take out. That's not close enough because she doesn't lead the office. Well, it's not that the fact that that's not close enough that she doesn't lead the office. She doesn't have a very close working relationship with all of the officers. There were several officers that testified. She only mentioned two of the officers, one of the officers that was on the scene and another officer that was a forensic officer. The main officer who did the arrest, she didn't even mention. She said she didn't mention his name. She knows one of the officers at least who's directly involved in the arrest and is a testifying witness. That is correct, Your Honor, officer Taylor. And she, in her job, has interaction. They're both employed by the same police department and she says, I know him from work. So it's clear that there's a working relationship there. Why isn't the fact that there's a working relationship, even if it isn't a working relationship in the field, enough to say, implied bias? You Honor, that's not enough to say implied bias because they're not this, she didn't say that they will have a close working relationship. Her job was to issue him equipment and to make sure that equipment that he kept the equipment and that he works with the equipment, Your Honor. This was not an investigator. This was not at a police officer. This was not someone in the field who they see every day, who they see a crime scene. This is just a person in the office who's handing out uniforms and bulletproof vest. That's not a close enough relationship we are. Thank you, Council. Thank you, Your Honor. Mr. President, you are on number 97. We know he is a coworker. She's a coworker that has interactions with at least one of the star witnesses. How do people employ a police department to have an right there? There's a practical issue in a small community and potentially if we come up with broad rules to know any danger, that's a big problem. No, I understand that. However, in this situation, just having a police officer who's another person, having a property clerk who does not have interaction with these officers, it's something completely different than having a property clerk who regularly interacts with a testifying witness

. She knows one of the officers at least who's directly involved in the arrest and is a testifying witness. That is correct, Your Honor, officer Taylor. And she, in her job, has interaction. They're both employed by the same police department and she says, I know him from work. So it's clear that there's a working relationship there. Why isn't the fact that there's a working relationship, even if it isn't a working relationship in the field, enough to say, implied bias? You Honor, that's not enough to say implied bias because they're not this, she didn't say that they will have a close working relationship. Her job was to issue him equipment and to make sure that equipment that he kept the equipment and that he works with the equipment, Your Honor. This was not an investigator. This was not at a police officer. This was not someone in the field who they see every day, who they see a crime scene. This is just a person in the office who's handing out uniforms and bulletproof vest. That's not a close enough relationship we are. Thank you, Council. Thank you, Your Honor. Mr. President, you are on number 97. We know he is a coworker. She's a coworker that has interactions with at least one of the star witnesses. How do people employ a police department to have an right there? There's a practical issue in a small community and potentially if we come up with broad rules to know any danger, that's a big problem. No, I understand that. However, in this situation, just having a police officer who's another person, having a property clerk who does not have interaction with these officers, it's something completely different than having a property clerk who regularly interacts with a testifying witness. We don't know specifically what's going to happen in a jury deliberation. She's planning to get a jury deliberation when we don't know specifically what to believe in. Is a coworker in this position subsumed under the applied bias role? I believe it is because a prostitute may be seen in my understanding when interpretation would be the prostitute's office as well as the police department. There was no actual bias shown in the Department of Life at 7. There was no... The factual record did not substantiate actual bias in this case. So we just kind of limited it to apply to another. I think the voidier on both jurors went to whether or not there was actual bias rather than asking you to avoid hearing the term, whether or not implied bias could have been here. That's where the factual record stopped as far as I'm voidier. But with respect to the 90s... Are you... Are you conceding the council that... and it sounded like you did a moment ago, that it's possible to be employed by the Virgin Islands Police Department and still not be subject to an implied bias in a criminal case? I can concede that

. We don't know specifically what's going to happen in a jury deliberation. She's planning to get a jury deliberation when we don't know specifically what to believe in. Is a coworker in this position subsumed under the applied bias role? I believe it is because a prostitute may be seen in my understanding when interpretation would be the prostitute's office as well as the police department. There was no actual bias shown in the Department of Life at 7. There was no... The factual record did not substantiate actual bias in this case. So we just kind of limited it to apply to another. I think the voidier on both jurors went to whether or not there was actual bias rather than asking you to avoid hearing the term, whether or not implied bias could have been here. That's where the factual record stopped as far as I'm voidier. But with respect to the 90s... Are you... Are you conceding the council that... and it sounded like you did a moment ago, that it's possible to be employed by the Virgin Islands Police Department and still not be subject to an implied bias in a criminal case? I can concede that. The only... So it's the fact that this particular property clerk had interactions with a witness in the course of job duties that you say makes it a case of the applied bias? Yes. Which would distinguish this case from the 1950s case, I think it was the Dennis incision, whereas the Federal Times crack all over the witness. If any of those double witnesses had then additional step of having interactions with the witness and that would be a problem. A police witness, that would be a problem. And that's what respect to the number 97. But go back to 20 years, I think in Justice O'Connor's concurring opinion, she uses close relatives. She doesn't define the close relatives of his. Mr. Manning, can you help us out with the question of perverse incentives here that was raised before and I'm not sure we got any answer to it? If we were to agree with you that there's a problem here, how could we manage addressing that without somehow encouraging defense lawyers to sit on a problem like this and not mention it with the hope as Judge Gere said that if they win, they win great, but if they lose, they can pull out of their back pocket. Wait a second, structural defect. I think within our circuit, the doctrine of implied bias has not been at the forefront of the determination of actual bias when you deal with jurors. And I think this is the situation where it went over the head of the trial court. I mean, trial judge and also went over the head of the trial council. So if that's true, are you conceding that there's no plane error here that it wasn't planned? It shouldn't have been planned. Actually, I'm not suggesting that there was plane error because the law is clear enough when you go to the Supreme Court level and you look at what the other circuits are doing. But in this case, the fact that you've got a close cousin and also an employee of the police department has that interaction would raise rig for the court. And that's enough to raise rig for actually to do something more than just try to do some actual bias of what you're doing. So with respect to Justice O'Connor's position, I think that she does not define what close relative would be

. The only... So it's the fact that this particular property clerk had interactions with a witness in the course of job duties that you say makes it a case of the applied bias? Yes. Which would distinguish this case from the 1950s case, I think it was the Dennis incision, whereas the Federal Times crack all over the witness. If any of those double witnesses had then additional step of having interactions with the witness and that would be a problem. A police witness, that would be a problem. And that's what respect to the number 97. But go back to 20 years, I think in Justice O'Connor's concurring opinion, she uses close relatives. She doesn't define the close relatives of his. Mr. Manning, can you help us out with the question of perverse incentives here that was raised before and I'm not sure we got any answer to it? If we were to agree with you that there's a problem here, how could we manage addressing that without somehow encouraging defense lawyers to sit on a problem like this and not mention it with the hope as Judge Gere said that if they win, they win great, but if they lose, they can pull out of their back pocket. Wait a second, structural defect. I think within our circuit, the doctrine of implied bias has not been at the forefront of the determination of actual bias when you deal with jurors. And I think this is the situation where it went over the head of the trial court. I mean, trial judge and also went over the head of the trial council. So if that's true, are you conceding that there's no plane error here that it wasn't planned? It shouldn't have been planned. Actually, I'm not suggesting that there was plane error because the law is clear enough when you go to the Supreme Court level and you look at what the other circuits are doing. But in this case, the fact that you've got a close cousin and also an employee of the police department has that interaction would raise rig for the court. And that's enough to raise rig for actually to do something more than just try to do some actual bias of what you're doing. So with respect to Justice O'Connor's position, I think that she does not define what close relative would be. I think she just uses close relative. And in this case, we've got a juror who admits all the references on a close relative. And I think that is a good one. So with the appropriate remedy here, be remaining it for more fact finding? I believe that the fact that she conceded that she was a close relative not distant in and of itself would lead to the... I'll write a reversal. That's my position. Thank you very much. Thank you, Council. Thank you for the excellent arguments. We'll take the case under advisory. We have a good, perfect, very important. Please rise.

We'll hear the United States vs. Mitchell next. Okay, that's a bit of a mistake. Good morning, man. Please the court elect to reserve five minutes for the rebuttal. Great. Your honoured meeting on behalf of the Prevent Record of Mitchell. The doctrine of implied bias is clearly established. Federal law is determined by the United States Supreme Court. That's a fifth circuit case, Brooks versus Dritti. And the doctrine of implied bias can be presumed regardless of actual partiality. And this... The point about the implied bias is... Yes, yes. Okay. This case... Well, that's for a limited set of people that justice a conner detailed. Precisely. That's not the... Because of the... This is because of not one of the things that he detailed in her opinion. In this case, Judge, we had a close cousin on the record. Well, okay, but it's not to say it is what justice... What conner detailed. We believe it was, Your Honor. In Justice O'Connor's concurring opinion, she lists these extreme circumstances. The situation is one of them as an actual employee of the Prosecution Agency, which was juror number 97 in this case. She also lists relatives of participants in the trial. In this case, the close... That's a close relative, right, Mr. Manning? She says close relative. And here you have, you have juror 28 saying, I'm a close cousin. But what is close cousin, is that mean second cousin, third cousin? How do you direct? Yeah. What's that again? Well, how do we know what close cousin means here? I understand. In that case, we would then go to some other circuit courts interpretations of what... What actually does? Is there anything in the record as exactly the nature of a club? Close is a little bit big. They lived together and then they... I mean, close cousin, second cousin. Is there nothing in the record? Well, actually within the record, when Judge Gohmer is inquired, he asked, you know, are you a distant cousin? No, she said she was a close cousin. A close cousin, meaning closer than it. You know, what a distant cousin would be. Sure, but that's the... I guess we're discussing the very problem that we're trying to get a response to, which is, factually, there's no record to tell us what close cousin in that jerk 28's mind means. Is there? In the record note, there's not. And as a... If we... Let's assume we agree with you that a close relative... If she were a close relative, she would be implylly biased, whether she thought she could be fair or not, and so she should have been dismissed. And that that... But in order to know that, would we have to remain the case for fact-finding? I believe... No, you're honor. And the reason I say that is because any kind of kinship, kinship, which would be... In a situation where she believes she's close, any kind of kinship would be a position that you would have to... That could be presumed as being biased. Fourth cousin twice removed would be a subject for implied bias. Probably not, but in this case... You just said any kind of kinship. I mean, that's what we got to deal with. We're talking about the Grease of Containment here, and she doesn't give us that. She doesn't say, it's my first cousin, and we're very, very close friends, see each other all. There's nothing like that. Are you a distant cousin to know we're close? What does that mean? Right. I would then relate the court to a United States versus Burr, which is a 1807 case, which you've just decided, John Marshall, talks about kinship in that case. I don't... I didn't actually bring the case to the court, but when you had... Well, and I understand we have the issue of how close it was, and we may have to have a factual record on that. So that's the point. Would you... Would you concede then that if there's a factual question on that, that's something that the district court maybe should look into? Possibly. Yes, sir. Well, there was going to be a problem here. If you thought there would be some bias here, why didn't you ask additional questions being brought there to the juror? I believe that his trial council made an error for tonight. No, no. But, no, no. The trial council made a decision. We can't say he made an error, or he did the right thing. He made a decision based on what was befriending him, that he was satisfied, that you're a city. He might have wanted that juror. I don't know. I can't say it's error. You know, you did it more than I did. So I can't say it's error. All I know is, trial council thought it was unnecessary to want the error a close cousin and he further. Why shouldn't that be enough for us? Well, the reason is, Judge, the error would be unreasonable to see a bias juror. I mean, it would be unreasonable. But if you're putting that around it into having it, trial council said to himself, he knew he could have challenged her, and he knew he could have asked additional questions of her. He said, he might choose a sort of cousin or whatever. But he made a decision to let her sit, and he did that right that decision, without asking the judge to go on the interferon. Then what right do we have as an appellant court, the second guest for the lawyer who was in the trenches, named when the decision was faced. And that circumstance, if there's a reasonable cause that believe it, this juror may be biased, it would be unreasonable in that situation for him to not request additional voidier, in terms of whether or not she's biased or not, because it would be unreasonable to have a juror on a jury that's biased. Which are standard of review on this particular number, juror number 97, 20, 80. It would actually be plain error, however. So that's even a clever shot, isn't it? Unless we can come in through the structural defect aspect of it being that this is having a biased juror on a jury affects its constitution like the due process. And also, to add on what your accountant is saying, there may be the categories to deal with. You get a knock-out, you get an acquittal, he ever walks away, you get a conviction, you go, hold on, there's problems here. And let's stop. For defense counsel, I've challenged the court of close. Right. In other words, and let me just add on that, if we were to hold this, you suggest, wouldn't we be giving defense counsel and sort of a perverse incentive to not challenge people for cause or seek further voidier because it would give them another opportunity to say, oh, oh, my constitutional rights are violated on a plain air standard, even though I didn't say boo about it at the time when I could have dealt with it. Well, we've got a situation in this case, Judge, where juror 97, I mean, juror 28 was not the question of the closeness of the constant guinity, the blood relationship was not challenged. However, he did at some point make an effort to challenge juror 97, which would show that at some point he was in a position to... Let's hear what one juror is talking about. 28, you never challenged that. Right. Okay, that's... When would we be a position that has been assured, alluded to, getting this lawyer a second bite at the apple? He's playing age here, he's going to put someone on a juror who hopes to be a not guilty, and that the guilty case should challenge her later on in the Eiffelic case. Well, I don't think you'll ever get a situation where the jurors is as extreme as this situation here, is where you got a potentially a close cousin of a prosecutor in the jury. And that circumstance, I think, that the... as we agree that the more prudent they do is conduct additional voidier. A lot of people, the first islands are related to one another. That's correct. However, and that is precisely the problem we have here, having a relative of a participant in the trial, because we don't have a stenographer in the jury deliberation, we don't know specifically what influence or effect of having that individual being on the jury. Let's turn if we can for just a second to juror 97. I'd like you to answer the argument that is... that's made by the government here, that this is really no different from the 1950 Supreme Court. The court case where the court said, oh, the mere fact that somebody works for the government isn't enough to imply bias. And here you've got the police department, which is not the prosecutor, and that's extending implied bias too far. There were an employee of the prosecutors offset to be one thing, but an employee of the police department has once removed, therefore, known, applied bias. What's your answer to that? Answer to that is the juror 97 had a working relationship with the two witnesses, two key witnesses in this case, which is different from the 1950s case where all you had is just employees who worked for the postal service, where there was no actual connection to participants within the trial. In this case, the two police officers had an actual working relationship, with that juror. As you said, she worked in something different. He was out in the field, she was a supplier, or something like that. So they didn't really, as you say, work together, except they worked for the same employer. Well, what makes it... This is not an exceptional case, but exceptional. It's not much for which bias should be applied. It's actually not listed, but it is. And the reason is, is because they had regular interaction in the discharge of their duties. Well, trial counsel didn't seem to want to develop how close they worked. Did there be no request for a further wide air commitment? Well, actually, he filed a motion to excuse that juror. At that point, I think that gave the trial court the opportunity to conduct additional void air. But there were some additional void air. He could have answered additional void air. Right. Well, at the very least, he had unused the challenges he could have used to be for, he was going to be so detrimental to his case. Precisely. However, he objected to it on calls after the fact. Well, that was after the patent was formed in. Actually, I believe it was actually before there was sworn in. But he could have challenged her for cause, is he had a corrective challenges like? Yes. Correct. Correct. And after what there was over it, before there were any panels, he actually, at that point, filed a motion to strike that juror. I think there were also four additional jurors on the two days. Well, because she was so biased, she was going to be so biased. Why didn't he strike up the jury? Well, I think that was error on his part. And having a juror who was on the jury, who's biased is actually in there in this position. Thank you, Councilor. Thank you. Morning, Honor. I'm Is from my junior and I represent the Appellate United States in America. This matter. Y'all know, in this matter, the Sixth Amendment guarantees the rights of the defendant to be tried by an impartial jury. This is exactly what occurred in this particular matter. The Supreme Court of Defined and Impartial jury has a juror that is impartial and indifferent. In this particular matter, juror number 28, which indicated that she is a relative of the prosecutor. She stated that she is a blood relative. I said close cousin. That's correct. So why given justice? Given justice, O'Connor's statements in Phillips, and our adoption of that in our case law, why shouldn't the district court have immediately understood, oh, you're a close cousin of the prosecutor? That's going to be a problem. Well, first of all, she stated the question was, what is your relationship or your close or your distant? She stated, first of all, close. And then she qualified, she says, but I don't think that has anything to do with it. So, right? Right, but I mean, isn't the problem thing to send this case back and have the exact right now? I'm exactly what was done by the close? No, you're not. In Smith, this case is fractionally different from the case that you have cited, which is the Smith case. In the Smith case, the defense didn't know anything about the potential conflict of juror. The defense didn't find out about it until after the juror is verdict. How is that relevant? The question was implied bias. All the case law indicates that implied bias is a problem whether or not the person in the position having bias imputed to them thinks they can be fair or not. It doesn't matter whether they think they can be fair. It's a statement by the law generally that if let's make it closer, okay? What if juror 28 had said, yeah, he's my husband. Would you say, he's my husband, but that has nothing to do with it. In fact, we don't get along all that well. I think I can put that out of my head and be completely fair here. Would you say that her saying, I can be fair, would erase the problem? To be quite honest, in that type of relationship, husband and wife, I think that would be considered implied bias. Right. So the question isn't whether the person, as to whom implied bias is being asked, thinks they can be fair. The question is whether they're so close that the public generally looking at that would say, that's just flat unfair. That can't be a fair trial. No matter whether they think they can be fair or not, it can't be fair. So her statement, yeah, I don't think that has anything to do with it. I can be fair. That's irrelevant if she's truly a close relative of the prosecutor, correct? That is correct, you're right. Okay. So getting to Judge Chaguerre's question, since it's hard to know what close cousin means without any more in the record than that, shouldn't the district court have to wrestle with that? Should this go back so that the district court can figure out what is close cousin means? No, you're right. If you look at the board there, she was very transparent. She knew that there was a relationship between her and the prosecutor. The defendant had noticed of this particular relationship. What's the relevance of that? The relevance of the notice. The relevance of the notice is that he has an opportunity to dismiss the juror for cause or for... Accept that, I accept that for purposes of discussion. Let's say for purposes of argument that he made a strategic decision or that he fouled up, doesn't matter what, but he chooses not to do something which, in fact, is the case here. If, in fact, there is a close enough relationship between the juror and the prosecutor that one could rightly say there's implied bias, what does it matter what the lawyer thought? Your Honor, in an implied bias, there would be a degree in which the court would indicate that. This person is so close to the prosecutor that no matter what they said, they basically could not be trusted with the evidence. Are you suggesting that a first cousin could never be close enough to fit that mold? I am suggesting that a cousin would not be close enough to fit that mold. What I am suggesting is, in this particular matter, on all matters, that a close relative in this matter would be someone such as a brother or sister, mother or father, I would even go as far as maybe not. A cousin in this particular matter? You're going to say an aunt would be enough, but a cousin wouldn't... That is correct here. Can you help us understand what would be the legal distinction there? Because now you're making an assertion about degrees of consanguinity which I'm not aware that there's any basis for statutorily or in common law. So if you can help us with that, that would be great. There's nothing in the basis of statutorily or in the case law as to what is a close relative. What the government is asserting on it is that this person was transparent. She said that she is a close relative. However, she also indicated right off the bat that doesn't mean anything to her. She indicated that doesn't mean anything. What does that happen to you think you do it? The court, the judge was there, the attorneys were there. They were able to look at her demeanor. They were able to listen to her transparency and to make a judgment about this particular individual. I get the feeling we're talking past each other, Mr. Myers. Would you concede that if there really is a basis for saying there's implied bias, that what she thinks has nothing to do with the question? If there's implied bias, it doesn't matter if the person absolutely to their core of their being believes they can be fair. It's irrelevant because the question isn't can you in fact be fair? It's can people generally look at a circumstance where you're that closely related and believe that it's going to be fair. That is not you, the implied bias juror, but the public generally. Isn't that the implied bias question? That is the implied bias, not for you. So once again, don't you have to concede that if juror 28 is a close enough relative that one could say there's implied bias, that her statement that I don't think my relationship has anything to do with it is completely meaningless. No, you're not. Well, does standard review have any, two different standard reviews for 97 and 28? For 28 it's clear error, correct? Yes, Your Honor, clear, plain error. So that gives you a little breathing space. Yes, it does Your Honor. So that we can even find that it was error, but basically the rough requirements of truly plain error, you'd still be home-credits. That is correct, Your Honor. But is the error here such a thing very close to a thought consistent with Justice of Congress's current opinion, that we should find that this error even under clear error, is a structural defect in the proceedings and not merely an error, a clear error. Your Honor. I mean, as Judge George pointed out, if this is something which goes to beyond an exceptional pace, but goes to a structural error, then we don't have to question that's the way there's any prejudice. That's correct. Now, having a cousin for the prosecutor here be a clear, a structural error. No, Your Honor. It would not be a structural error. Why not? Well, first of all, if you look at the questioning and the answers, there's absolutely nothing that would give the court any indication that she would be biased whether actual or implied. But a structural error, it goes beyond whether the person thinks or does a thing. It goes to the integrity of the judicial system itself, where maybe they could be, it assumes that they would be unbiased. But it says that we would not allow something like this to even exist because of the potential. That is correct, Your Honor. And why, in the future, we look at this even if it's the plain error stand over view as they such that as a structural error, we don't even have to question whether or not they would be biased or not. It's been something that we should not be proud of, people trying for crimes, man, sitting on the juror, on juror are people who are related to the government. Well, Your Honor, there is case law in this particular matter. In the case cited by the Defense Torres, the United States versus Torres, on page 47, the second circuit stated in Dicta that although not arising to per se implied biased category, relative of a prosecutor might in a particular case be excluded. Now, even the third circuit said that, yes, they are, even the second circuit says, yes, they are situations in which a close relative of a prosecutor would be implied biased. However, if you look at the statement instead, might, in the case that there are certain instances where a relative of a prosecutor being on a jury would not be considered implied biased. Well, there is nothing that is record that would indicate that she would or would not be. The record just, it wasn't developed sufficiently for my money. But I tell you from your argument that you would acknowledge that there is error here, but your position is why it's not clearer. It's not clearer. But there's error. Well, Your Honor, my first position is that there's not error, because there was enough question of the juror. But if there is error, it definitely does not rise to the level of clear error. How much question is there, is there a couple of words back and forth that was the whole thing? Well, she was a grilled at all. Well, I believe that her answer close, but that doesn't mean anything. Basically, cut off the judges' question, because it gave some indication that she could be fair. And then when he went further to ask whether you could be fair in her parcel, she said, yes, she could be. Your Honor, in terms of the juror 97, since your clients kind of go with you? Yes, Your Honor. In terms of juror 97, the case that I cited, Dennis versus US, which they tried to bar all the government workers. I believe this is a similar situation. This juror was a person who handled the property for the police department. Never for the police department and knew the testifying officers from her appointed him the same agency. That is correct, Your Honor. But that's not close enough, huh? No, Your Honor. She is not an investigator. All she does is that she hands out, she's responsible for the property. She gives property to the officers. Now there was... Would have been close enough if she was right in the squad car with him? Yes, that would be close enough. Would it be close enough if she weren't right in the squad car, but she was a fellow officer in the field and it's sometimes song in the field? Yes. So would it be close enough if she never saw him in the field, but she was still a field agent? Yes, I believe a field agent in this particular matter would be close enough. So is it... It is the fact that she doesn't go in the field, but she's still a police department way. She issues them... She issues them material uniforms. I don't know for all we know, the supplies she gives them include and them the guns and ammo that they take out. That's not close enough because she doesn't lead the office. Well, it's not that the fact that that's not close enough that she doesn't lead the office. She doesn't have a very close working relationship with all of the officers. There were several officers that testified. She only mentioned two of the officers, one of the officers that was on the scene and another officer that was a forensic officer. The main officer who did the arrest, she didn't even mention. She said she didn't mention his name. She knows one of the officers at least who's directly involved in the arrest and is a testifying witness. That is correct, Your Honor, officer Taylor. And she, in her job, has interaction. They're both employed by the same police department and she says, I know him from work. So it's clear that there's a working relationship there. Why isn't the fact that there's a working relationship, even if it isn't a working relationship in the field, enough to say, implied bias? You Honor, that's not enough to say implied bias because they're not this, she didn't say that they will have a close working relationship. Her job was to issue him equipment and to make sure that equipment that he kept the equipment and that he works with the equipment, Your Honor. This was not an investigator. This was not at a police officer. This was not someone in the field who they see every day, who they see a crime scene. This is just a person in the office who's handing out uniforms and bulletproof vest. That's not a close enough relationship we are. Thank you, Council. Thank you, Your Honor. Mr. President, you are on number 97. We know he is a coworker. She's a coworker that has interactions with at least one of the star witnesses. How do people employ a police department to have an right there? There's a practical issue in a small community and potentially if we come up with broad rules to know any danger, that's a big problem. No, I understand that. However, in this situation, just having a police officer who's another person, having a property clerk who does not have interaction with these officers, it's something completely different than having a property clerk who regularly interacts with a testifying witness. We don't know specifically what's going to happen in a jury deliberation. She's planning to get a jury deliberation when we don't know specifically what to believe in. Is a coworker in this position subsumed under the applied bias role? I believe it is because a prostitute may be seen in my understanding when interpretation would be the prostitute's office as well as the police department. There was no actual bias shown in the Department of Life at 7. There was no... The factual record did not substantiate actual bias in this case. So we just kind of limited it to apply to another. I think the voidier on both jurors went to whether or not there was actual bias rather than asking you to avoid hearing the term, whether or not implied bias could have been here. That's where the factual record stopped as far as I'm voidier. But with respect to the 90s... Are you... Are you conceding the council that... and it sounded like you did a moment ago, that it's possible to be employed by the Virgin Islands Police Department and still not be subject to an implied bias in a criminal case? I can concede that. The only... So it's the fact that this particular property clerk had interactions with a witness in the course of job duties that you say makes it a case of the applied bias? Yes. Which would distinguish this case from the 1950s case, I think it was the Dennis incision, whereas the Federal Times crack all over the witness. If any of those double witnesses had then additional step of having interactions with the witness and that would be a problem. A police witness, that would be a problem. And that's what respect to the number 97. But go back to 20 years, I think in Justice O'Connor's concurring opinion, she uses close relatives. She doesn't define the close relatives of his. Mr. Manning, can you help us out with the question of perverse incentives here that was raised before and I'm not sure we got any answer to it? If we were to agree with you that there's a problem here, how could we manage addressing that without somehow encouraging defense lawyers to sit on a problem like this and not mention it with the hope as Judge Gere said that if they win, they win great, but if they lose, they can pull out of their back pocket. Wait a second, structural defect. I think within our circuit, the doctrine of implied bias has not been at the forefront of the determination of actual bias when you deal with jurors. And I think this is the situation where it went over the head of the trial court. I mean, trial judge and also went over the head of the trial council. So if that's true, are you conceding that there's no plane error here that it wasn't planned? It shouldn't have been planned. Actually, I'm not suggesting that there was plane error because the law is clear enough when you go to the Supreme Court level and you look at what the other circuits are doing. But in this case, the fact that you've got a close cousin and also an employee of the police department has that interaction would raise rig for the court. And that's enough to raise rig for actually to do something more than just try to do some actual bias of what you're doing. So with respect to Justice O'Connor's position, I think that she does not define what close relative would be. I think she just uses close relative. And in this case, we've got a juror who admits all the references on a close relative. And I think that is a good one. So with the appropriate remedy here, be remaining it for more fact finding? I believe that the fact that she conceded that she was a close relative not distant in and of itself would lead to the... I'll write a reversal. That's my position. Thank you very much. Thank you, Council. Thank you for the excellent arguments. We'll take the case under advisory. We have a good, perfect, very important. Please rise