A federal appeals court threw out a 14-year prison sentence and ordered a new trial in a child pornography case because a judge didn’t remove a juror who couldn’t vow to give the defendant a fair trial.
On Tuesday in United States v. Shepard, the U.S. Court of Appeals for the Sixth Circuit vacated Trent Shepard’s December 2011 sentence and ordered a new trial. Shepard was convicted before U.S. District Judge David Dowd Jr. of three counts of receiving visual depictions of minors engaged in sexually explicit conduct.
“[T]he role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court,” Senior Judge Martha Craig Daughtrey wrote, joined by judges R. Guy Cole Jr. and Julia Smith Gibbons. Trial judges, she stressed, must safeguard the accused’s constitutional rights “from the whims of public opinion, prejudice, and expediency.”
The sentence included five years of supervised release with a ban on access to computers, cameras or video equipment without written approval from the court or a probation officer. Dowd ordered Shepard to pay $3,000 in restitution to child victim “Vicky.”
During voir dire, the juror in question answered yes to a written question about whether the charges involving sexually explicit materials rendered him “predisposed either for or against the defendant or the government,” according to the opinion.
The juror told the judge he didn’t know of any reason he could not be fair and impartial. But later that day, he left a voicemail for a court deputy saying that he couldn’t look at images of minors engaged in sexually explicit conduct that were among the evidence.
The next day, under further questioning, the juror made similar statements to the judge and the prosecutor, saying he would close his eyes when that evidence was presented. He said he didn’t feel he could serve because he had two small children and didn’t want those images in his head.
On the first day of trial in August 2011, Dowd rejected a defense motion for a mistrial on the basis of the juror’s comment to a fellow juror. Referring to his voicemail expressing his worries, he said he had he called court officials “because I thought it would be a rough day.”
Following the verdict, Dowd filed a written memorandum expounding on his reasoning. He cited the lack of alternate jurors on the panel and the possibility that other jurors might also ask to be excused.
The Sixth Circuit upheld Dowd’s denial of the mistrial motion because the comment in question “did not inject any information or context into the trial or into the jury room that was not already conceded by the defendant himself.”
Even so, “it is equally clear that [the juror] should not have been permitted to sit on Shepard’s jury,” Daughtrey wrote.
“Here, despite his earlier pronouncement that he could be fair and impartial in serving on Shepard’s jury, [the juror] later informed the court that he had serious doubts about his ability to do so. Although the district court sought to frame those doubts merely in terms of an ability to view certain evidence, [the juror’s] comments on the morning that evidence was actually presented were much more troubling.”
Under the circumstances, it was necessary to reverse the conviction and vacate the sentence “in order to preserve the sanctity of the defendant’s Sixth Amendment right to be tried by a fair and impartial jury,” he wrote.
“We have no comment at this time,” said Mike Tobin, the spokesman for the U.S. attorney’s office in Cleveland. Daniel Ranke argued the case for the office.
Shepard’s lawyer on the appeal, Gregory Napolitano of Laufman & Napolitano in Cincinnati, did not respond to requests for comment.
Sheri Qualters can be contacted at firstname.lastname@example.org.