The SJC ruled in Commonwealth v. Colon (1) that the judge erred in restricting the defendant’s presence at the voir dire of the deliberating jurors by depriving him of a translator; and (2) that, henceforth, in cases of murder, sexual offenses against children, and rape, “where a defendant … requests individual voir dire [of the prospective jurors] on the issue of … ethnic prejudice, and the defendant and the victim are of different such backgrounds, that request should be granted.”
The background was as follows. The defendant, who is Hispanic, was charged with murdering the victim, who was Caucasian. During jury deliberations, juror no. 15 revealed to a court officer that she feared the defendant. “The judge found that juror no. 15 could not remain impartial and excused her. Because juror no. 15 reported that [other jurors] had expressed similar … fears, the judge conducted an individual voir dire of each of the remaining members of the jury.” Juror no. 1 also was excused. “Throughout the trial, the defendant made use of … Spanish interpreters, who spoke to him through a headset.” During the voir dire of juror no. 15, the defendant was not provided with a translator. “After juror no. 15 had been dismissed, and before any of the other deliberating jurors had been interviewed by the judge, defense counsel requested that the defendant be present during the voir dire of the remaining jurors. The judge, however, was concerned that the jurors would not speak candidly about their fear of the defendant if they knew he was listening.” The judge decided, therefore, that the defendant “‘[could] be present, but not present with ears.’ The judge effectuated the defendant’s presence ‘without ears’ by prohibiting interpreters at sidebar during the individual voir dire, such that the defendant could ‘watch’ but would not understand what was being said. Defense counsel then could relay pertinent information to the defendant at a later point. Defense counsel agreed that, if a juror were excused, counsel would tell the defendant only that it was for ‘personal reasons,’ without explaining that any of the jurors had expressed fears of him.” On appeal from his conviction, the defendant contended that by restricting his presence at the voir dire of the jurors, the judge violated his right to be present at a significant stage of his trial. Also on appeal, the defendant contended that the judge deprived him of his right to an impartial jury by declining “to conduct individual voir dire [regarding] prospective jurors’ ethnic bias.”
In its decision, the SJC opined that the judge erred in restricting the defendant’s presence at the voir dire of the deliberating jurors by depriving him of a translator. The Court stated that “‘[a] judge may not bar the defendant from a voir dire during which jurors’ impartiality may be discussed’ (citation omitted). [Commonwealth v.] Angiulo, 415 Mass. [502,] 530 .” “Where, without any action on his part, jurors fear a defendant, he does not forfeit his right to be present.” “Counsel’s presence at sidebar and intention to relay information to a defendant does not substitute for the defendant’s presence [with an interpreter]…. This is especially so where, as here, counsel agrees to restrict the information that he would share with the defendant.” The SJC concluded, however, that the restriction of the defendant’s presence did not create a substantial likelihood of a miscarriage of justice. “Had the defendant been [fully] present during voir dire, little would have changed. Of the twelve jurors questioned, two were dismissed after expressing fear related to the defendant. Defense counsel then moved to dismiss all of the remaining jurors. The judge denied that request, over counsel’s objection. Because his attorney already had moved to dismiss each juror, there was nothing more that the defendant could have requested.”
Regarding the judge’s failure to conduct a voir dire of prospective jurors as to potential ethnic bias, the SJC noted that a voir dire as to bias must be conducted in cases of interracial murder, interracial rape, and interracial sexual offenses against children, but that “[u]ntil today, we explicitly ‘have declined … to extend this rule to cases where the defendant and the victim are of different ethnic backgrounds.’ [Commonwealth v.] Hunter, 427 Mass. [651,] 654 ).” However, “research has shown that people of Hispanic and Latino descent — not unlike African Americans — are more likely to be treated severely by juries when accused of killing a Caucasian victim.” “There is no principled reason why a Hispanic defendant charged with murdering a Caucasian victim should be entitled to fewer protections against potential bias than an African- American defendant in the same position.” “Therefore,” stated the Court, “as a matter of our supervisory power, in cases of murder, sexual offenses against children, and rape, decided after the issuance of the rescript in this case, we … require that, where a defendant … requests individual voir dire [of the prospective jurors] on the issue of … ethnic prejudice, and the defendant and the victim are of different such backgrounds, that request should be granted.”
If you or a loved one is charged with a criminal offense and planning to go to trial, it is critically important that you have a jury that is fair and impartial. To ensure that you obtain such a jury, you will need a skilled and experienced attorney who is well versed in the law and who has substantial trial experience. Attorney Daniel Cappetta has successfully taken many cases to trial and works zealously to make sure that all of his clients have a jury that will consider the case without bias or prejudice. Call Attorney Cappetta today for a free consultation.