New trial granted in burglary case over jury selection issue

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A state appeals court has ordered a new trial in a burglary case because of a problem with jury selection.

Defendant Herbert Smith was convicted in July 2018 in Monroe County Court before Judge Victoria M. Argento of third-degree burglary.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, reversed the conviction and granted a new trial.

“We agree with defendant that County Court erred in denying his challenges for cause to two prospective jurors,” the Fourth Department wrote.

When a prospective juror makes a statement that “cast serious doubt on their ability to render an impartial verdict,” that prospective juror must be excused for cause unless they provide an “unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence,” the court wrote.

“There is no question that the statements (made by the two prospective jurors) cast serious doubt on (their) ability to render an impartial verdict,” the court wrote.

The first prospective juror stated, in response to a question concerning police officers, that she “was raised to respect them” and that, because “they’re the people that are protecting you, you should trust them,” according to the decision.

“When further probed about weighing the credibility of a police officer’s testimony against a defendant’s testimony, she stated that she would “most likely (believe) the police officer,” the court wrote.

The second prospective juror said that, because of his work as an emergency medical technician, he saw police “in a very positive light,” according to the decision.

When asked about whose version of events he would believe, the prospective juror stated: “To be completely honest, probably the first responder police officer,” the court wrote.

Both prospective jurors repeated that they would likely believe a police officer’s account of an event over a defendant’s version.

“Their respective affirmative answers when the court asked them if they could be fair and impartial were insufficient to constitute . . . unequivocal declarations that they could set aside their stated bias in favor of police officers,” the court wrote.

After the court denied his challenges for cause, the defense had to use peremptory challenges to remove the two prospective jurors, which exhausted all the peremptory challenges before the completion of jury selection.

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