Perhaps you’ve wondered whether the Second Circuit would ever throw out a conviction because of inadequate voir dire in selecting the jury. Wonder no more. It’s finally happened.
In United States v. Nieves, — F.4th —-, 2023 WL 405354 (2d Cir. Jan. 26, 2023), the defendant, a former gang member, challenged his conviction, following a jury trial, of one count of witness retaliation, in violation of 18 U.S.C. § 1513(b)(1). He argued that the district court’s (Hon. Jed S. Rakoff) abbreviated voir dire left him and the court unable to meaningfully screen prospective jurors for bias against gang members, rendering the trial fundamentally unfair. Simply put, the defendant argued that in a prosecution centered around gang membership and alleged gang-related violence, the district court abused its discretion by refusing to take any steps to effectively screen prospective jurors for bias against gangs or gang members.
The Circuit unanimously agreed and granted a new trial. Judge Lynch’s opinion for the Court recognized that, while district courts have broad discretion in conducting voir dire, that discretion “is not boundless.” Rather, the discretion must be exercised “consistent with the essential demands of fairness,” and must afford the defense “a full and fair opportunity to expose bias or prejudice on the part of veniremen.”
The voir dire in this case did not comport with these standards. Noting that “prejudice against people associated with gangs represented a pervasive bias relevant to a key dynamic likely to arise at trial,” the Circuit ruled that the district court took no adequate steps to “inquire about, or warn against,” that bias. For example, though both the Government and the defense had asked the court to ask potential jurors about their feelings about, or experiences with, gangs, the court refused to do so. In fact, the court “deliberately declined to mention that the case concerned gangs at all, or at least to caution the jurors that any feelings they might have about gangs or gang members must be set aside in service of their duty to decide, based on the evidence presented, whether the government established all elements of the charged crimes beyond a reasonable doubt.”
The Court cautioned that its decision to grant a new trial was narrow:
[W]e do not advocate that the trial judge was required to ask any particular questions; rather, the error was the district court’s resolve not to ask any question that might uncover potential predispositions against gang members, or to provide sufficient context to allow its broader questions and warnings to encompass concerns about such bias, therefore leaving that potential prejudice completely unexplored.
Nevertheless, the Nieves ruling is important and could help persuade district judges to conduct a more searching and thorough voir dire than has been typical in this Circuit. The key is to identify for the judge a systemic or pervasive bias likely to be present in the venire and to propose specific voir dire questions necessary to uncover that bias.
Congratulations to our own Edward S. Zas, who represented Mr. Nieves on appeal, and to Assistant Federal Defenders Mark Gombiner and Andrew Dalack, who represented him at trial.