March 23, 2016 – After his conviction, a court granted Todd Tobatto a new trial because his lawyer did not request removal of a particular juror during voir dire. A state appeals court recently reversed, concluding the juror did not show subjective bias.
Tobatto was charged with stalking his ex-girlfriend and violating a restraining order. Thirty potential jurors sat for jury selection. When asked by the prosecutor, nine jurors said they had been harassed by an ex-lover following a bad break-up.
The state questioned one juror (Juror 10) more specifically. She said her ex-boyfriend threatened her after they broke up, and she obtained a restraining order against him. The prosecutor asked if she could set that experience aside and be fair and impartial.
Juror 10 said she didn’t know if she could be 100 percent objective because her personal experiences impact what she believes. But she also indicated that she would follow instructions and not go against the law. Tobatto’s lawyer did not question Juror 10, did not move to strike her for cause, and did not exercise a peremptory strike.
Juror 10 became part of the jury that convicted Tobatto. His postconviction motion alleged that his attorney, who used five peremptory strikes against other jurors, was ineffective for failing to argue for Juror 10’s removal. Tobatto said she prejudiced his trial. He also said the judge should have removed Juror 10 and another juror for cause.
At a postconviction hearing, Tobatto’s lawyer said he thought Juror 10 would be a good juror for the case, despite her history, based on her demeanor. Trial counsel said Juror 10’s answers indicated she would try her best to be impartial in assessing the facts.
Peremptory strikes were used on other jurors who seemed highly emotional, blatantly impartial, or not as confident in their answers as Juror 10, trial counsel said. However, the court granted Tobatto’s motion for a new trial. Recently, the appeals court reversed.
In State v. Tobatto, 2015AP254-CR (March 8, 2016), a three-judge panel for the District I Court of Appeals concluded that Tobatto was not entitled to a new trial.
“Because we are not persuaded that Juror 10’s responses unequivocally revealed subjective bias, we conclude that counsel was not ineffective for failing to remove juror 10 from the jury panel,” wrote Judge Joan Kessler for the three-judge panel.
The panel noted that Juror 10 affirmatively answered that she would follow the court’s instructions and, despite her history, would not go against the letter of the law. The record supported the conclusion that Juror 10 was not subjectively biased, it noted.
“Counsel, who was present at trial and observed the entire jury panel, including Juror 10, articulated reasonable strategic reasons for not removing her from the jury panel,” wrote Judge Kessler, concluding that trial counsel’s performance was not deficient.
The panel granted no deference to postconviction findings on subjective bias, because the postconviction judge was different than the trial judge. Thus, the postconviction judge did not observe Juror 10’s demeanor and disposition during voir dire.
