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A fair and impartial jury does not include prosecutor's brother-in-law as foreman.

Blog photo from Attorney John E. Reynolds Lexington Kentucky.  Prosecution commits reversible error in jury selection

The Kentucky Supreme Court has reversed the Court of Appeals after it was discovered that a criminal trial jury foreman was the brother-in-law of the Assistant Commonwealth Attorney whose office was prosecuting the case. In Phillip Edmondson v. Com (2016-SC-000427-DG) Justice Cunningham found that the Defendant's "fundamental right to a fair and impartial trial was violated." Although the assistant prosecutor (Hon. Williamson) didn't try the case, he was present during jury selection and helped with jury selection. The opinion states: is Mr. Williamson's silence that troubles this Court the most. As an Assistant Commonwealth Attorney, Mr. Williamson should have been aware of the constitutional concerns that arise from having his brother-in-law serve on the jury. Mr. Williamson witnessed Mr. Greenwell voluntarily disclose to the trial court the relationships he had with numerous jurors, including a cousin and a friend that he had not seen in over twenty-five years. Mr. Williamson witnessed these disclosures, yet declined to volunteer. information concerning the relationship he had with Mr. Danhauer (eventual foreman) despite countless opportunities. Such a concealment is in direct odds with our principles of justice.

This failure to disclose the relationship by Attorney Williamson's part caused the Commonwealth and all parties and participants, great waste and expense. The trial judge failed to order a new trial when the issue was raised on a motion subsequent to trial. The Court of Appeals affirmed the trial court's refusal to grant a new trial. Thankfully, the Supreme Court finally got the case and remedied the mistake by finding reversible error and ordering a new trial, finding the Defendant's constitutional right to a fair and impartial jury had been denied.

So why is this relationship between prosecutor and juror a problem? Voir Dire exists to question potential jurors regarding their prejudice or bias. Personal and family relationships lead to bias and are often the focus of voir dire. Justice requires a fair and impartial jury and even our best attempts to remain unbiased can be challenging. It is simply human nature, despite one's stated desire for integrity.

In his book "My Life in Court," Louis Nizer wrote about innate bias. "The subtleties of loyalty have an unfortunate way of affecting the mind, often without the awareness of the principled man behind the mind. We believe with heart and soul what we want to believe. Fundamentally, this is the essence of persuasion. If one can be made to wish emotionally that a certain result should obtain, he will fined any argument appealing which achieves that goal. This is what Judge Benjamin Cardozo referred to as the judicial process-the "instinctive" reaching of a conclusion and thereafter they reasoned process to justify it. I find not only jurors highly susceptible to this approach, but even the most sophisticated Judges."

Our Supreme Court was quick to recognized the "subtleties of loyalty" that can affect the mind in the Edmondson case. Recognizing it was clearly unfair to allow a jury member to serve on a jury when his relative, or even the relative's office, was prosecuting a criminal Defendant.

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