Seventh Circuit Week in Review: Can a Defendant Waive the Right to an Impartial Jury?

The Seventh Circuit had three new opinions in criminal cases in the past week.  The court also withdrew, without explanation, its opinion in United States v. Dunson (No. 08-1691), which I blogged about last week.

In United States v. Brazelton (No. 07-2488), the defendant was convicted by a jury of various drug and gun offenses.  The jury included the second cousin of a man who had once been shot by the defendant.  Voir dire indicated no actual bias on the part of the juror — or even that the juror knew of the shooting — and no motion was made to strike him for cause.  On appeal, however, Brazelton argued that he was entitled to a new trial under the implied bias doctrine, which indicates that close relatives of people with actual bias must be automatically excluded.  The Seventh Circuit (per Judge Coffey) rejected this claim.  After noting uncertainty in the law as to whether second cousins are closely enough related to fall within the scope of the implied bias rule, the court instead decided the case on the basis of Brazelton’s failure to seek removal of the juror at trial.  The court concluded that Brazelton thereby waived any right he had to raise the implied bias claim later.  Along the way, the court noted a Sixth Circuit case indicating that defendants may not waive their right to an impartial jury, thus suggesting the existence of a circuit split on the question.

In United States v. Recendiz (No. 06-1754), three defendants were convicted of various drug-related crimes.  They raised many issues on appeal, but all of their arguments were rejected without much difficulty by the Seventh Circuit (per Judge Kanne).  The case provides a notable example of an opening-argument blunder by a defense lawyer, who seemingly assumed the burden of proof in the case (“[W]e don’t want those advantages [of the government bearing the burden of proof].”).  The court nonetheless rejected the defendants’ predictable claim of ineffective assistance of counsel, relying in part on correct statements of the burden on proof in closing arguments and during the jury instructions.

In United States v. Avila (No. 07-2404), the defendant was also convicted of drug-related crimes.  Avila raised several issues relating to his conviction on appeal, all of which were rejected by the Seventh Circuit (per Judge Kanne) without breaking any new legal ground.  Avila won a resentencing, however, on the basis of an inexplicable error by the sentencing judge in determining the applicable guidelines range.  One wonders how the lawyers missed what appears to have been an obvious mistake.

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