By M. Allie Clayton
Today, in the criminal case of United States v. Powell, a published opinion, the Fourth Circuit affirmed the District Court in holding that a juror’s statement of “everything would be alright” and that the father needed to give his son “a good kick in the butt” was too ambiguous to establish actual juror bias. Because the statement was ambiguous, Powell’s counsel’s response was within the range of competent representation, and thus not a violation of Powell’s Sixth Amendment right.
Facts and Procedural History
In June 2005, Powell was convicted by a jury of numerous drug and firearms charges. The district court sentence of 300 months’ imprisonment was affirmed by the Fourth Circuit on direct appeal. The Supreme Court vacated the judgment and remanded for resentencing due to Kimbrough v. United States. On remand, the District Court resentenced Powell to the same term. Powell again appealed the judgment, which was affirmed by the Fourth Circuit, and the Supreme Court denied certiorari.
In this case, Powell has filed a 28 U.S.C. § 2255 with 16 different challenges to his conviction and sentence, most of which allege ineffective assistance of counsel. The specific claim as to ineffective assistance of counsel in this case is that his trial counsel’s performance was deficient because she did not bring to the attention of the trial court the fact that a juror approached Powell’s father and told him “everything would be alright” and that “he needed to give his son ‘a good kick in the butt.’” Powell alleged that the statement by the juror demonstrated that the juror was biased against him and if his counsel had brought this to the attention of the court, the court would have inquired about the juror’s prejudgment, and possibly removed the juror and replaced her with an alternate.
Is the juror’s statement of “everything would be alright” and that “[Powell’s father] needed to give his son ‘a good kick in the butt’” sufficient to demonstrate a juror’s actual bias—thus requiring Powell’s counsel to bring that to the court’s attention?
Sixth Amendment Right to Effective Assistance of Counsel
Under Strickland v. Washington, there are two requirements for a defendant to prove a violation of the Sixth Amendment right to effective assistance of counsel: (1) the counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.
Under the first prong, the defendant must meet a high bar. The defendant must prove that his counsel’s representation fell below an objective standard of reasonableness, and that counsel’s errors were “so serious that counsel was not functioning as ‘counsel.’” The court is required to give a great amount of deference to the counsel’s decision-making and must be careful to eliminate any hindsight distortion and evaluate the decision from the counsel’s perspective at a time.
Sixth Amendment Right to an Impartial Jury
There is a presumption that jurors are impartial, unless there are indications to the contrary. To be impartial, under the Sixth Amendment, the jury must be able to decide the case based on the evidence before it. The question regarding juror impartiality is whether a juror can lay aside her opinion and render a verdict based on the evidence presented in court.
As it relates to this specific case, the “question is whether the juror’s statement to Powell’s father indicated that the juror was biased and unable to decide the case solely on the evidence.” The next question is “whether counsel’s failure to bring the statement to the attention of the court amounted to constitutionally deficient representation.”
In this case, the statement’s meaning is not clear. A reasonable lawyer who was told of the statement could conclude that the juror’s statement was “so ambiguous that it could not be taken as indicating that the jury was actually incapable or unwilling to base a verdict solely on the evidence presented at trial.” The actions of the lawyer in not bringing the matter up were reasonable not only due to the ambiguous content of the statement, but also the risk of alienating the juror based on the mere act of inquiring about the juror’s bias. A reasonable lawyer could have concluded that the client’s interests were best served by not bringing the statement to the attention of the court.
The record further established that the lawyer was reasonable in not bringing the matter up because of how unsure she was as to the significance, if any, of the statement. Even Powell and his father only described the statement as “troubling” or “strange.” Powell and his father never stated that they felt panicked when they realized the person who made the statement was a juror in Powell’s trial. Those facts alone indicate that even Powell and his father did not take the juror’s statement as demonstrating a “clear and unmistakable bias against Powell.”
While it might have been more prudential to bring the matter to the attention to the court, the failure to pursue the issue with the court was not so problematic as to make defendant’s counsel’s performance constitutionally deficient. Therefore, the district court’s order denying Powell’s § 2255 motion is affirmed.