Yakima County District Attorney Joe Brusic will not challenge an appeals court’s decision to overturn a man’s assault conviction because an ethnically biased juror heard the case.
As Brusic’s office decides whether to try Robert Gutierrez III again or strike a plea deal, Brusic said he will use the case as a learning experience with his deputies to deal with the biases implicit in selecting the jury.
“It starts with me,” Brusic said in a phone interview Friday. “It is my responsibility to make sure other prosecutors understand” what to do in a similar case in the future.
In a 37-page decision released Thursdaythe Spokane Division III Court of Appeals ordered the reversal of Gutierrez’s convictions for second-degree assault, unlawful possession of a firearm, and criminal harassment, and the case was returned to court Upper Yakima County.
In their findings, the three-judge panel criticized Judge Gayle Harthcock, who presided over the trial, for failing to remove the juror on her own initiative after the juror’s bias against Latinos was revealed during selection. of the jury.
“Where a juror expresses actual bias and attorneys fail to come to excuse the juror, the court has an obligation to conduct an independent investigation and excuse the juror if the court is satisfied that the juror cannot not adjudicate matters impartially and without prejudice to the substantive rights of the parties,” appeals court judge Tracy A. Staab wrote for the panel.
Gutierrez, a 50-year-old man from Sunnyside, was tried in October 2020 for first-degree robbery, second-degree assault, first-degree unlawful possession of a firearm, and criminal harassment. The charges stem from a February 2020 incident in which Sunnyside police allege Gutierrez threatened to kill his stepfather, fired shots into the ground in front of him and took his stepfather’s phone. after refusing Gutierrez’s request for money.
During jury selection, at the Yakima Valley SunDome, Gutierrez’s attorney, identified in Superior Court papers as Christopher Swaby, questioned a perspective juror who thought the citizenship status of Hispanic and Latinx defendants should be awarded to the jury, according to part of the trial transcript included in the published decision.
The prospective juror said that in two cases he was summoned, he was never told whether those defendants, who were Hispanic, were US citizens.
“How about asking now if (Gutierrez is) a US citizen,” the juror offered, according to the transcript.
Swaby, according to the transcript, told the juror he couldn’t ask that question, then asked the juror if he could give Gutierrez a fair hearing if he wasn’t a U.S. citizen.
“If I didn’t know that, I would have — I guess there’s no reason to question that, I guess, whether he was a US citizen or not,” the juror replied, according to the transcript. . “If he’s not a US citizen, he’s already guilty. He shouldn’t be here.
“Well, fair enough. That’s a good point,” Swaby replied, according to the transcript. , assault, possession of a firearm, you wouldn’t say that because it’s completely separate, right?
“Yes. Yeah. I mean, if I don’t know – I just want – that would be – that wouldn’t be part of – my answer. So, yes,” the juror replied.
Swaby did not remove the juror for cause or with a peremptory challenge, which allows a lawyer to remove a juror from consideration without giving a reason.
Harthcock also did not comment on what the appeals court described as the juror’s “displayed bias” or dismiss him, the appeals court noted.
The juror was only identified by his number, 16, in court records.
The jury acquitted Gutierrez of the robbery count, but found him guilty of the other counts and he was sentenced to nearly 11 years in prison.
Calling it a “clear constitutional error,” Staab said Harthcock could have removed the juror on his own initiative after hearing the juror’s actual bias toward Hispanics and Latinos.
Brusic’s office argued in the appeal that the prosecutor in the case, identified in the trial record as Chief Assistant District Attorney Brian Aaron, believed the juror was asking about an unrelated matter. , and that any possible bias had been “healed”. by the juror’s response to Swaby’s questions about whether he could hear the case fairly.
But Staab disagreed with this assessment.
“This does not cure Juror 16’s presumption that the citizenship of each Hispanic or Latinx defendant was suspect and should be verified,” Staab wrote.
Chief Justice Laurel Siddoway and Justice George B. Fearing agreed with Staab in their own opinions.
While agreeing with the decision to overturn the conviction due to juror bias, Siddoway questioned whether enforcing state Supreme Court rulings to fully investigate allegations of Bias in jury deliberations should extend to the selection process, where the judge is only required to intervene if the lawyers have failed to resolve the issue.
To do otherwise, she said, could result in judges playing a bigger role in jury selection than the state’s highest court had anticipated.
Fearful, with his agreement, argued that a juror who exhibits deep-seated bias, even after rigorous questioning, should be dismissed.
“The trial court should lean toward disqualifying a potential juror of questionable impartiality, rather than testing the limits of discretion in allowing such a juror to sit,” Fearing wrote.