[00:00:00] Speaker 00:
Good morning and may please the court.

[00:00:03] Speaker 00:
Sam Koistra on behalf of Appellant Fernando Richter.

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I do intend to reserve three minutes of my time for rebuttal.

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The circumstances giving rise to this appeal are simple, but they are extraordinary.

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A longtime Arizona prison guard who worked in prisons directly with prisoners, who was charged with keeping those prisoners safe from assault, who could be hauled into court if he was accused of falling short of that duty, was allowed to serve on the jury, deciding the case of two other longtime Arizona prison guards,

[00:00:38] Speaker 00:
who also worked in Arizona prisons, who also worked directly with prisoners, who also had a duty to protect those prisoners from assault, and who had in fact been hauled into court on the accusation that they had failed to protect Mr. Richter from the serious assault that nearly took his life.

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under this court's established precedent, those are the kind of extraordinary circumstances that give rise to a presumption of bias on the part of that juror, juror number one.

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And the district court should have struck that juror for that reason.

[00:01:10] Speaker 04:
Which case are you referring to, counsel?

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Pardon me, Your Honor?

[00:01:13] Speaker 04:
Which case are you referring to?

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Because I was looking at, you know, Alsop, I think, was the best case for your side.

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Would you agree?

[00:01:22] Speaker 04:
I agree with that, yes.

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The cases that have been decided after that have sort of cabined also to a situation where there's some emotional connection, some really fear of violence, fear or danger to that individual.

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So how do you

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What's your position with regards to the cases that have followed ALSOP?

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So our view is that ALSOP stands for, yes, there's the fear of vulnerability to the conduct that's on trial, but also the employment relationship aspect of it.

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And the Fields case describes it that way.

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Or I believe Rodriguez says it's an employment relationship plus some additional factor.

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In this case, we feel that there is clearly an employment relationship, and there are also additional factors that are present.

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What are those?

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So I'll go through them beginning.

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So first, just to be thorough, the employment relationship.

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This is a case involving a juror who was himself a 10-year veteran employee of ADCRR.

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No longer there, though.

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No longer there.

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It's the timeline for when he left ADCRR.

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I will admit it's unclear from the record.

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The testimony, I believe, is that ER 135 is that he had, however, had been in his new position as an immigration detention officer for a private ICE contractor for, he said, about a month.

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So it does seem like the interval between his time with the Arizona Department of Corrections and ICE was fairly short.

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but he was no longer there.

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But this course precedent when they talk about the employment relationship, there's never been held that the employment relationship has to be contemporaneous to create the kind of relationship that might give rise to an implication of bias.

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I would look in particular just through the negative inference to the United States versus Kavashuk, if I'm saying that correctly.

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It's in the briefs.

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That case involved a juror who was, it was a criminal trial.

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The defendant was an employee of Microsoft.

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and the juror with himself had been a contractor for Microsoft at some time before the employee worked there.

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This court still considered the employment relationship, but they looked at holistically, how long did he work there, what division did he work with, he was a contractor versus a direct employee.

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So the employment relationship is still considered, but it's considered holistically.

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So in this case, we have someone who worked for the Department of Corrections,

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for 10 years appears to have only somewhat recently left that position, the employment relationship is still a factor.

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I will concede a greater factor if he was still an employee.

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It would be a lesser factor if he had been an employee 25 years ago.

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It would be a lesser factor if he'd been an employee for two months instead of 10 years, which is the case here.

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So even though there's not a contemporaneous employment relationship, that consideration is still

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Employee here and obviously this case involves conduct by two ADCR Employees in their capacity right what are the plus factors so the additional factors is the similarity of the employment relationship The conduct excuse me the similarity of the employment experiences to the conduct that is on trial here

[00:04:42] Speaker 02:
So, um, I mean, again, that sounds like double-counting the employment relationship.

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It's employment plus employment.

[00:04:50] Speaker 00:
Well, again, I will turn back to the Kavachuk case.

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That's, again, sort of like a negative example.

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What this court found in Kavachuk is that the

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Well, I will step back even further.

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There's a number of cases that say, for example, if you work for the federal government, you can still serve on a trial in which the federal government is a party.

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There's a Supreme Court case, I'm forgetting the name, I apologize, it's in our briefing, that involves

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There's a United States Treasury Department's Narcotics Bureau was involved in a narcotics prosecution.

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There were jurors that served on the case that also worked for the Treasury Department, but they did not work with the Narcotics Bureau, right?

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So there's an employment relationship.

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Everybody works for the Treasury Department, but

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their their work is your simple point is i mean you could some massive company you can have two kinds of employees but they're very different jobs and here you're saying it's a summer job so i could say thank you thank you so that okay so it's you know it's a little bit but it you know i could see where

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You say not only did they work for the same company, but they had, he did exactly this job pretty much.

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Exactly.

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Thank you.

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But I'm still not sure that's enough.

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So what else do you have?

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Well, I think I would just like to emphasize though, when we were talking about doing the same job, it's not that they just were doing similar jobs.

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They were doing very much the same job, right?

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Both the defendants in this case and this juror are line corrections officers working in the prison directly with prisoners, right?

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With a responsibility to protect those prisoners from

[00:06:14] Speaker 03:
I don't want to jump you off of your factors, but it seems to me like a key issue is you have two people have the same job and it's a fear that you could somehow kind of get punished or something like that.

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That seems to be like at least something behind.

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And when you no longer work there,

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And it seems like that's a little distance.

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That's what I'm struggling with a little.

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Right.

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Well, that leads me, I guess, to the third factor.

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I should probably hurry up and get there.

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The third factor, which we derive from Alsup again, is the fear of vulnerability to the same conduct that it's on trial.

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Right?

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Alsup involved jurors who are branch bank employees inherent in being a branch bank employee is your bank might get robbed.

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And so there's an inherent fear inherent to that employment that you're going to get robbed.

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There's no reason to limit ALSA to its facts, right?

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I think that principle should apply to any danger of any kind that's inherent to that job.

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Being a corrections officer, it is very, very common for corrections officers to be the subject of litigation, much like this case.

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We cited authority to that point.

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That does start to feel kind of like double counting because under your conception, I think you have a very different concept because I understand their conception is you have to have where there's something special about the job, you know, like a physical injury of getting shot in your bank, getting robbed or something like that.

[00:07:33] Speaker 03:
That's different.

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You know, you could in theory be liable the same way this other person that works could be liable.

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Then it does start to feel a little bit like that's double counting, because why would that always be true for almost any type of similar employee?

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Is that, at least from my perspective, that's what I'm struggling with.

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I think the idea is that this is a kind of employment where that is a very heightened risk, right?

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Where you get sued a lot?

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Where you get sued a lot, exactly.

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If we were talking about two people that worked at a stock

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At a store in the mall.

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If you're a teller at Macy's.

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Exactly.

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Macy's.

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But if you're, you know, obviously we see a fair number of these type of suits.

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And so you just kind of built into your job description that you're going to get the suit.

[00:08:20] Speaker 03:
So what about like a nurse?

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You know, because you think, we think of doctors and nurses getting malpractice or something like that.

[00:08:26] Speaker 03:
So if you're, if a nurse under your view

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And you couldn't serve on a jury involving a nurse malpractice suit or a doctor malpractice suit?

[00:08:35] Speaker 00:
No, but I don't think that is the case carte blanche because we also have to have the factor of the employment connection.

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If you were a nurse that worked for the same hospital that's being sued under malpractice.

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Why would that matter?

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Because you know, you think we kind of, we kind of think that

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It's just sort of a, kind of like we would with correction officers, they just get sued a fair amount, it seems like, and so do doctors and nurses, so why would it matter if you necessarily, you could, in other words, you might work for a different hospital, everything, and I could get sued, I could get sued just like this one's getting sued at the hospital across town.

[00:09:07] Speaker 00:
So the gravity of this entire analysis is the danger of untoward emotional involvement in the case, right?

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So the easier it is for the juror to perhaps unconsciously place himself in the position of a victim or a party to the case, the greater this risk becomes.

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So if it's I'm a nurse, this person's a nurse, that's one thing.

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If it's I'm a nurse at hospital X and this person is a nurse at hospital X, the connection becomes that much stronger.

[00:09:32] Speaker 03:
OK.

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But in our instance, they're no longer a nurse, but they used to be.

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And so what is your, and you think that maybe you're like, man, I'm glad I got out of there and I didn't get sued, you know, but is your- Well, but maybe they're a private nurse.

[00:09:46] Speaker 04:
Maybe they're a nurse that not necessarily at the hospital, but they're providing care for personal services.

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I mean, I'm trying to have an example that's similar to what happened here.

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Would that be the same emotional connection that you see would happen?

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I think so.

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In your example, in this one, both the private nurse and the nurse at the hospital could get sued just as this juror could have been sued at ADCURR.

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He could also be sued by an immigration detainee at his new position.

[00:10:13] Speaker 02:
But I think what this analysis is showing, I mean,

[00:10:17] Speaker 02:
we have a narrow category of implied bias that is just implied as a matter of law and we don't do an inquiry into actual bias but in most cases we do an inquiry into actual bias where in the voir dire you're going to sort out all these connections and

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District judge is gonna make a judgment as to whether in light of what's been revealed, this relationship is one that has established bias on the part of this juror.

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This juror can't be fair.

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So why have you moved from the let's assess the specific facts into conclusively just on a handful of facts, no other facts relevant automatically as a matter of law?

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Why is that the case here?

[00:11:01] Speaker 00:
well again I think it's because of the multiple factors that create a personal connection between this juror and the facts on trial.

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This is a case where again someone who worked for ten years for the same employer is now doing essentially the same job.

[00:11:15] Speaker 02:
But could you have asked if the fear is

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you know, liability for similar conduct.

[00:11:20] Speaker 02:
Well, he'd completed the time there.

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You could ask to him, voir dire, how many complaints were made against you?

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Did you ever have a similar, this could all be explored as part of the voir dire.

[00:11:30] Speaker 02:
Why does it have to be conclusively presumed that just because he worked there, he has fear of future lawsuits?

[00:11:37] Speaker 00:
Well, in this case, I believe there was some limitations on the scope of voir dire that perhaps prevented that fuller explanation, exploration.

[00:11:44] Speaker 02:
I know, but that may be a different ground for objection, but it's not going to flip you all of a sudden into a bias as a matter of law just because the judge didn't do a good voir dire.

[00:11:55] Speaker 00:
Well, I think, again, the question is whether the average, it's a subject, it's an objective requirement, the average person.

[00:12:00] Speaker 00:
So the average person has this employment relationship, has these other factors that it's enough to establish bias.

[00:12:06] Speaker 00:
I think what you're hearing from us and... Your Honor, respectfully, I believe I'm out of time.

[00:12:09] Speaker 00:
May I reserve?

[00:12:10] Speaker 02:
No, I'm going to give you more time.

[00:12:11] Speaker 02:
We've asked a lot of questions, so...

[00:12:12] Speaker 02:
I'm going to give you your three minutes on rebuttal.

[00:12:15] Speaker 03:
I appreciate that.

[00:12:16] Speaker 03:
So you're hearing a skepticism about the fact that you would necessarily presume, basically based on employment plus these little things you're adding on top of it, that the person would be biased.

[00:12:27] Speaker 03:
And I think part of that is a lot of people that are, especially former employees, they don't even necessarily like their prior employer.

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And they may have had a bad experience.

[00:12:39] Speaker 03:
So why doesn't, I mean, so again,

[00:12:42] Speaker 03:
in an individual case you might find somebody but but uh... just generally speaking why would we assume that just because they used to work there uh... i guess i've got to ask the same question but these are all things that make it

[00:12:53] Speaker 03:
are struggling with the skepticism for a general rule here.

[00:12:57] Speaker 00:
So I think the reason the employment relationship factors, again, it's not necessarily only because of loyalty to the former employer.

[00:13:05] Speaker 00:
I think it is, again, this idea of, oh, that could be me.

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There, by the grace of God, go I. I could have been in that position, which is also a reason that it persists.

[00:13:14] Speaker 03:
But to add to that, it very well could be,

[00:13:18] Speaker 03:
Yeah, that place stunk to work at.

[00:13:20] Speaker 03:
And therefore, grace of God, I didn't get sued.

[00:13:23] Speaker 03:
But you know what?

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They needed it.

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They need, you know, I'm saying it could work both ways.

[00:13:26] Speaker 03:
I'm just not quite sure why it necessarily has to be that this person, if I was an employer, I'd be a little worried.

[00:13:33] Speaker 03:
Some employees would be worried.

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I don't know if I want this person on the jury either.

[00:13:36] Speaker 03:
Maybe they, so again, that seems like an individualized analysis.

[00:13:39] Speaker 00:
I think, well, again, the standard, of course, is objective analysis.

[00:13:45] Speaker 00:
But I think you are correct.

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If this had come out the other way, the other side could have made a similar objection.

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I think the issue is that the issue is the one that was made

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by trial counsel is that this individual juror, because of his numerous experiences and connections to the facts of the specific case, which is too close to the issue at trial to reliably be able to be unbiased under these circumstances, and because of that close proximity to the specifics of the case,

[00:14:18] Speaker 00:
is reasonable to presume that an average person in that position would have some kind of emotional connection to the case that could interfere with their ability to be biased.

[00:14:27] Speaker 02:
Can I ask you one more question, which is did Hernandez-Richter use all three of his peremptories at trial?

[00:14:35] Speaker 00:
He did use all of his peremptory strikes.

[00:14:39] Speaker 02:
And chose not to use one against this, or just sort of letting him go on and building in the appellate error rather than using the peremptory to cure the problem?

[00:14:49] Speaker 00:
Yes, Your Honor, if I may indulge me to address this particular issue for a minute.

[00:14:53] Speaker 00:
Appellees, I think, intimated this issue, I think, at 14 of their brief.

[00:14:57] Speaker 00:
They didn't directly raise it, but were critical of Mr. Richter for not using a peremptory in that kind of curative manner.

[00:15:05] Speaker 00:
The notion that a party has to use a peremptory strike curatively to strike a juror that should have been struck for a cause has been considered and rejected by the US Supreme Court in the United States versus Martinez Salazar.

[00:15:20] Speaker 00:
the court was approached with that exact same argument by the government in that case.

[00:15:24] Speaker 02:
Gina Salazar says that you could do it and then raise a Sixth Amendment issue.

[00:15:29] Speaker 02:
It doesn't necessarily say that.

[00:15:31] Speaker 02:
That'll win versus the waiver argument that Justice Scalia made in his separate opinion in that case.

[00:15:37] Speaker 00:
So there are two separate holdings, right?

[00:15:39] Speaker 00:
One holding is that if you use the peremptory strike against this juror, then you simply mooted the issue on appeal because there's no biased juror that actually was serving.

[00:15:49] Speaker 00:
The government advanced an alternative theory, which the majority opinion rejected, saying that you should be required to use the strike.

[00:15:58] Speaker 02:
Rule 24B required you to do it.

[00:16:00] Speaker 00:
Pardon me?

[00:16:01] Speaker 02:
That Rule 24B required you to do it.

[00:16:03] Speaker 02:
That was the government's alternative argument.

[00:16:04] Speaker 00:
Right, correct.

[00:16:05] Speaker 02:
And that's rejected.

[00:16:07] Speaker 02:
But what they don't respond to, and Justice Scalia said in a separate writing, is that just principles of waiver and not inflicting injury on yourself and then claiming it as a basis for a new trial should reach the same result.

[00:16:23] Speaker 02:
And they didn't directly respond to that issue.

[00:16:25] Speaker 00:
So I think there are sound reasons.

[00:16:27] Speaker 00:
So what you're describing would essentially be a new rule, because there is no rule in this court's implied bias jurisprudence.

[00:16:34] Speaker 02:
Part of the reason why you're given peremptories is if somebody lands on the jury, you don't want to, because they should have been stricken for cause.

[00:16:43] Speaker 02:
You can get them off.

[00:16:44] Speaker 02:
It's not just shaping the jury is why we give you peremptories.

[00:16:47] Speaker 02:
We give you peremptories so that you can fix this sort of problem, rather than sort of it has an element of sandbagging to it.

[00:16:53] Speaker 00:
There are reasons that you can get a for-cause challenge.

[00:16:58] Speaker 00:
There are also reasons that you might choose to exercise a peremptory challenge that would not necessarily rise to the level of a for-cause challenge, right?

[00:17:05] Speaker 00:
These two things are not necessarily coextensive.

[00:17:08] Speaker 00:
And what the Supreme Court says in Martina Salazar is that federal law is not in the business of policing that strategic choice, apart from

[00:17:17] Speaker 00:
It's not in the business of policing that strategic choice and how the parties choose to exercise their peremptory challenges.

[00:17:27] Speaker 00:
That's again, it's a strategic choice that trial counsel is asked to make on the fly.

[00:17:33] Speaker 00:
And the takeaway for me from Martinez Salazar is the court says, we will allow

[00:17:37] Speaker 00:
the latitude for trial counsel to make that kind of difficult in the moment choice without penalizing them for not using their peremptory in a curative strike.

[00:17:49] Speaker 00:
I think it's also important to emphasize that the trial court has an independent constitutional duty to strike a biased juror from the panel.

[00:17:57] Speaker 00:
And I think it's sort of letting the trial court off that responsibility.

[00:18:01] Speaker 00:
It minimizes that duty.

[00:18:02] Speaker 00:
If you then place the onus on the parties to correct an error that was caused by the trial court's abuse of discretion.

[00:18:09] Speaker 02:
Okay.

[00:18:09] Speaker 02:
All right.

[00:18:10] Speaker 02:
Thank you, counsel.

[00:18:10] Speaker 02:
As I said, we took you over, so I'll give you three minutes for rebuttal.

[00:18:14] Speaker 02:
But we'll hear now from Ms.

[00:18:17] Speaker 02:
Zwolner.

[00:18:18] Speaker 02:
Did I pronounce that correctly?

[00:18:25] Speaker ?:
Very close.

[00:18:25] Speaker 01:
Okay.

[00:18:25] Speaker 01:
May I please the court?

[00:18:27] Speaker 01:
My name is Tara Zollner for Appellee's Christopher Romero and Julie Bowers.

[00:18:37] Speaker 01:
There is no question here that the juror, in question juror number one, was not actively biased.

[00:18:46] Speaker 01:
He gave textbook answers to all of the board of your questions about any potential bias that he might have as a result of being a tenure corrections officer.

[00:18:57] Speaker 01:
So the court will have to infer it, and the only basis for inferring it is the case law.

[00:19:05] Speaker 01:
And no other case, not even ALCEP, comes close to what plaintiff is suggesting here, a wild expansion of ALCEP.

[00:19:13] Speaker 01:
Plaintiff is equating past employment with what was current employment in ALCEP, and a manufactured fear of a civil lawsuit with ALCEP's reasonable apprehension

[00:19:25] Speaker 01:
apprehension of violence.

[00:19:28] Speaker 04:
So, you know, personal... Well, ALSLIP is not limited to just personal apprehension of violence, is it?

[00:19:33] Speaker 04:
I mean, that's what... What I take that case to talk about is sort of that personal or emotional sort of connection, right?

[00:19:43] Speaker 04:
That's what I see that that case and maybe the string of cases after sort of get to.

[00:19:49] Speaker 04:
But I guess my question to you is this.

[00:19:54] Speaker 04:
This was not just the past 10-year employment, but the current employment also as a quasi-correction officer at this facility, that there's that fear of potential liability because they are involved in similar conduct, of similar employment responsibilities, of caring for these individuals that are in their custody.

[00:20:19] Speaker 04:
That's what I take their argument to be.

[00:20:22] Speaker 04:
Why is that not sufficient?

[00:20:24] Speaker 01:
Well, I would first say that the mechanism for ensuring impartiality of the jury is, first and foremost, for deer.

[00:20:36] Speaker 01:
That's the bulwark of the system.

[00:20:40] Speaker 01:
This is leading me to your question.

[00:20:44] Speaker 01:
It allows the parties to probe the jurors for bias, and the jurors must answer truthfully.

[00:20:50] Speaker 01:
Here, the jurors were asked if, and I don't know that it is on the appellate record, but the jurors were asked if they'd ever been subject to civil liability or if any family members had, and no jurors raised their hands, including this one.

[00:21:08] Speaker 01:
plaintiffs' counsel could have followed up on that with the juror number one.

[00:21:12] Speaker 01:
Have you ever been subject to civil liability?

[00:21:15] Speaker 01:
And I think it's a broad assumption to say that the fear of potential civil liability rises to the level of ALSEP, where arguably for these corrections officers, that's a part of the job.

[00:21:34] Speaker 01:
Inmates are filing grievances against you all the time.

[00:21:38] Speaker 01:
Um, but also you're going to be indemnified.

[00:21:41] Speaker 01:
They know that as well.

[00:21:43] Speaker 01:
Um, I would also say though that this assumption, part of the problem with plaintiff's argument is that, um, it assumes based on very limited questioning that the responsibilities of this corrections officer and the

[00:22:03] Speaker 01:
plaintiffs in this case were the same.

[00:22:05] Speaker 01:
When they were not, this corrections officer worked at two different facilities.

[00:22:11] Speaker 01:
This case arose out of the Iman facility, which is a male facility.

[00:22:15] Speaker 01:
This corrections officer worked for six years at Perryville, which is a female facility.

[00:22:20] Speaker 01:
This is not in the record because plaintiff never raised this implicit bias argument.

[00:22:27] Speaker 01:
So the parties were never able to kind of delve into this.

[00:22:31] Speaker 01:
It takes away from the court

[00:22:33] Speaker 01:
the opportunity to cure what plaintiff has now sandbagged the court and defendants with.

[00:22:44] Speaker 01:
And then he spent four years at the Phoenix facility, which is an intake facility.

[00:22:49] Speaker 01:
So it's not the same.

[00:22:50] Speaker 01:
And this all could have been hashed out on Vardier if plaintiff had raised this objection at that time.

[00:22:58] Speaker 01:
Did I answer your question?

[00:23:01] Speaker 04:
Sort of.

[00:23:03] Speaker 04:
But I guess your argument is that they're comparing apples to oranges, essentially, that they were doing different things.

[00:23:12] Speaker 01:
Yeah.

[00:23:12] Speaker 01:
And then also, it was a bank robbery case.

[00:23:15] Speaker 01:
It was a criminal case.

[00:23:17] Speaker 01:
And so the defendant in the case was accused of robbing bank tellers.

[00:23:24] Speaker 01:
Here, the jurors were going to be in the shoes of that victim.

[00:23:27] Speaker 01:
In this case, I would accept plaintiff's argument maybe if this was an officer on, an inmate on officer assault situation, perhaps.

[00:23:39] Speaker 01:
Perhaps.

[00:23:40] Speaker 01:
Because then you'd have the victim, the officer, would be the same, the corrections officer could put himself in the shoes of

[00:23:53] Speaker 01:
the victim in that scenario.

[00:23:57] Speaker 01:
Here, though, it's kind of flipped.

[00:24:01] Speaker 01:
The allegation is that the corrections officers failed to protect the plaintiff.

[00:24:08] Speaker 01:
So it's not putting yourselves in the shoes of the alleged victim there.

[00:24:12] Speaker 04:
Well, but the argument would be that you failed to protect the inmates that you protect, or you're supposed to protect at the INS facility.

[00:24:20] Speaker 04:
I mean, that's the argument.

[00:24:22] Speaker 01:
Yeah.

[00:24:22] Speaker 01:
And he said, I mean, all we can go on is what this juror said.

[00:24:27] Speaker 01:
And there's no evidence that any, that he was not credible.

[00:24:30] Speaker 01:
He said sometimes, and I think working and he had risen to the level of sergeant rising to that level.

[00:24:37] Speaker 01:
You do kind of deal with.

[00:24:40] Speaker 01:
administrative responsibilities.

[00:24:42] Speaker 01:
You deal with complaints against officers.

[00:24:44] Speaker 01:
You investigate your officers.

[00:24:46] Speaker 01:
So you're seeing both sides.

[00:24:47] Speaker 01:
And he said, sometimes the officers are right, sometimes the inmates are right.

[00:24:52] Speaker 01:
I can't say it one way or the other.

[00:24:55] Speaker 01:
He didn't have a feeling one way or the other.

[00:24:58] Speaker 01:
He would listen to the evidence.

[00:25:08] Speaker 01:
I just wanted to

[00:25:10] Speaker 01:
address our waiver argument as well really quickly because the plaintiff has indicated that because in dire in a footnote this was deemed a structure implicit bias was deemed a structural error that it can't be waived and I don't think that that's entirely correct in Caterpillar the Federal Circuit addressed waiver

[00:25:40] Speaker 01:
um, before going into its implicit bias analysis.

[00:25:45] Speaker 01:
Similarly in Rodriguez, um, probably the ninth circuit case dealing in the civil arena that is most, um, on point here in terms of the, the application of the, the employment plus one factor.

[00:26:03] Speaker 01:
Um, Rodriguez had moved to excuse the juror on the basis of implied bias.

[00:26:09] Speaker 01:
That did not happen here.

[00:26:11] Speaker 01:
Plaintiff did object to the juror on the basis of being an unsworn expert in the jury room, but did not ever say, you know, we fear that he has a fear of, might have a fear of being in a civil lawsuit and therefore is implicitly biased.

[00:26:32] Speaker 01:
This is not in the record, in the appellate record.

[00:26:35] Speaker 01:
But Plaintiff's Council did address implicit bias in the context of ethnicity and race early on, and was allowed to ask questions about that.

[00:26:44] Speaker 01:
Having failed to do so here, to further develop the record, I think is a waiver or forfeiture of the argument.

[00:26:56] Speaker 02:
But this is just a question of law and of...

[00:26:59] Speaker 02:
settled record where the facts are basically not disputed.

[00:27:03] Speaker 02:
So we can easily reach the question.

[00:27:09] Speaker 02:
It's not like it needed further development where waiver really makes a difference then.

[00:27:15] Speaker 01:
Well, I guess if the court was going to find that

[00:27:24] Speaker 04:
In your favor.

[00:27:27] Speaker 02:
The whole point in the distinction I drew with the opposing counsel is we normally look at this as a fact question where you do the bond here and you get all, you make your inquiries, trial judge makes a judgment.

[00:27:43] Speaker 02:
We would review that for clear error.

[00:27:47] Speaker 02:
But then there's a category of cases where

[00:27:50] Speaker 02:
given the facts in the record, as a matter of law, it's imputed.

[00:27:53] Speaker 02:
And he stuck with the record he has.

[00:27:57] Speaker 02:
These are the facts, and the only question is do they legally add up to imputed bias as a matter of law under Alsop and its progeny?

[00:28:09] Speaker 02:
I understand your technical waiver argument, but it's,

[00:28:14] Speaker 02:
It's not a situation where, normally we care about waiver because a record wouldn't be developed and somebody, here it's just, is the record amount to this as a matter of law?

[00:28:27] Speaker 01:
And our position is that no, it does not.

[00:28:29] Speaker 01:
There was no personal connection to the parties or the circumstances.

[00:28:33] Speaker 01:
The juror was not a victim of a crime or experienced a similar situation as the defendant or the plaintiff in this case.

[00:28:45] Speaker 01:
Um, and this court has been hesitant to find bias based on a juror's relative's experiences and never when the juror has been honest on board here.

[00:28:53] Speaker 01:
And again, this juror, there's no indication this juror was not honest.

[00:28:57] Speaker 01:
Um, this juror was not apprised of prejudicial information about the defendant that makes it highly unlikely he could exercise independent judgment.

[00:29:07] Speaker 01:
Um, and she's not an employee of the prosecuting agency.

[00:29:12] Speaker 01:
This is the, the,

[00:29:14] Speaker 01:
Department of Corrections was not the party in this case.

[00:29:19] Speaker 01:
It was two officers.

[00:29:22] Speaker 01:
So on that basis, unless anybody has any further questions, we ask you to affirm the verdict.

[00:29:30] Speaker 02:
All right.

[00:29:30] Speaker 02:
Thank you, counsel.

[00:29:31] Speaker 02:
Thank you.

[00:29:32] Speaker 02:
So we'll hear rebuttal now.

[00:29:41] Speaker 00:
Thank you, Your Honor.

[00:29:42] Speaker 00:
Just a few points.

[00:29:45] Speaker 00:
The first is, counsel referred to what she described as a manufactured fear of liability on behalf of this juror in his role as a corrections officer and an attention officer.

[00:29:57] Speaker 00:
But in fact, there is nothing manufactured about that.

[00:30:00] Speaker 00:
We cite this at

[00:30:02] Speaker 00:
in our brief.

[00:30:05] Speaker 00:
Richardson v. McKnight, the Supreme Court, recognized that fear of litigation is a distraction for corrections officers.

[00:30:11] Speaker 00:
We saw a Law Review article that surveys law enforcement and corrections officers who said that fear of litigation of being sued in their professional conduct is a distraction on the job.

[00:30:21] Speaker 00:
That, I think, makes this a unique job, much like a bank teller, where

[00:30:24] Speaker 00:
Fear of being robbed is inherent to being a bank teller.

[00:30:26] Speaker 00:
Fear of being sued is inherent to this specific job, detention slash corrections officer, the way that similar fears of litigation are not inherent to most other jobs.

[00:30:38] Speaker 00:
She tried council tried to distinguish This case from all sip on its facts in a couple different ways.

[00:30:45] Speaker 00:
I don't think they were persuasive one was by pointing out that the Juror here did not work at the facility where mr. Victor was assaulted.

[00:30:53] Speaker 00:
He worked at two other ADCR prisons, which is correct but nothing

[00:31:00] Speaker 00:
immunizes the staff working at those facilities from protecting their charges there from being assaulted.

[00:31:07] Speaker 00:
The same duty applies to staff there.

[00:31:09] Speaker 00:
And just on all six facts, the court emphasized.

[00:31:11] Speaker 03:
That does kind of go to the, you know, you heard the waiver discussion at the end of your opposing counsel's, you know, and this is, I mean, you're both presenting stuff to us I don't think is even in record that they worked at different places, right?

[00:31:25] Speaker 00:
That fact is in the record, I believe.

[00:31:27] Speaker 03:
Okay.

[00:31:27] Speaker 03:
And so in some sense,

[00:31:30] Speaker 03:
it had been pressed more in the court we would have more more details about similarities or differences between the job of the person who was being sued and the job of this juror and so how come waivers shouldn't kind of apply to that because it's not having put that in not having made the implicit bias argument

[00:31:54] Speaker 03:
directly and then putting the stuff in that that sort of hobbles us a little bit from being able to make that judgment at the level you know the granular level well just one quick thought also i would just like to point out that although

[00:32:05] Speaker 00:
This juror worked at a different facility.

[00:32:07] Speaker 00:
The jurors in ALSIP did not work at the bank that was robbed.

[00:32:11] Speaker 00:
They worked at a different bank under the same employer, different branch, under the same employer.

[00:32:16] Speaker 00:
In terms of the waiver argument, I disagree with counsel that Mr. Richter did not make the waiver argument to the district.

[00:32:22] Speaker 00:
Excuse me, the implied bias argument to the district court.

[00:32:24] Speaker 00:
You can see that in our reply brief, I believe, at 23.

[00:32:28] Speaker 00:
The factors Mr. Richter identified as the grounds for dismissing this juror were core.

[00:32:35] Speaker 00:
implied, presumed, biased arguments.

[00:32:38] Speaker 00:
He noted that the juror stated he could be fair and impartial, but then noted that human nature, his background, his closeness to the profession, that employment background, all of those things would naturally tend to

[00:32:51] Speaker 00:
produce bias, notwithstanding the juror's representations that he could be fair, right?

[00:32:57] Speaker 00:
That is the core of implied bias, that even when a juror represents that they can be fair, you have to look beyond that to the overall circumstances of the case.

[00:33:07] Speaker 00:
And that is what is the issue here.

[00:33:10] Speaker 00:
All right.

[00:33:10] Speaker 00:
Any further questions?

[00:33:12] Speaker 02:
All right.

[00:33:13] Speaker 02:
Thank you, counsel.

[00:33:14] Speaker 02:
The case just argued will be submitted, and we are recessed for today.