Juror Bias Under Tennessee Law, and What to Expect in the Vanderbilt Rape Case

By Daniel A. Horwitz

[Disclosure:  In a directly related lawsuit, the author filed an amici curiae brief in the Tennessee Supreme Court on behalf of several domestic and sexual violence prevention advocates seeking to protect the private records of the victim in this case.  The author’s brief – which applied only to the civil public records request filed in connection with this case by The Tennessean on behalf of a larger media coalition – is accessible here.]

In Sunday’s Tennessean, Stacey Barchenger provides answers to several questions involving post-trial criminal procedure in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.”[1]  Many of the questions that Ms. Barchenger answers in her column concern the alleged biases of one of the jurors who decided the case.  As reported by ABC News, Mr. Todd Easter – who served as the jury’s foreman – was “a victim of statutory rape 15 years ago, . . . but [he] never revealed that information during the jury selection process.”[2]  According to The Tennessean’s reporting, one of the specific questions that Mr. Easter was asked during jury selection was whether he “knew any victims of sexual assault.”[3]

Co-defendants Batey and Vandenburg have both argued that they are entitled to a new trial because Mr. Easter was biased against them but failed to disclose his biases during voir dire (jury selection).  In her article, Ms. Barchenger correctly explains that “[i]f the judge [agrees that] the juror should have disclosed the [fact that he had been raped],” then the judge will “grant a mistrial and set a new trial date.”  On Monday, the parties held an extensive evidentiary hearing concerning Mr. Easter’s potential biases, which will assist the trial court in ruling on the defendants’ motions.

This article attempts to provide a detailed summary of the legal questions that Criminal Court Judge Monte Watkins will have to answer in determining what exactly Mr. Easter “should have disclosed” during jury selection, and whether Mr. Easter was legally biased against the two co-defendants.  Additionally, assuming that Judge Watkins finds that Mr. Easter was indeed biased, this article explains why Mr. Batey and Mr. Vandenburg are entitled to receive a new trial—even though the evidence against them can fairly be characterized as overwhelming. 

1.  Juror bias under Tennessee law.

Under Tennessee law, challenges to jurors generally fall within two distinct categories: assertions that a juror was “defective,” and assertions that a juror was “prejudiced.”[4]  The first category of challenges – a challenge “on account of defect” – is “based on defects in [a juror’s] qualifications.”[5]  Such a challenge would apply to jurors who were unqualified to sit on a jury because, for example, they were from a different state, were too young to perform jury duty, or failed to satisfy some other statutory prerequisite to serving as a juror.[6]

The second category of juror challenges – a challenge “on account of prejudice” – arises “from some bias or partiality either actually shown to exist or presumed to exist from circumstances.”[7]  This type of challenge would be appropriate under circumstances when a juror either “conceals or misrepresents information tending to indicate a lack of impartiality.”[8]

This case falls into the second category of juror challenges, since it involves an allegation that one of the jurors was biased or partial to the case’s outcome.  Under Tennessee law, “when a juror’s response to relevant, direct voir dire questioning, whether put to that juror in particular or to the venire in general, does not fully and fairly inform counsel of the matters which reflect on a potential juror’s possible bias, a presumption of bias arises.”[9]  Furthermore, under Tennessee law, both: (1) “failure to disclose information in the face of a material question reasonably calculated to produce the answer,” and (2) “false disclosures” in response to questions asked during jury selection “give rise to a presumption of bias and partiality[.]”[10]

Each case of alleged jury bias turns on its own facts, and this case will be no different.  In past cases, however, Tennessee courts have held that jurors were biased under circumstances when they had “relationships or associations” with one of the parties in the case, or when they previously had “specific experiences directly relevant to the matter before them.”[11]  For example, in Toombs v. State, the Tennessee Supreme Court held that a juror’s “failure to reveal that he was the first cousin of the prosecutor’s wife when asked if he knew ‘any reason’ he could not be fair ‘almost forces the conclusion that he was animated by an ulterior motive in remaining silent, and that this ulterior motive stemmed from a partiality in favor of the prosecution and, by the same token, a bias against these defendants.’”[12]  Moreover, as noted above, under Tennessee law, a juror who either fails to respond to a pertinent question or gives a false response to a question posed during jury selection is presumed to be biased as well.[13]

Durham v. State provides what is probably the closest similarity to the case at bar.  There, the Supreme Court of Tennessee held that a juror in a rape case was biased where he failed to disclose the fact that he was the victim in a pending prosecution “for assault with intent to rape.”[14] According to the Durham court, the fact that the juror’s own case was “of the like heinous nature of which the defendant . . . stood charged” gave rise to a presumption of bias.[15]   In granting the defendant in Durham a new trial, the Durham court also expressed concern that the juror in that case had “entertained and still harbor[ed] a grievance against [his attempted rapist], intensified, perhaps, by frustration of his desire for vengeance.”[16]

In this case, Mr. Easter’s alleged bias stems from his failure to disclose the fact that he was once the victim of a statutory rape that resulted in his rapist being “sentenced to 12 months in jail and 60 months of probation.”[17]  It should be noted that statutory rape – which Mr. Easter suffered – and aggravated rape – the crime for which the defendants were convicted – are distinct criminal offenses that have several material differences.  Even so, however, the similarities between the two offenses are undeniable.  Consequently, provided that one of the questions posed during jury selection was reasonably calculated to elicit such a disclosure, it would not be surprising if Judge Watkins ruled that Mr. Easter’s failure to disclose his experience as a statutory rape victim constitutes “a specific experience[ that was] directly relevant” to the defendants’ case that should have been disclosed during jury selection.  Additionally, if it turns out that Mr. Easter gave a false response to one of the questions that was asked during jury selection, then his bias will be presumed based on the rule that “false disclosures give rise to a presumption of bias and partiality.”[18]

Another consideration that may affect Judge Watkins’ determination of whether Mr. Easter was biased may include the fact that he served as the jury’s foreman and then went on TV after convicting the defendants to proclaim that “I wanted to be the one to read the verdict and I wanted to read it to them to their face.”[19]  Concerns like that notwithstanding, however, it should also be noted that Mr. Easter has emphatically denied harboring any bias, and that under Tennessee law, even if he is legally presumed to have been biased, “a presumption of bias may in some cases be dispelled by an absence of actual partiality.”[20]  As a result, Mr. Easter’s testimony that he considered his statutory rape to be “inconsequential” – and his additional testimony that the matter “didn’t cross [his] mind” during jury selection – will be taken into account by Judge Watkins as well.[21]

2.  The defendants’ right to a new trial in the event of juror bias.

Both the United States Constitution and the Tennessee Constitution guarantee criminal defendants a right to trial by an impartial jury.[22]  The Sixth Amendment to the U.S. Constitution explicitly provides that criminal defendants shall have a right to be tried “by an impartial jury of the State and district wherein the crime shall have been committed.”  The U.S. Supreme Court has further explained that the Due Process clause of the Fourteenth Amendment “guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.”[23]  Similarly, Article I, Section 9 of the Tennessee Constitution guarantees criminal defendants a right to trial “by an impartial jury of the County in which the crime shall have been committed,” which right the Tennessee Supreme Court has deemed “fundamental.”[24]

Following a defendant’s conviction, errors that took place during a defendant’s trial fall into one of three categories: “[1] structural constitutional error[s], [2] non-structural constitutional error[s], and [3] non-constitutional error[s].”[25]  The second and third categories do not automatically require a new trial in every case (and they usually do not result in one); instead they are subject to what is referred to as “harmless error analysis.”  Harmless error analysis requires a reviewing court to determine whether, and to what extent, the error affected the outcome of the defendant’s trial.[26]  Although the applicable standard of review is slightly more nuanced than this, the former Chief Justice of the Texas Supreme Court once characterized harmless error analysis as:  “[t]he judge sure goofed up the trial, but we think that the defendant is guilty anyway, so what the hell.”[27]  Thus, in most cases, “[t]he greater the amount of evidence of guilt, the heavier the burden on the defendant to demonstrate that a non-constitutional error involving a substantial right more probably than not affected the outcome of the trial.”[28]

In contrast to trial errors that are subject to harmless error analysis, however, “[s]tructural constitutional errors are errors that compromise the integrity of the judicial process itself,” and “they require automatic reversal when they occur.”[29]  Very few trial rights fall into this category, but the right to an impartial jury is among them.  As the Tennessee Supreme Court has explained:  “Because the right to an impartial jury is a fundamental aspect of a fair trial, the infraction of this right can never be treated as harmless error.”[30]  Stated differently:  “The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice.”[31]

It is for this reason that even though the evidence against Cory Batey and Brandon Vandenburg appears overwhelming, they are entitled to a new trial if Judge Watkins determines that jury foreperson Todd Easter was biased against them.  Like the right to a trial itself and the right to be represented by an attorney, the right to an impartial jury is an indispensable component of the judicial system’s threshold function “as a vehicle for determination of guilt or innocence.”[32]  Put simply, unbiased juries are essential to maintaining both the integrity and the functioning of the judicial system as an institution.  Thus, notwithstanding the unquestioned cost of re-trying defendants under circumstances when their guilt is overwhelming, the right to an impartial jury must be scrupulously protected if jury verdicts are ever to be respected at all.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Stacey Barchenger, 7 questions about Vanderbilt rape case mistrial requests, The Tennessean (June 14, 2015, 9:02 AM), available at http://www.tennessean.com/story/news/local/davidson/2015/06/14/vanderbilt-rape-trial-mistrial-motion-preview-nashville/71014646/.

[2] Lauren Effron and Joseph Diaz, Defense Wants Vanderbilt Rape Trial Verdict Thrown Out Over Juror, ABC News 20/20 (Jan. 30, 2015, 1:32 PM), http://abcnews.go.com/US/defense-vanderbilt-rape-trial-verdict-thrown-juror/story?id=28608492.  At the time of its reporting, ABC News elected not to identify Mr. Easter as the specific juror involved, but he has been publicly identified as the juror in question by multiple news outlets both before and since, and he has made several public statements to that effect both before and since as well.

[3] Stacey Barchenger, Vandy rape trial juror pressed about being rape victim, The Tennessean (June 15, 2015, 8:30 PM), available at http://www.tennessean.com/story/news/crime/2015/06/15/mistrial-motion-vanderbilt-rape-vandenburg-batey/71255698/.

[4] State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993).

[5] Id. 

[6] See Durham v. State, 182 Tenn. 577, 588, 188 S.W.2d 555, 559 (1945).

[7] Id. (quoting 1 Bouvier’s Law Dictionary 451 (Rawle’s 3d rev. 8th ed. (1914)).

[8] Akins, 867 S.W.2d at 355.  Of note, unlike a challenge based on a juror’s qualifications, a challenge based on a juror’s bias may be asserted even after a defendant has been convicted.  See id. (“Propter defectum challenges must be made prior to verdict, but propter affectum challenges may be made after verdict.”) (citations omitted).

[9] Akins, 867 S.W.2d at 357.  See also Durham, 188 S.W.2d at 559 (holding that under Tennessee law, “a presumption [of bias] arises from [] willful concealment of ulterior and prejudicial motives.”).

[10] Akins, 867 S.W.3d at 356.

[11] Id. at 357.

[12] Id. at 356, n. 14 (quoting Toombs v. State, 270 S.W.2d 649, 651 (1954)). 

[13] Id. at 356 (holding that “false disclosures give rise to a presumption of bias and partiality”) (citations omitted).

[14] Durham, 188 S.W.2d at 557.

[15] Id. 

[16] Id. at 559.

[17] See Effron, supra n. 2.

[18] Akins, 867 S.W.3d at 356.

[19] Chris Conte, Jury Foreman In Vanderbilt Rape Trial Speaks, News Channel 5 (Jan. 28, 2015), http://www.scrippsmedia.com/newschannel5/news/Jury-Foreman-in-Vanderbilt-Rape-Trial-Speaks-290139281.html.

[20] Akins, 867 S.W.2d at 357.

[21] See Barchenger, supra n. 3.

[22] State v. Hugueley, 185 S.W.3d 356, 377 (Tenn. 2006).

[23] Irvin v. Dowd, 366 U.S. 717, 722 (1961).

[24] Hugueley, 185 S.W.3d at 377.

[25] State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).

[26] In the case of non-structural constitutional errors, the government is required to prove that the error was harmless beyond a reasonable doubt.  See id. (“The test used to determine whether a non-structural constitutional error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”) (internal quotations omitted).  In contrast, in the case of non-constitutional errors, the defendant is required to prove that the error more probably than not affected his or her trial.  See id.at 372 (“Where an error is not of a constitutional variety, Tennessee law places the burden on the defendant who is seeking to invalidate his or her conviction to demonstrate that the error ‘more probably than not affected the judgment or would result in prejudice to the judicial process.’”) (quoting Tenn. R.App. P. 36(b)).

[27] Id. at 366, n. 5 (citing Albert W. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex. L.Rev. 629, 658–59 (1972)).

[28] Id. at 372.

[29] Id. 

[30] State v. Odom, 336 S.W.3d 541, 556 (Tenn. 2011) (quotations omitted).

[31] Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998).  See also Thompson v. Altheimer & Gray, 248 F.3d 621, 622 (7th Cir. 2001) (“Denial of the right to an unbiased tribunal is one of those trial errors that is not excused by being shown to have been harmless.”); Gray v. Mississippi, 481 U.S. 648, 668 (1987) (“because the impartiality of the adjudicator goes to the very integrity of the legal system, . . . harmless-error analysis cannot apply.”).

[32] Rose v. Clark, 478 U.S. 570, 578 (1986).