DOJ-OGR-00021772.pdf

Case 22-1426, Document 87, 07/27/2023, 3548202, Page30 of 35 This Court has also recognized a third form of partiality, known as inferable bias, applicable in "a few circumstances that involve no showing of actual bias, and that fall outside of the implied bias category, where a Court may, nevertheless, properly decide to excuse a juror." Torres, 128 F.3d at 46-47, Daugerdas, 867 F. Supp. 2d at 475. Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make a presumption of bias mandatory. Torres at 43, 47. In Torres, the Second Circuit declined to "consider the precise scope of a trial judge's discretion to infer bias." Id. The circumstances herein present a scenario in which bias is inferred from the non-disclosure of critical potentially disqualifying information at the time of voir dire because the risk of partiality is sufficiently significant to excuse a juror for cause based on non-disclosure. "Because [in such cases] the bias of a juror will rarely be admitted by the juror himself, partly because the juror may have an interest in concealing his own bias or partly because the juror may be unaware of it, [partiality] necessarily must be inferred from surrounding facts and circumstances." McDonough, 464 U.S. at 558 (Brennan, J., concurring). Juror 50 claims not to have connected his history with the charges in the case despite the description in the questionnaire. The implausibility of the explanation 24 DOJ-OGR-00021772