High court hears argument that juror's voir dire created structural error in Kanza appeal
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Summary
Defense counsel argued the judge's handling of juror 24 — including a question about whether 'Hispanics may commit crime more frequently' — distorted voir dire and amounted to structural error; the Commonwealth said the juror ultimately said he could be fair and did not deliberate, making any error harmless.
William Smith, counsel for the defendant in Commonwealth v. Franklin Kanza, told the court that an exchange with prospective juror number 24 during voir dire required strict adherence to the Williams protocol and amounted to structural error. "First of all, this is structural error," Smith said, arguing the juror's shifting answers and the judge's repeated questioning undermined the integrity of jury selection.
Smith described the voir dire exchange in which the judge asked whether the juror believed Hispanics might commit crimes more frequently; the juror first replied "maybe in certain areas, but I don't know," then later said "no," which Smith said showed the juror may have been trying to tell the judge what he thought the judge wanted to hear. Smith added that the Commonwealth had joined the defense below in opposing seating the juror, and that the irregularity affected peremptory‑challenge strategy.
The Commonwealth, represented by Travis Lynch, told the court the record shows the juror ultimately stated on the record that he could be "fair and impartial," and emphasized that juror 24 did not participate in deliberations. "Juror 24 did not participate in deliberations," Lynch said, arguing that an alternate's nonparticipation means there was no prejudice to the defendant and that any error was therefore harmless.
A central dispute before the court is whether the seating decision should be treated as a structural error — which would not require a showing of prejudice — or whether any error should be assessed for prejudice given that the juror did not deliberate. Justices pressed Smith on whether the defendant had a separate, for‑cause basis to exclude the juror (the juror also said he would have "difficulty not having sympathy for the victim"), and asked Lynch why the Commonwealth, which had joined in opposing seating below, now defends the judge's decision on appeal.
If the court treats the issue as structural error, reversal could follow without a factual showing of harm; if not, the court will evaluate whether the juror's presence affected the verdict, a question the Commonwealth contends is resolved by the fact that the juror did not deliberate. The court did not issue a decision at argument; counsel were directed to further briefing and the case remains under submission.