law enforcement personnel is a source of possible biases which has become evident through experience with juries here however the district court refused our requests to ask the prospective jurors if they had any relationship with federal law enforcement officers this was in a case where mr miller was accused of deceiving federal law enforcement officers into obtaining a visa and where all six of the government's witnesses were law enforcement officers be the judge did ask the question about one point seven officers but ha a qualification with respect to the question namely whether it would affect their decision in the case that's right your honor that qualifier and as we the relations with law enforcement officers came out from numerous people and numerous times the judge as soon as our relationship that was too close to a law enforcement officer without even asking the judge disqualified the witness like the security guard at the world trade center the yes some individuals did volunteer relationships with law enforcement officers that only however begs the question those individuals volunteered that information to be there the in fact has has never been a case where the refusal to ask a question as you phrased it was sufficient to find that the  insufficient in fact there is a case around are discovered this weekend preparing for oral arguments from the d c circuit i'll be submitting a twenty eight j letter today the facts are materially identical the court there asked prospective jurors i'm giving you a two part question first questions that would have provided you with sufficient information to exercise your peremptory challenge use as well as causal challenges your honor and you were not obviously the most well you don't object to anything in your brief about challenges for cause that the judge didn't grant a challenge for cause that you had or that the judge prevented you from making challenges for cause we couldn't make challenges your for cause your honor if we didn't know who worked for law enforcement ok but there there is nothing in your brief that says here was a challenge for cause that the judge should have granted that the judge should have disqualified that juror on cause that's correct that's correct you're noting no issues with respect to challenges for cause here it was here it's that it's not that someone was kept on they should have been for cause is that we didn't have the information to make the challenge if the individual doesn't know someone works for example for border patrol we couldn't have inquired as to whether that would affect the person's ability to be fair if you're if your argument come down to the question about law enforcement because in your brief you make much of the fact that background questions such as education members of the household were were not asked yes your honor in the last case this court recognized the need to give counsel quote a feel as to each potential juror to allow a reasonable exercise of challenges and the court said it's possible that while you're maybe so lacking in substance as to afford two little information about a potential jurors outlook experience and lifestyle now judge coons here at mid that there was a little detail given when we see said at one point in the volunteer and this is on page two hundred seventeen of the special appendix we objected that judge we didn't learn any specifics about a particular juror's background the judge responded you did not learn any specifics about a lot of the jurors this court recognized in laws that there may be an unusual case where the information is so lacking as to preclude meaningful exercise others are huge again that's two hundred seventy of the special appendix your honor we submit this is a very unusual case this is not at all the usual practice that our office has observed in any other district court the refusal to ask what do you do for a living do you have other people in your family what do they do for a living do you have views particular to jamaicans applying for visas for example if you have particular views as to law enforcement officers being more credit the judge actually did describe the case as a case of visa fraud with someone coming from jamaica so that i that raised any questions in the jurors minds that could have been pursued and it was pursued with numerous cases the key point your honor is in the jurors minds this court has recognized in the torres case which we cite in our br that human nature being what it is quote the bias of a juror will rarely be admitted by the jury himself either because he wants to conceal it or because he's unaware of it and here we have that at void here the court asked a particular juror and the sun page one hundred eighty six with a special appendix the judge asks do you have any bias is one way or another going into this case the individual responds not that i'm aware of the court says thank you you may serve but there was the question which described for the jurors that the case was about bees or fraud with someone coming from jamaica and is there anything about that that would prevent you from being a fair and impartial jury in this case why would that question not from any juror who is being truthful have provoked any buyers against these are fraud cases or people make as it did with the massed amount of jurors an unusual number of strikes in the case because a truthful jerk can honestly believe that he harbors no bias so what if is how would you ask the question whether someone is biased against someone from jamaica i understand asked that question we would ask simple questions do you have any feelings about jamaicans applying for visas do you have any feelings about the v of a law enforcement officer this court held in torres and every other circuit is held in this context that a court cannot delegate to a juror the decision whether he or she can be fair as a subjective matter of judgment there has to be object of information that w allow further questioning and your honor by the way for a person to say yes i have ties to law enforcement we're not saying that's per se cause to remove them for the jury what we're saying is what this court said in the colombo case when such information is provided then questions can be asked me ask you on that mr larson do you have any indication on this record that any of the prospective jurors they were chosen  serve with law enforcement you know because there's no basis to say one way or the other your honor for all the record does show now in the kitchen that any of them are related to law enforcement there's no basis to say either way because the judge did not ask what these individuals did for a living for all the record shows there was a border agent on the jury there certainly no proof that there wasn't such a person on the jury again the qualifier honors this delegation of tell me only if you think you can't be fair this court and every other circuit to said that's not adequate in order for a meaningful exercise a printer he's in there has to be the information to me to make the question in your in your reply brief you say that the government does not dispute that it is impossible to tell if miller was indeed judged by twelve fair and impartial jurors and where did the government make that concession it's not an express concession it's the fact that the government does not say we know that the jury was impartial to judge brown is this question right now because this evidence was not presented specifically employment there's no way to tell whether a border agent was on the jury or not there's no way to tell one way or the other it's impossible to determine so the government rightly cannot assert we know for a fact that mr miller received a fair trial my point is that this court cannot be confident that he did it that itself is a reason to give this case a hard look it's also a reason to give this case a hard look because of the highly unusual fact your in your writing that may have been your honor but the it's the substance of the question the substance of the questions that matter when they were brought to sidebar the judge said if you didn't raise a paddle is there anything that would hurt you from being fair and if the person said no they were allowed to serve and even the government pointed out they asked a question within a judge like if they just say no they'll be no further questions and he said that's correct this is not the normal practice and mr miller made very clear that he lacked the information to make intelligent use of his strikes it's not that working or having a family member in law enforcement means you can't serve it doesn't mean that for cause you must not serve but mr miller was denied the ability to even make a challenge meaningfully or intelligently and that was exactly the problem in the littlejohn case that i'll be submitting today which is material i don't materially identical to the situation here i'll reserve the balance of my time it please the court my name is ian richardson i represent the united states in this case and i want to address one of the points that defense council made and that was a think a question the judge brought us asked that was whether any person was related to law enforcement made on the jury in the answer to that is actually yes the answer to that is yes because of the fourteen individuals who raised their hand and identified raise their paddles and identified a relationship with law enforcement twelve of them were struck for cause one was the subject of primary challenge and one of by the defense and the other was seated in a panel on the jury so with the two people who made it last one was known to have that relationship that's right the juror number fifty two and he disclosed his relationship to a cousin in the new york city police department among those of the defendant chose to use his propre strikes for this kind of had ten peremptory strikes the two people that made it through the challenge for cause process who had then a fight a relationship to law enforcement he was only one of those strikes on one of the two the judge in this case struck most of the jurors based on his own determination of cause but there were not independent requests by that it was was the are your colleagues on the other side  recognized i think that they don't raise any challenge to the proceedings for challenges for cause but was there an opportunity here to make challenges for cause i didn't see i and i was one of the assistants below to try the case it was a bit unusual in the sense that the judge did most of the strikes for cars himself if there had been it without asking me he made his own determination had there been a moment to do so i'm confident that the opportunity would've been seized if the judge explain what the process was going to be beforehand he did where i say i don't have the record set in front of me but it was addressed at the very beginning of jury selection he explained to the parties that they would be conducting the questioning only to find his approach there wasn't any provision for when challenges for cause would be made or what would be from which the parties would be exercising their peremptory as for the for the panel of twelve i mean defense counsel made an incorrect strike during number eighty four who is not really in that powell to the judge explain what was going to happen in terms of the numbers how many are going to be in your jury panel and then we're going to have an alternate panel and there were too many jurors left open at the end well i will say is that my recollection is that at least speaking for the government we had enough information to strike the jurors that we thought we needed to strike in order to impanel the jury in the box i don't recall there being significant fusion on our side when i do recall is that defense counsel was a bit disorganized and it was something that and it's reflected in the record that some of the comments from the district judge to defense counsel some frustration about the way in which defense counsel had been a disorganized in in identifying the jurors that he wanted to strike so i personally i don't recall having any confusion about how the matter was to proceed i recall being instructed by the court at the beginning as to how the jury saw the void here in the jury selection would take place and i was not particularly surprised when we got to the point where we were ready to use our strikes and we used our strikes in a manner that i think was consistent with how the judge my recollection is that because there were so many jurors who were struck for cause by by the court and disheveled group of members of the veneer were brought up to supplement and after going through the in the initial first phase of the paddle raising with those that group of jurors and the ones that have been identified that were could serve that were suitable for service then those were then seated in the box and then the parties were two jurors who were laughed and so you take twenty eight you take eight for the alternate pool and then you have these other jurors that what the appellant doesn't raise that whole process going thank your honor i think i think your honor as you've already pointed out there's been no case to reverse and order a new trial based on a similar concern based on these types of concerns about happened in this case twenty questions were asked of every single member of the veneer and every single member of the venier who was who the parties could potentially exercise point three strikes against were invited up for individual questioning in front of the district judge in that process those members of the vineyard disclose a number of things about themselves and about their views that caused many of them to be struck for cause and and  provided useful information to defense counsel now he's right that with respect to some of those jurors who did not answer affirmatively to the questions and were invited out by the district judge and asked there was anything that caused them to be unable to be fair and impartial and they answered no there was not a great deal of information but there was not no information you knew that from their negative answers to any of those questions than answers to that list of twenty questions was no now different judges do for dear very differently and i am not quite sure on what basis mr larson is contending that this is outside the normal or the standard i have personally i don't have a great deal of trial experience  defer to the members of the bench who do i have more trial experience than i do but in my informal conversations with my colleagues there are some judges who ask very few questions of potential jurors and that's not terribly unusual heard what would happen if the judge you know you're right shouldn't have been excused i believe the jurors were sent back down to the central jury room so they were down my understanding is that they were they would have been down in the central jury room for potential recall if if that were necessary in addition we have of course the contact information that caused them to be brought to the court in the first place so in the worst case scenario that one of the jurors had left the courthouse we could have taken and there could have been a break in the proceedings we could have called them back we could have some of them back to the courthouse and in any event the judge decided to batson challenge against the defendant and for the government and the defendant hasn't raised that on appeal i raise that just to point out though that the defense did have the opportunity to make objections because for example they raised the batson challenger in the volunteer process so they intended to research challenge before college strikes they could have but they unexplored could it not be said that the proceedings left largely unexplored an important source of potential bias i don't believe so your honor i believe based on the law enforcement question and i understand the defense counsel has it has no quibble with the way the judge chose to phrase that question how did the side bar work exactly so it's not the side bar the judge of course was there with the juror and both counsel right that's correct your honor and  each of the counsel present of the sidebar and able to interject a question or a follow up on anything that was said by the judge my recollection of the way that it proceeded is that typically the judge would wait until the way counsel for both sides are present at the sidebar and at some point even want when they're there with the court reporter or shortly thereafter while the jure the member the veneer is still around defense counsel could follow that's correct so if this was a concern of theirs they were that they were there was no impediment to their asking a question on this trial the nature of the name of the of fans the elements of the of fans were disclosed but not the underlying details of the times is that correct that's correct here are the government to call any witnesses  letter consistent oh it will be the littlejohn case where on questioning identical to to the questioning here the d c circuit found a reversible error and a new trial was ordered your honor just asked my colleague here if there was an impediment to the questions being asked he said no you personally there you know your honor i'm an appeals lawyer there was an impediment and defense counsel at trial put it very plainly i can't exercise parameterise if i don't know if people have relatives in law enforcement lacking the basic foundational information to even make a challenge is the problem here you know but my defense counsel at the s was at least in some cases after the juror had gone back given the opportunity to say that there were a couple of other questions of follow up that should be asked with that witness and the judge i think on some occasions asked follow up questions but not the important ones your honor the most glaring one that your honor brought up the individual who volunteered that he feels strongly on border patrol the judge said good for you go take a seat we said judge could you please ask him does that mean you have a problem being fair no denied use your peremptory your but you you in your brief don't raise a question that there should have been a challenge because you're right you but we're using it to illustrate the problem here that was the most kind of glaring example of not inquiring further than there were when there was not just a basis but when the jerk himself said there is a problem here i i don't think i can be fair and this is why dear was extraordinary in many ways one of them was the sheer number of people who are simply excused if the judge thought that they were too close to one course meant they were off without even asking asking the lawyers information that was volunteered by the jurors in response to questions about immigration and coming from jamaica so that it's really not a case where you didn't get a lot of information about the jurors your honor if we had to rely on jurors self identifying biases we could never intelligently exercise strikes these jurors are to be commended for being forthright about their biases in this case but that doesn't address the problem of identified here the problem here was the failure as this court recognizing givens the failure to it rather it was the foreclosure of a line of inquiry necessary to lay the groundwork for peremptory knowing in a trial where all the government's witnesses work for law enforcement and mr miller is accused of lying to law enforcement we need to know if there's anyone connected to law enforcement if we're going to intelligently exercise this and the fact that some people volunteer that because they are forthright in saying yeah i think there might be a problem doesn't mean there aren't others who honestly believe they don't have a problem in this court explain that in tora's we don't rely on individual prospective jurors to self identify their biases because we recognize that some people may actually want to conceal them but probably a lot of other people just aren't aware of these biases the purpose of why dear is to identify bases on which we can reasonably challenge individuals and here that information which is lacking we want that what the case comes down to is not not the failure to elicit other information such as education and marital status but for reversal that were briefing all of it your honor because we briefed not only the failure to ask the question properly and that alone was reason for risa littlejohn but we also invoke this court's line of precedent expressed in laws that to make intelligent exercise  printers there has to be a feel of a basic idea of who is going to potentially sit in judgment of you and here not knowing not just what they did for a living but who the members of their household were what newspapers they read basic information that we have observed is asked in many trials it doesn't mean that they're necessarily excludable for cause but it is the it is the basic stuff with which we intelligently exercise where to try to exercise our strikes you know the failure to accept the failure to ask what newspapers you read use sufficient we were most of all know your honor it's cumulative that's what we're arguing on this record here it is cumulative we are not saying the failure to ask about newspapers is reversed no we're not your honor we're looking at the record as a whole nothing was asked other than name and county of residence everything was volunteered and again it was volunteered in the context of only reserve hand if you're biased we're not going to objective lead and make an analysis you're going to rely on yourself reporting but your counsel who defend them what did counsel walking into this proceeding what information did they have on the members of the veneer the names in the counties of residence that's all that's in the record other than what the jurors volunteered during the course is that all that's what the record reflects yes i thought that some people wrote out some additional information some people said what they did or i believe there was yes the judge  this is i think their standard form there was a form that i believe was made i think one of the defense lawyers said we have some people filling out employment information the judge said i don't know what that is it wasn't given to me i'm assuming it was prepared by the correct your honor why don't you tell us what counsel had before them all want paper if they were able to review prior to the jury selection proceeding the clerk's office generated an electronic a list of all  members of the jury that had their names and had their counties of residence and i recall that for a very small number i don't think it was very many at all there was an indication about what they might do for a living so i and i and i want to say a small number i only recall it being present for a few out of the list of one hundred and one hundred fifty total and there is no revive it that that was the form that was provided to counsel you're right thank you thank you washing i want to have a quick response certainly yes the small number is akin to the people who volunteered the problem here is that we lack the basic information we requested a jury questionnaire the judge said no we requested back on from mission not just on one thing your honors but on everything that would reasonably support a challenge and that's the problem here on this very unusual record thanks