NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

20-P-747 Appeals Court

20-P-767

20-P-808

COMMONWEALTH vs. MARKEESE MITCHELL (and two companion cases1).

Nos. 20-P-747, 20-P-767, & 20-P-808.

Suffolk. December 2, 2022. – July 10, 2023.

Present: Wolohojian, Henry, & Hershfang, JJ.

Homicide. Jury and Jurors. Evidence, Bias, Disclosure of 

evidence. Practice, Criminal, New trial, Jury and jurors, 

Voir dire, Challenge to jurors, Investigation of jurors, 

Conduct of juror, Disqualification of judge.

Indictments found and returned in the Superior Court 

Department on April 18, 2008. 

Motions for a new trial, filed on June 11 and July 5, 2018,

were heard by Judith Fabricant, J., and a motion for 

disqualification, filed on June 18, 2020, was considered by her.

Cathryn A. Neaves for Markeese Mitchell.

Richard B. Klibaner for Pedro Ortiz.

Brooke Hartley, Assistant District Attorney, for the 

Commonwealth.

Richard L. Goldman, for Terrance Pabon, was present but did 

not argue.

1 One against Terrance Pabon and one against Pedro Ortiz.
2

WOLOHOJIAN, J. In these gang-related retaliatory murder 

cases, a juror did not disclose that she had a half-brother who 

was serving a sentence for a similar crime. The posttrial 

discovery of this information eventually led to so-called Fidler

motions, see Commonwealth v. Fidler, 377 Mass. 192, 200-201

(1979), and to motions for a new trial. The main question 

presented here is whether the judge, who had also been the trial 

judge, erred in denying the motions for a new trial after 

crediting the juror's explanation, made under oath during an 

evidentiary hearing, for her nondisclosure. In addition, the 

defendants argue that the judge should have disqualified herself 

from hearing the motions because she had written a letter in 

support of the lead trial prosecutor's application to become a 

Superior Court judge, and because of her interactions with him 

after he was appointed to the bench. We conclude that the judge 

did not err in denying the motions for a new trial given the 

judge's credibility determinations concerning the juror's 

testimony at the Fidler hearing, and given the judge's other 

findings of fact. We also affirm the judge's order denying the 

motion to disqualify. The performance of the prosecutor was not 

at issue in any of the matters pending before the judge.

Background. The facts as they could have been found at 

trial are set forth in this court's opinion affirming the 

judgments. See Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 
3

cert. denied, 580 U.S. 899 (2016) (Mitchell I). In brief, the 

defendants were friends and relatives of Jaleek Leary, whose 

face had been slashed by Terrance Jacobs, who was associated 

with the M.O.B. gang. In retaliation for that event, a fight 

was arranged between a group associated with the Wilcock Street 

area, which included the defendants, and Jacobs, who was lured 

to the spot. The defendants stabbed and beat Jacobs to death.

The defendants, together with Paul Goode (who is not a 

party to this appeal), were charged with murder in the first 

degree for Jacobs's death. The case went to trial in April 

2010, and began with a multiday jury empanelment process about 

which the defendants claim no procedural error. Juror no. 15 

(juror) was seated on the fifth day of empanelment. As part of 

that process, the judge carefully explored a multitude of 

sources of possible bias. Among other things, the judge 

described the case to see whether anything about it would cause

any member of the venire to have difficulty being fair and 

impartial to both sides:2

2 The judge defined the concept of fairness and impartiality 

for the venire as follows:

"Being fair and impartial doesn't necessarily require 

that you've never had any experiences, or read anything or 

heard anything, or had any thoughts or opinion on any 

subject that might be relevant. There probably wouldn't be 

a lot of people who would fit that description. Being fair 

and impartial requires that you can, and you will, put 

aside any experiences or anything you may have read, or
4

"This case arises from an incident that occurred on May 

22nd of 2007, on Havelock Street in Dorchester. The 

Commonwealth alleges that on that date, in that place, that 

each of these four defendants participated in stabbing 

Terrance Jacobs, causing his death."

The judge also informed the venire that there "may be evidence 

with respect to the events in issue here relating to retaliation 

for another incident of violence that may have occurred at an 

earlier time" and asked whether that would affect anyone's 

ability to be fair and impartial. In addition, the judge 

inquired whether any venire member would have difficulty being 

fair and impartial if there were "evidence regarding 

interactions among certain individuals in the Mattapan and 

Dorchester areas of Boston, and particularly in the areas of 

Columbia Road, Wilcock Street, Havelock Street and Blue Hill 

Avenue."

The judge also explored the topic of the juror 

questionnaire, which the members of the venire had completed

heard, or thought about relevant subject matter and that 

you will decide the facts of this case based solely on the 

evidence that will be presented in the trial of this case.

"Being fair and impartial also requires that you can, 

and you will, apply to the facts that you will find from 

the evidence, the law as I will instruct you, even if that 

isn't what you thought the law was, even if it isn't what 

you think the law should be, that you can, and you will, 

apply the law as I will instruct you to the facts that you 

will find from the evidence presented in this trial. 

That's what we mean by being fair and impartial to all 

parties in this case."
5

before being called up to the court room or learning anything 

about the case. The judge repeated the questions on the 

questionnaire, and told the venire that if they had omitted 

anything -- for whatever reason -- they should bring it to the 

judge's attention when questioned individually. Of relevance 

here, the judge focused on the question that asked, "Have you, 

or anyone in your household or family, ever had any of the 

following experiences with the law," and listed, among other 

things, being arrested, being convicted of a crime, and being a 

witness in a civil or criminal case. The juror answered this 

question "no." With respect to this question, the judge 

emphasized the need for full disclosure, and specifically 

stressed that responsive information should not be omitted 

simply because the venire member believed the information was 

irrelevant.3

3 The judge explained:

"This is an area where a lot of people leave something 

out, perhaps because something happened a very long time 

ago, or it seems completely irrelevant, or it was 

dismissed, or it was when you were a juvenile, or for any 

of a number of reasons people leave something out.

"It is very important that we have a complete and 

accurate answer to this question, even if you think it's 

really irrelevant. Indeed, it may be irrelevant, but we 

need to know the information so that we can make a judgment 

about whether it has any relevance."
6

The juror did not indicate an affirmative response to any 

of the judge's questions to the venire. When the juror was 

called to sidebar for individual questioning, she confirmed that 

she could be fair and impartial to both sides, and stated that 

she had nothing further to disclose. When asked whether the 

location of the crime on Havelock Street would have any bearing 

on her ability to be fair and impartial, she responded that it 

would not. And she explained that she lived "on the other side, 

more on the street side so it's nowhere near there." The judge 

found the juror indifferent, and all parties stated that they 

were content with the juror.

Shortly thereafter, the judge received information from the 

Commonwealth's investigator that the juror had been involved in 

a minor motor vehicle criminal matter in the Dorchester Division 

of the District Court Department in 2008 that had resulted in a 

fine, which she had not disclosed on the juror questionnaire. 

When asked by the judge why she had not disclosed the 

information on the questionnaire, the juror explained that she 

did not believe the information was relevant since the earlier 

matter had been dismissed, and that she did not think "it would 

affect anything." In response to follow-up questioning by the 

judge, the juror again stated that she believed that she could 

be fair and impartial to all parties in this case. The judge 

determined that there was no reason to excuse the juror for 
7

cause,4 neither side requested that she do so, and no one 

exercised a peremptory challenge. The juror was accordingly 

seated and, after a lengthy trial, was a member of the jury 

that, in May 2010, convicted all four defendants of the lesser 

charge of murder in the second degree.

Two and one-half years later, in December 2012, the 

defendants filed a joint motion pursuant to Fidler, 377 Mass. at 

200-201 (first Fidler motion), seeking to subpoena the juror. 

The basis for the motion was that the juror had failed to 

disclose that (1) her half-brother, Karl, was incarcerated and 

was associated with the Lucerne Street Doggz, a gang that had an 

alliance with M.O.B., the gang with which the victim in this 

case was associated; (2) she had a half-sister, Shantel, who had 

served as a witness in a murder trial a year before the trial in 

this case; (3) her answer regarding her familiarity with the 

location of the crime was "oblique" and not forthcoming; and (4) 

she had waved during the trial to an aunt of Terrance Jacobs, 

who was a spectator at the trial and with whom she had attended 

high school. The defendants argued that the juror was biased 

against them and that she concealed information during 

empanelment in a deliberate effort to be seated so as to convict 

4 The judge noted that the juror had not been arrested, that 

she did not understand she had been charged with a crime, and 

that the judge was persuaded that the juror could be fair and 

impartial.
8

them. The defendants had learned about the juror's connection 

to Karl after the trial when defendant Ortiz and Karl had 

exchanged words while incarcerated at the same prison, and Karl 

had said something to the effect that "that's why my sister 

convicted you."

After an evidentiary hearing, the judge denied the first

Fidler motion, concluding:

"Overall, the evidence fails to establish any basis to 

believe either that the juror had any bias against the 

defendants, or that she concealed anything from the Court 

during [e]mpanelment. If she shares a biological father

with Karl and Shantel . . . , nothing indicates either that 

she could fairly be expected to consider them members of 

her 'household or family' for purposes of the question on 

the juror questionnaire, or that she had any awareness of 

their experiences with the legal system. As to [Jacobs's

aunt], even if she and the juror attended the same high 

school for some period of time, and even if the juror waved 

to her in the court room, nothing indicates that the juror 

had any awareness of any relationship she might have had 

with Terrance Jacobs, or that their acquaintance would have 

given rise to any bias in the juror. Nor does the juror's 

residence approximately a mile from the location of the 

incident suggest any bias."

The judge's denial of the first Fidler motion was affirmed in an 

appeal that was consolidated with the direct appeals of 

Mitchell's, Pabon's, and Ortiz's convictions.5 See Mitchell I, 

89 Mass. App. Ct. at 30-31.

Thereafter, in 2017 and 2018, Mitchell, Pabon, and Ortiz

each renewed their Fidler motion based on newly-discovered 

5 Goode's appeal was severed.
9

information, and also filed motions for a new trial. The new 

information was in the form of social media postings that

postdated the trial by several years and tended to show that the 

juror considered herself to have a family relationship with Karl 

and Shantel. Based on this new information, the judge brought 

the juror into court for questioning, which the judge conducted 

herself based on questions previously submitted by the 

defendants -- the procedure endorsed in Fidler, 377 Mass. at 

202-203.6

In a detailed memorandum of decision, the judge set out her 

findings and rulings on the motions for a new trial. She found 

"the juror's testimony to be a candid and honest presentation of 

the facts as she believe[d] them to be," and the judge credited 

and relied on the juror's testimony in making her findings. 

Those findings were:

"The juror has several younger half-siblings on 

her father's side, including two who are relevant 

here, Karl . . . , and Shantel . . . . Karl and 

Shantel have the same mother, and grew up living with 

their mother, while the juror lived with her own 

mother. The juror has never shared a household with 

either Karl or Shantel. Shantel is some fourteen 

months younger than the juror, and Karl is almost four 

years younger than the juror. During their childhood, 

6 Before deciding to call the juror in for questioning, the 

judge conducted a nonevidentiary hearing and requested that 

further nonintrusive investigation be conducted cooperatively 

between the district attorney's office and defense counsel. 

This cautious step-by-step approach reflected the judge's effort 

to develop the necessary facts while avoiding harassment or 

exploitation of the juror. See Fidler, 377 Mass. at 202.
10

their father made efforts to bring his children 

together and encouraged them to form relationships. 

Those efforts achieved some degree of success, more as 

between the juror and Shantel, who were close at 

times, than between the juror and Karl, whose 

relationship, in the juror's words, was 'on and off.' 

Karl has at times used a nickname of 'Pops.'

"In September of 2007, Karl was arrested in 

connection with a shooting in Dorchester. An article 

in the Boston Herald [newspaper], dated September 29, 

2007, reported the following:

'A police source identified one of the 

[juvenile shooter's] accomplices, Karl . . . , 

18, of Dorchester, as leader of the Lucerne

Street Doggz, which earlier this year was hit by 

federal authorities who arrested more than a 

dozen members in a sweep. However, since the 

raid, Lucerne Street has remained active, with 

cops linking several shootings to the gang 

including an Aug. 18 hit on Morse Street that 

left three teens wounded.

'Police sources said [Karl], who was 

arrested in July for a daylight brawl on the 

steps of Dorchester District Court, has been 

linked to four recent shootings.

'He was held on $100,000 cash bail yesterday 

and had his bail revoked for the July assault and 

battery charge.'

"The juror read the article at or about the time 

it appeared. She had not previously heard of the 

Lucerne Street Doggz, and had no awareness of it or of 

any involvement Karl may have had with it. Sometime 

after she read the article she discussed it with 

Karl's mother, who confirmed that Karl was 

incarcerated and shared some information about the 

charges against him. The juror did not receive any 

information from Karl's mother, or from any other 

source other than the Herald article, about any 

involvement Karl may have had with the Lucerne Street 

Doggz, or any other gang-related activity. Nor did 

she learn of any connection, either friendly or 
11

hostile, between the Lucerne Street Doggz and any 

other gang or group.

"Paul [B.], the father of the juror's child, came 

to know and to be friends with Karl through the juror. 

As of the time of [e]mpanelment in April of 2010, the 

juror's intimate relationship with [Paul B.] had 

ended, although she still had some interaction with 

him related to their child. As of the time of 

[e]mpanelment, the juror had never heard anything from 

[Paul B.] regarding any gang activity, or any 

involvement of Karl in any such activity. After the 

trial had concluded, the juror told [Paul B.] and 

others that she had served on a murder trial. She did 

not discuss with [Paul B.] any further details about 

the trial, or about the event that gave rise to it, 

until years later.

"Karl was convicted of various offenses on August 

19, 2009, and sentenced to 4-5 years in state prison, 

where he remained through the time of this trial. The 

juror never visited him in any facility or otherwise 

communicated with him at any time during his 

incarceration. As of April 19, 2010, when she 

appeared for [e]mpanelment, the juror had not seen, 

corresponded with, spoken with, or communicated in any 

form with Karl since prior to his arrest in September 

of 2007. She knew that he was incarcerated, and had 

heard some information about his offenses, but her 

only information regarding any gang involvement that 

he may have had was from the reference to the Lucerne 

Street Doggz in the Herald article some two and onehalf years before. At the time of empanelment, the 

juror had no bias or opinion or loyalty relating to 

the Lucerne Street Doggz, anyone associated with 

Wilcock Street, or any other gang or group. She had 

never heard of MOB, had no information about it, and 

had no bias or opinion or loyalty relating to it.

"The juror and her half-sister Shantel were 

relatively close at times as they were growing up, but 

grew apart in their teenage years, first when the 

juror became a mother, and then when Shantel went to 

college in Florida in around 2006. At the time of 

[e]mpanelment in this case, Shantel had returned from 

Florida, and the juror was in communication with 

Shantel 'here and there.' Shantel testified under a 
12

grant of immunity at the trial of a homicide case in 

Suffolk Superior Court in 2009, arising from an event 

that occurred on December 31, 2006. The juror was not 

aware of that case, or of Shantel's involvement, 

either at the time it occurred or at the time of 

[e]mpanelment in this case. She learned about it, 

although not in detail, some years later.

"At [e]mpanelment in this case on April 19, 2010, 

the juror checked the 'no' box on the juror 

questionnaire in response to the question whether she 

or any member of her 'household or family' had had any 

experience with the law. As to Shantel, the juror 

gave that answer because she had no knowledge at the 

time that Shantel had had any involvement in any case. 

As to Karl, the juror gave that answer because he was 

not a member of her household, and because, although 

he was a member of her family, as she testified, she 

'didn't think he had any relation to this trial.' The 

Court credits this answer as a true reflection of the 

juror's thinking when she filled out her jury 

questionnaire.

"Karl was released from incarceration some time 

in 2011 or 2012. After Karl's release, the juror's 

relationship with him resumed, as before, 'on and 

off.' He would, in her words, 'check up on' her and 

her daughter from time to time. At some point Karl 

became a father, which increased the juror's 

interaction with him. They communicated at times by 

telephone or text, and saw each other occasionally at 

gatherings, such as a baby shower in approximately 

2015, a child's birthday party, and the like. The 

juror posted photographs of such gatherings on social 

media. At some point after Karl's release, the juror 

heard through 'word on the street' that Karl had been 

involved in gang activity; she received no more 

detailed information than that." (Footnotes omitted.)

The judge credited the juror's testimony that she had no actual 

bias and that the juror had no knowledge of anyone who was 

connected to her having any connection to the victim in this 

case or to any gang with which the victim may have been 
13

affiliated. The judge concluded that the three defendants 

failed to show actual or implied bias on the part of the juror.

The judge acknowledged that the juror's answer on the juror 

questionnaire was inaccurate because it failed to disclose that 

two members of her family, although they were not part of her 

household, had experience with the law. But the judge found 

that the inaccuracy was not dishonest because "it did not arise 

from any motive to mislead or conceal, but was based on the 

juror's independent evaluation of relevance." The judge noted 

that the juror's independent evaluation in this regard had 

violated the judge's instruction to disclose all responsive 

information regardless of the juror's view of relevance. But 

the judge concluded that the juror's judgment was not 

unreasonable given the limited information the juror had about 

her half-brother and about the facts of this case at the time 

she answered the juror questionnaire.

In addition, the judge found that, even if the juror had 

answered the questionnaire correctly, the accurate disclosure 

would not have given rise to a viable challenge for cause. The 

judge determined that, in light of the juror's limited knowledge 

at the time, an accurate disclosure would have revealed only 

that the juror's half-brother, with whom she had an on and off 

relationship, had been convicted of crimes. Although the judge 

acknowledged that the juror might have related what she had read 
14

about her half-brother in the Boston Herald two and one-half 

years earlier, the judge stated that she "would not likely have 

relied on [the juror's] recitation of a media report, and 

nothing before the [judge] at the time indicated any relevance 

the Lucerne Street Doggz might have had to the case."

The judge also discredited defendant Ortiz's affidavit in 

which he asserted that "there was a violent rivalry between

members of the Lucerne Street/MOB gang and residents of Wilcock 

Street," because Ortiz provided no basis of knowledge for this 

assertion and had distanced himself from gang activity at trial. 

The judge accepted that Paul B. had a basis of knowledge for the 

assertion in his affidavit that Lucerne Street Doggz and M.O.B.

"have always been cool with each other," but concluded that this 

assertion would not have supported a challenge for cause. On 

August 10, 2018, the judge denied the motions for a new trial, 

and concluded that the renewed Fidler motions were moot because 

she had already afforded the relief they sought. The defendants 

timely appealed.7

7 The appeals from the August 10, 2018 order were stayed 

pending the defendants' subsequent motions for juror contact and 

to disqualify the judge. Ultimately, the appeals from the 

August 10, 2018 order were consolidated with the defendants' 

appeals from a June 23, 2020 order denying their motions that 

the judge disqualify herself and for a new hearing concerning 

the jury before a different judge.
15

Thereafter, in 2019, the codefendant, Goode, filed a motion 

for a new trial, in which he raised a claim of prosecutorial 

misconduct by the lead trial prosecutor, who had become a 

Superior Court judge in 2017 (seven years after the trial, and 

after the defendants' convictions were affirmed by this court). 

After receiving the motion, the judge notified Goode that, in 

her capacity as chief justice of the Superior Court, she had had 

substantial interaction with the prosecutor after he had become 

a judge and that she had submitted a letter to the judicial 

nominating commission in support of his application for a 

judgeship based on her knowledge of his work. The judge invited 

submissions on whether she should disqualify herself from 

considering Goode's motion for a new trial. On January 13, 

2020, after receiving Goode's motion to recuse, the judge 

recused herself from further involvement in Goode's case.

Spurred by the judge's recusal from Goode's case, the three 

defendants here then filed, in 2020, a joint motion to 

disqualify the judge and for a new Fidler hearing before a 

different judge. The defendants argued that the judge should 

have disclosed her posttrial interactions with the trial 

prosecutor before acting on the defendants' renewed Fidler

motions, which were filed in 2017,8 that she should have 

8 The defendants did not claim that there was any basis for 

disqualification before the judge ruled on the first Fidler
16

disqualified herself at that point, and that their Fidler

motions should be reheard by a different judge. The judge 

denied the motion, explaining that, unlike Goode, the three 

defendants here raised no issue of prosecutorial misconduct and 

that their Fidler motions were fully resolved before any such 

allegation had been made. The defendants' timely appeals from 

this order are before us, as are their appeals from the 2018 

order denying their motions for a new trial.

Discussion. The defendants argue that they are entitled to 

a new trial because, had the juror accurately disclosed the 

information about her half-siblings Karl and Shantel, she would 

have been viably challenged for cause. In addition, defendant 

Ortiz argues that the juror's inaccurate disclosures deprived 

him of the intelligent exercise of his right to peremptory 

challenges, thus entitling him to a new trial. Separately, the 

defendants argue that the judge abused her discretion in denying 

their motion to disqualify her.

1. Motions for a new trial; juror nondisclosure of 

information bearing on bias. When, as here, it is discovered 

after trial that a juror failed to disclose information during 

voir dire and that failure raises a nonspeculative question 

motion, the denial of which was affirmed in this court's 2016 

opinion affirming the convictions. See Mitchell I, 89 Mass. 

App. Ct. at 30-31.
17

about the juror's impartiality, the remedy "is a hearing in 

which the defendant has the opportunity to prove actual bias." 

Commonwealth v. Amirault, 399 Mass. 617, 625 (1987), quoting 

Smith v. Phillips, 455 U.S. 209, 215 (1982) (Phillips). If the 

hearing includes examination of the juror (a Fidler hearing), it 

is to be supervised and directed by the judge so as prevent 

interrogation of the juror from exceeding its proper scope. See 

Fidler, 377 Mass. at 202. A judge may (as the judge here did) 

decide to conduct the questioning herself, allowing counsel for 

both parties to submit proposed questions and object to any 

questions the judge intends to ask. Id. at 203. "A [Fidler] 

hearing permits counsel to probe the juror's memory, his reasons 

for acting as he did, and [his] understanding of the 

consequences of [his] actions. A hearing also permits the trial 

judge to observe the juror's demeanor under cross-examination 

and to evaluate [his] answers in light of the particular 

circumstances of the case." Amirault, supra at 626-627, quoting 

Phillips, supra at 222 (O'Connor, J., concurring).

The "crucial inquiry" at a Fidler hearing is whether the 

juror's answers during empanelment were honest. Amirault, 399 

Mass. at 626. See McDonough Power Equip., Inc. v. Greenwood, 

464 U.S. 548, 556 (1984) (McDonough). Honesty in this context 

is not the same as accuracy. An answer may be inaccurate while 

still being honest, depending on the juror's motivation when 
18

giving the inaccurate answer. A lack of memory, a 

misunderstanding of the scope or meaning of the question, or a 

mistaken view that information is irrelevant, are some examples 

of reasons why a particular nondisclosure -- even if material --

is benign in the sense that it does not reveal juror bias. 

"[O]nly those reasons that affect a juror's impartiality can 

truly be said to affect the fairness of a trial." McDonough, 

supra. See Amirault, supra at 625. The determination of 

whether the juror's answer was honest is a question of fact that 

rests with the judge. Id. at 626.

It is the defendant's burden to show, by a preponderance of 

the evidence, that the juror was not impartial. Amirault, 399 

Mass. at 626. See Faria v. Harleysville Worcester Ins. Co., 852 

F.3d 87, 96 (1st Cir. 2017). To obtain a new trial based on a 

juror's failure to provide accurate information, the defendant 

"must first demonstrate that [the] juror failed to answer 

honestly a material question on voir dire, and then further show 

that a correct response would have provided a valid basis for a 

challenge for cause." McDonough, 464 U.S. at 556. See

Commonwealth v. Emerson, 430 Mass. 378, 384 (1999), cert. 

denied, 529 U.S. 1030 (2000); Amirault, supra; Commonwealth v. 

Murphy, 86 Mass. App. Ct. 118, 126 (2014). "For this purpose, a 

voir dire question is material if a response to it 'has a 

natural tendency to influence, or is capable of influencing,' 
19

the judge's impartiality determination" (citation omitted). 

Sampson v. United States, 724 F.3d 150, 165 (1st Cir. 2013). 

"If the judge finds that the juror answered voir dire questions 

mistakenly, but honestly, the analysis as to actual bias ends, 

and the judge must find the juror impartial." Murphy, supra. 

"In the absence of clear abuse of discretion or a showing that 

the judge's findings were clearly erroneous, the judge's ruling 

[on the motion for a new trial] will not be disturbed on 

appeal." Amirault, supra.

With this analytical framework in mind, we turn to the 

specifics of this case. It is undisputed that the juror 

inaccurately answered "no" to the question whether anyone in her 

family or household had been arrested or convicted of a crime or 

had been a witness in a civil or criminal case; her half-sister 

Shantel had been a witness in a murder trial the year before, 

and her half-brother Karl was serving a sentence for serious 

crimes. But there was no affirmative evidence that the juror 

knew that Shantel had been a witness in another case, and the 

judge was entitled to credit the juror's testimony that she did 

not know that Shantel had been so. The defendants thus failed 

to demonstrate that the juror's answer was not honest with 

respect to Shantel; juror bias is not established when a juror 

fails to disclose a material piece of information if the reason 

for the nondisclosure is that she did not know it.
20

The judge also credited the juror's testimony about Karl. 

The juror knew that Karl was incarcerated, and she had some 

knowledge of the nature of his offenses from having read an 

article in the Boston Herald over two years earlier. That 

article described Karl as a leader of the Lucerne Street Doggz 

gang. But the judge credited the juror's testimony that the 

juror had never shared a household with Karl, that their 

relationship was on-and-off, and that she had had no contact of 

any sort with him while he was incarcerated. The judge also

credited the juror's testimony that the juror had no bias or 

opinion or loyalty relating to the Lucerne Street Doggz or any 

other gang or group. It should be noted that, at the time of 

empanelment, neither the judge nor the jurors had been informed 

that the Lucerne Street Doggz had any connection to this case. 

Although the jurors were asked about their knowledge of a group 

called M.O.B., the judge credited the juror's testimony that she 

had never heard of M.O.B., had no information about M.O.B., and 

had no bias or opinion or loyalty relating to it.

Of critical importance, the judge credited the juror's 

explanation for why she answered the juror questionnaire as she 

did. The juror explained that she did not disclose information 

about Karl both because he was not a member of her household and 
21

because she did not "think he had any relations to this case."9

It bears noting in this regard that the juror filled out the 

questionnaire before coming to the court room and before knowing 

anything about the case, and that this timing supports the 

judge's finding that the juror's nondisclosure was due to a 

mistaken idea that she need not disclose information she 

considered irrelevant. Although the juror subsequently heard a 

description of the case during empanelment, that description did 

not mention the Lucerne Street Doggz, any connection between 

M.O.B. and the Lucerne Street Doggz, or that the case involved 

gangs. Thus, any connection between Karl's activities and the 

case at hand would not have been readily apparent, let alone 

explicit, to the juror. These facts, too, support the judge's 

credibility determination.

The fact that the juror seems to have used the same 

erroneous relevancy filter across the board also supports the 

judge's decision to credit the juror's explanation that 

relevancy -- and not bias -- was the reason the juror failed to 

disclose the information about Karl. When it was discovered 

9 The questionnaire sought information concerning members of 

the juror's "family" or "household," without defining either

term. Karl had never been a member of the juror's "household." 

Although Karl and the juror were related by blood, the juror and 

Karl had never lived together, even as children, and had never 

been close, leaving it unclear whether they were "family," as 

that term was intended by the juror questionnaire.
22

during voir dire that the juror had failed to disclose that she 

herself had previously been involved in a relatively minor 

criminal proceeding, she explained, "I didn't think that was 

that relevant because it was dismissed, so I wasn't thinking 

that it would affect anything." Moreover, this explanation was 

accepted as truthful by the judge and defense counsel, all of 

whom assessed the juror's credibility firsthand and concluded 

that the fact that she had failed to disclose the information 

about her own minor criminal history was not a basis to 

challenge her for cause or peremptorily.

Undoubtedly, the juror should not have filtered her answer 

on the questionnaire based on her view of whether responsive 

information was relevant, in contravention of the judge's 

instruction. But the question here is not whether the juror 

provided incorrect answers, but whether the judge's finding that 

the juror did so honestly is clearly erroneous. Given the 

judge's subsidiary findings, which are well grounded in the 

evidence she credited from the Fidler hearing, we see no error 

in the judge's conclusions that the juror answered the 

questionnaire inaccurately but honestly and that, as a result, 

the defendants failed to establish that the juror was actually 

biased.

For three reasons, the dissent would allow a new trial 

based on the juror's failure to disclose the information 
23

regarding Karl. First, the dissent asserts that a juror who 

"knowingly decide[s] not to disclose information called for by 

[a] juror questionnaire or a voir dire question" cannot, as a 

matter of law, be found to have been "honest." Post at . To 

begin with, the determination of whether a juror has been 

"honest" in answering voir dire questions "is a question of fact 

[that] rests with the trial judge." Amirault, 399 Mass. at 626. 

Here, the record does not support the assertion that the juror 

"knowingly" or "consciously" made a decision to not disclose 

information in the sense that the dissent suggests, namely, for 

the purpose of concealing bias. Instead, the evidence was that 

the juror failed to disclose the information because she 

mistakenly decided it was not relevant. Clearly, the juror's 

assessment in this regard was incorrect. But, for all the 

reasons we have already set out and therefore do not repeat 

here, that does not mean that the judge could not credit the 

juror's explanation. The juror's credibility was assessed 

firsthand by the judge twice -- once during voir dire and again 

during the Fidler hearing -- and the judge accepted the juror's

truthfulness both times. Surely, we are in no position to make 

a contrary credibility assessment retrospectively. See

Commonwealth v. Day, 387 Mass. 915, 919 (1983) ("it is 

inappropriate to ask us to reverse a judge's findings involving 
24

credibility, since he saw the witnesses and we did not"

[citation omitted]).

Second, the dissent believes that the judge misapplied 

Amirault by considering the juror's motivation in determining 

whether the juror was "honest." We do not read Amirault to

create a rigid sequence of considerations the judge must use, 

let alone to confine consideration of the juror's motivation 

only to deciding whether to grant a for-cause challenge. The 

dissent's reading appears to be based on the use of the word 

"first" in the following passage, which the court in Amirault

quoted from McDonough, 464 U.S. at 556:

"[T]o obtain a new trial in such a situation, a party 

must first demonstrate that a juror failed to answer 

honestly a material question on voir dire, and then 

further show that a correct response would have 

provided a valid basis for a challenge for cause."

Amirault, 399 Mass. at 625. It strains the language to read 

this passage as creating sequential burdens of proof (i.e., a 

party must prove one thing before proving the next) rather than 

additive ones (i.e., a party must prove both). Such a reading

also ignores the very next sentence, to which the court in

Amirault deliberately added emphasis:

"The motives for concealing information may vary, but 

only those reasons that affect a juror's impartiality 

can truly be said to affect the fairness of a 

trial . . . ."
25

Id., quoting McDonough, supra. Thus, even were we to accept 

that McDonough created a two-step sequential test, under 

Amirault, the question of the juror's motive is the crux of the

inquiry. This makes sense because no assessment of whether an 

answer is "honest" can be made without looking at motivation. 

Otherwise, "honest" becomes a synonym for "accurate," and a new 

trial would automatically be required in any case where a 

potential juror fails to disclose responsive information within 

the juror's possession.

Our reading of Amirault is confirmed by its application of 

the test it articulated. First, the court accepted the trial 

judge's findings that the juror's misstatements were "honest 

mistakes" and that the juror "did not intend to conceal the 

information and did not know that defense counsel was misled." 

Amirault, 399 Mass. at 626. Based on the trial judge's

subsidiary findings regarding the juror's reasons for the 

inaccurate statements, the Supreme Judicial Court concluded that 

the juror had answered "honestly" and affirmed the order denying 

the motion for a new trial.

Third, the dissent argues in favor of changing the law to 

create a rebuttable presumption of prejudice whenever a juror 

fails to disclose responsive information during voir dire or on 

a juror questionnaire. We offer no opinion on the advisability 

of changing the law in the manner the dissent advocates. 
26

However, we note that, although in Amirault the court

acknowledged that "in certain exceptional circumstances[,] 

implied bias may be applicable," it rejected the argument that 

juror bias "should be presumed . . . as a matter of law" 

whenever there is a nondisclosure. Amirault, 399 Mass. at 628.

2. Juror nondisclosure of information bearing on bias; 

peremptory challenge. Ortiz alone argues that, even if the 

juror's failure to answer accurately the juror questionnaire 

would not have resulted in a viable challenge for cause, it 

deprived him of his right to intelligently use his peremptory 

challenges, which is a structural error entitling him to a new 

trial without a showing of prejudice. "Although the Sixth 

Amendment to the United States Constitution and art. 12 of the 

Declaration of Rights of the Massachusetts Constitution 

guarantee the right to be tried by an impartial jury, there is 

no Federal or State constitutional right to exercise peremptory 

challenges." Commonwealth v. Mello, 420 Mass. 375, 396 (1995). 

Instead, peremptory challenges are creatures of statute. See

Commonwealth v. Berardi, 88 Mass. App. Ct. 466, 472 (2015).

We accept that Ortiz would have exercised a peremptory 

challenge had the juror accurately disclosed the information 

about Karl and her relationship to him, and that Ortiz was thus 

deprived of the intelligent exercise of that right. But this 

does not mean that he has shown that he is entitled to a new 
27

trial. Contrary to Ortiz's claim of structural error, in the 

absence of actual or implied bias, the deprivation of the 

nonconstitutional right to peremptory challenges based on juror 

misconduct is not reversible error without a showing of 

prejudice.

"The right to peremptory challenges is simply a means 

of selecting an impartial jury. If the remedy of a 

new trial is not available for violation of the 

constitutional right to an impartial jury because of 

juror misconduct unless a court finds that the juror 

was actually or impliedly prejudiced, it cannot follow 

that denial of a nonconstitutional right involving 

jury selection is reversible error without a showing 

of prejudice."

Amirault, 399 Mass. at 630-631. Ortiz has not argued, let alone 

demonstrated, prejudice, and therefore he is not entitled to a 

new trial based on the infringement of his right to 

intelligently exercise his peremptory challenges.

3. Disqualification. Article 29 of the Massachusetts 

Declaration of Rights states that judges must be "as free, 

impartial and independent as the lot of humanity will admit." 

This means "maintaining not only fairness but also the 

appearance of fairness in every judicial proceeding" (citation 

omitted). Commonwealth v. Morgan RV Resorts, LLC, 84 Mass. App. 

Ct. 1, 9 (2013). "[A]ctual impartiality alone is not 

enough . . . . In order to preserve and protect the integrity 

of the judiciary and the judicial process, and the necessary 

public confidence in both, even the appearance of partiality 
28

must be avoided" (citation omitted). Commonwealth v. Cousin, 

484 Mass. 1042, 1046 (2020). See S.J.C. Rule 3:09, Canon 2, 

Rule 2.11 (2016).

A judge must engage in a two-prong analysis to decide 

whether she should recuse herself. See Lena v. Commonwealth, 

369 Mass. 571, 575 (1976). The first prong entails a subjective

determination that the judge believes she can be impartial in 

the circumstances. Cousin, 484 Mass. at 1045. If the judge 

answers this prong in the affirmative, "[she] must next attempt 

an objective appraisal of whether this was a proceeding in which 

[her] impartiality might reasonably be questioned" (citation 

omitted). Id. At its core, the second prong asks whether an 

objective observer would "reasonably believe that the judge's 

impartiality may have been compromised." Id. at 1045-1046. To 

require disqualification, "the bias or prejudice must spring

from an extrajudicial source, and not from matters learned from 

participation in the case." Fogarty v. Commonwealth, 406 Mass. 

103, 111 (1989). We review a judge's decision not to recuse 

herself for abuse of discretion. See Commonwealth v. Eddington, 

71 Mass. App. Ct. 138, 143 (2008).

The defendants argue that the judge should have recused 

herself from ruling on their 2017 renewed Fidler motions and

their motions for a new trial. They contend that an objective 

observer would reasonably believe that the judge's impartiality 
29

may have been compromised by the fact that she had written a 

letter of support for the trial prosecutor before he was 

appointed to the bench and that, after his appointment in 2017, 

the judge (in her capacity as chief justice of the Superior 

Court) had had significant professional contact with him.

We see no abuse of discretion in the judge's careful 

decision to deny the motion for disqualification here. To begin 

with, as the judge noted, the defendants' Fidler motions and 

motions for a new trial raised no claim of prosecutorial 

misconduct. Instead, the focus was entirely on the misconduct 

of the juror. Second, no claim of prosecutorial misconduct had 

been suggested -- even by codefendant Goode -- before the 

motions had been decided. For both of these reasons, the 

situation here is entirely different from that in Cousin, 484 

Mass. at 1045-1046, on which the defendants rely.

Conclusion. We affirm the order denying the defendants' 

motions for a new trial and the order denying their motion for 

disqualification.

So ordered.
HENRY, J. (concurring in part and dissenting in part). The 

juror questionnaire calls for all jurors to answer the following 

question: "Have you or anyone in your household or family ever 

had any of the following experiences with the law?" and lists 

the following: "[b]een arrested"; "[b]een charged with a 

crime"; "[b]een convicted of a crime"; or "[b]een a witness in a

civil/criminal case." This juror (juror) answered the question 

"no" even though she considered her half-brother, Karl, family 

and she knew that he was then incarcerated for violent crimes.

The juror made a second decision not to disclose Karl's 

experience with the law when the judge cautioned all jurors not 

to decide the relevance of their or their family's experience 

with the law. Rather than heed the judge's instruction, the

juror again intentionally decided to not disclose this 

information.

The majority concludes that we should confirm the orders 

denying the defendants' motions for a new trial on the basis 

that the juror answered the jury questionnaire and voir dire 

honestly. I cannot agree. The juror consciously withheld 

information about Karl for which she knew the questionnaire 

called and then disregarded an instruction of the judge to 

disclose this same information even if the juror did not think 

it was relevant.
2

And while this respected judge thoughtfully analyzed prong 

two of the applicable test, her conclusion that an "accurate 

disclosure by the juror would not have given rise to a viable 

challenge for cause" is clearly erroneous, as explained more 

fully infra. See Commonwealth v. Amirault, 399 Mass. 617, 626 

(1987) ("In the absence of clear abuse of discretion or a 

showing that the judge's findings were clearly erroneous, the 

judge's ruling will not be disturbed on appeal"). If that 

finding is not clearly erroneous, then it is time to adopt a new 

standard: namely, when a defendant proves by a preponderance of 

the evidence that a juror intentionally failed to disclose 

information she knew she had been asked to disclose in voir 

dire, it should create a presumption that, if unrebutted by the 

Commonwealth, is sufficient to warrant a new trial. The 

information that the juror made a deliberate choice not to 

disclose, regardless of the reason for the nondisclosure, was so 

close to the subject matter of this trial that the defendants 

were entitled to a new trial.1

Discussion. As the majority correctly explains, to obtain 

a new trial, a party (1) "must first demonstrate that a juror 

failed to answer honestly a material question on voir dire," and 

1 I dissent only to section one of the majority opinion. I 

join the majority in sections two and three.
3

(2) "then further show that a correct response would have 

provided a valid basis for a challenge for cause." Amirault, 

399 Mass. at 625, quoting McDonough Power Equip., Inc. v. 

Greenwood, 464 U.S. 548, 556 (1984) (McDonough). As to the 

first prong, "the crucial inquiry is whether the juror's answer 

was honest; that is, whether the juror was aware that the answer 

was false" (emphasis added). Amirault, supra at 626. I address 

each prong in turn and then propose a new rule that better 

balances the right to an impartial jury with the important need 

for finality and the practical necessities of judicial 

management.

1. Whether the juror answered voir dire honestly. The 

juror checked the "no" box to the question asking if the juror 

or anyone in her "household or family ever had any of the 

following experiences with the law?" When the juror checked 

"no," she knew that Karl, her family member, was incarcerated at 

the time of this trial, had read in the Boston Herald newspaper 

about his alleged crimes,2 and had discussed them with Karl's 

2 The newspaper article stated that Karl, then eighteen, was 

a "leader of the Lucerne Street Doggz" gang, that "more than a 

dozen members" had been arrested "in a sweep," "with cops 

linking several shootings to the gang," including one the prior 

month "that left three teens wounded." The article also stated 

that Karl was arrested "for a daylight brawl on the steps of the 

Dorchester District Court" and "has been linked to four recent 

shootings."
4

mother and his sister (the juror's half-sister).3 The juror

decided not to disclose information that she knew the 

questionnaire called for her to disclose.

The juror made a second decision not to disclose Karl's 

experience with the law. During voir dire, the judge 

highlighted the importance of the question whether the juror or 

a household or family member had specified experience with the 

law. She stated, "This is an area where a lot of people leave 

something out, perhaps because something happened a very long 

time ago, or it seems completely irrelevant, or it was

dismissed, or it was when you were a juvenile, or for any of a 

number of reasons people leave something out." She then 

specifically instructed the jurors that they should not make 

personal judgments as to relevancy, stating, "It is very 

important that we have a complete and accurate answer to this 

question, even if you think it's really irrelevant. Indeed, it 

may be irrelevant, but we need to know the information so that 

we can make a judgment about whether it has any relevance." 

3 The father of the juror's child also was in a gang 

affiliated with the victim's gang. He explained in an affidavit 

that he was in the "group" BMB, that M.O.B. was "the younger 

generation of BMB," and that these two groups and the Lucerne 

Street Doggz "are all acquainted with each other and have always 

been cool with each other." Indeed, "[t]wo [of his]

cousins . . . are or at some time were members of the Lucerne 

Street Doggz." He "was acquainted with" the victim in this 

case, having met him "in [or] around 2005" and "heard about" the 

"murder when it happened." 
5

Again, the juror disregarded the judge's detailed and explicit 

instruction and made a deliberate decision not to disclose her 

half-brother's experience with the law.4,5

4 The juror also learned during voir dire that her relevancy 

filter was wrong. She omitted information about her own 

criminal record, failing to disclose charges for driving without 

insurance. This was yet a third time when the juror might have 

disclosed her half-brother's experience with the law. Indeed, 

every time a judge or trial counsel learns that a juror has 

withheld information they should have disclosed, the better 

practice would be to ask the juror if there was any other 

information the juror withheld, such as a family member's 

arrest, trial, or incarceration. Here, once the judge and 

counsel knew the juror had failed to disclose her own criminal 

history, nobody asked this follow up question. 

5 Even at the evidentiary hearing on the motions for a new 

trial, the juror continued to evade. After the juror admitted 

at the evidentiary hearing that she thought of Karl as a member 

of her family, that she knew at the time of this trial that he 

was incarcerated, that she had read the Boston Herald newspaper 

article, and that she had discussed Karl's situation with his 

mother and their sister, the juror had the following exchange 

with the judge:

The judge: "At the time of this trial when you came in as 

a juror, did you have any awareness of Karl being 

affiliated with any group or any gang or any organization 

or any other group of people that might be allied in some 

way?"

The juror: "No, not at the time of trial. No, I did not." 

This answer is not true. The juror had an "awareness" at the 

time of trial that Karl was a gang leader. The judge pressed 

again.

The judge: "At any time later on or before, did you have 

any awareness of that?"

The juror: "Later on, like after he got released and 

stuff, that's what the word on the street was. But he 
6

The standard set forth in Amirault, 399 Mass. at 626, is 

clear: was the juror "aware that the answer was false." See 

United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir. 1984) 

("the first prong of the McDonough test requires a determination 

of whether [the juror's] answers were honest, that is, whether 

he was aware of the fact that his answers were false"). "The 

determination of this issue is a question of fact and rests with 

the trial judge." Amirault, supra. "In the absence of clear 

abuse of discretion or a showing that the judge's findings were 

clearly erroneous, the judge's ruling will not be disturbed on 

appeal." Id. "[A] finding of fact by the trial judge will not 

be deemed clearly erroneous unless the reviewing court on the 

entire evidence is left with the firm conviction that a mistake 

has been committed" (quotation omitted). Id., quoting 

Commonwealth v. Tavares, 385 Mass. 140, 156, cert. denied, 457 

U.S. 1137 (1982).

This is not a situation where the juror had no memory of an 

event, see Amirault, 399 Mass. at 622, or where she answered 

"mistakenly, but honestly," Commonwealth v. Murphy, 86 Mass. 

App. Ct. 118, 126 (2014). In fact, the judge correctly 

didn't tell me personally that's whoever he used to hang 

out with, no."

Again, the juror denied "awareness" before trial that Karl was 

part of a gang. 
7

concluded that the juror's answer was "inaccurate," and that the 

juror "knew it was inaccurate."6 

The judge's conclusion that the answer was "not dishonest," 

because "it did not arise from any motive to mislead or conceal, 

but was based on the juror's independent evaluation of 

relevance" is an error of law. This conclusion conflated the 

two-part standard established in McDonough and followed in 

Amirault, by considering the rationale of the juror for 

intentionally withholding information during voir dire when 

applying the first prong of the standard. Instead, the judge 

must first determine if the juror's answer was honest, that is, 

if the juror knew their answer was false. Amirault, 399 Mass. 

at 625. If the judge finds that the juror knew their answer was 

false, only then should the judge consider the juror's "motives 

for concealing information," McDonough, 464 U.S. at 556, as the 

"reason behind the juror's dishonesty is important when 

considering whether a reasonable judge would strike the juror 

for cause" (quotation omitted), United States v. French, 977 

6 For an answer during voir dire to be dishonest it must be 

more than inaccurate -- it must be knowingly inaccurate. That 

is why I agree with the judge and the majority that the juror's 

nondisclosure of her half-sister Shantel's experience with the 

law –- experience the juror did not know at the time of 

empanelment in this case –- cannot be the basis for a new trial. 

The juror's disclosure was inaccurate as to her half-sister's 

experience but it was not dishonest, as the juror was not aware 

of the inaccuracy during voir dire.
8

F.3d 114, 126 (1st Cir. 2020), cert. denied, 141 S. Ct. 2601 

(2021).7 Because the juror knew her answer was inaccurate, she 

was "aware that the answer was false," Amirault, 399 Mass. at 

626, and as a result the judge's determination otherwise was an 

error of law.8

The judge's conclusion that "the juror's judgment of 

relevance was not, in the circumstances, unreasonable, in light 

of the limited information she had, both about Karl and about 

7 The majority is correct that Amirault, while quoting 

McDonough, states that "[t]he motives for concealing information 

may vary, but only those reasons that affect a juror's 

impartiality can truly be said to affect the fairness of a 

trial" (emphasis omitted). 399 Mass. at 625. However, the 

first prong of Amirault is whether the voir dire answers are 

honest. If the answers are not honest, motive is relevant to 

the second prong or element of the test. See French, 977 F.3d 

at 125 (considering motive for lying under second prong of 

McDonough); Sampson v. United States, 724 F.3d 150, 167 (2013)

(discussing second element of McDonough and "reason behind the 

juror's dishonesty").

8 It also is concerning that when the juror was brought in 

for questioning, the judge assured her that she was "not in any 

trouble." In fact, the juror questionnaire states "that a 

willful misrepresentation or omission of a material fact on this 

form is a crime" and subjects the violator to a fine. Compare 

Massachusetts Court System, Confidential Juror Questionnaire 

(November 6, 2017), https://www.mass.gov/doc/confidential-jurorquestionnaire/download [perma.cc/PRMB-QQQ2], and Commonwealth v. 

Cousin, 449 Mass. 809, 813 n.9 (2007), cert. denied, 553 U.S. 

1007 (2008) (quoting form). Indeed, in Cousin, the Supreme 

Judicial Court indicated it may not be practicable to examine a 

juror on whether their nondisclosure -- in that case 

misrepresentation of their criminal records -- was intentional 

or inadvertent, "without risking a violation of their privilege 

against self-incrimination." Cousin, 449 Mass. at 822.
9

any gang activity underlying the incident that was the subject 

of the case" also is error. The juror's judgment was 

unreasonable precisely because she had limited information about 

the facts of this case and she repeatedly ignored the directions 

on the form, the threat of criminal prosecution, and the judge's 

additional instruction explaining the obligation to disclose. 

The juror usurped the role of the judge and counsel, who did 

have the broader perspective of the case.

Once it is established that a juror has knowingly decided 

not to disclose information called for by the juror 

questionnaire or a voir dire question, a defendant has satisfied 

prong one.9

2. Whether defendants could have met their burden by 

showing a correct response would have provided a valid basis for 

a challenge for cause. "The second element -- whether a correct 

response would have given rise to a valid basis for a challenge 

for cause -- depends on whether 'a reasonable judge, armed with 

the information that the dishonest juror failed to disclose and 

the reason behind the juror's dishonesty, would conclude . . . 

that the juror lacked the capacity and the will to decide the 

9 Contrary to the majority's contention, once a defendant 

has demonstrated that a juror failed to disclose responsive 

information within the juror's possession, the defendant is not 

automatically entitled to a new trial. The defendant faces the 

additional hurdle of prong two: showing that a correct response 

would have provided a valid basis for a challenge for cause.
10

case based on the evidence.'" French, 977 F.3d at 124-125, 

quoting Sampson v. United States, 724 F.3d 150, 165-166 (2013).10 

Judges are afforded significant deference as to their findings 

on juror bias. Commonwealth v. McCowen, 458 Mass. 461, 493-494 

(2010) ("Because [t]he determination of a juror's impartiality 

is essentially one of credibility, and therefore largely one of 

demeanor, we give a trial judge's determination of impartiality 

great deference. We will not disturb a judge's findings that a 

juror is unbiased absent a showing that the judge's conclusion 

was clearly erroneous" [quotation and citations omitted]). See 

Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 272 (2002).

The judge found that "accurate disclosure by the juror 

would not have given rise to a viable challenge for cause." She

concluded that "[t]he information the juror would have 

disclosed, if she had answered the question accurately, would 

have been that [Karl], with whom she had an 'off and on'

relationship, had been charged with and convicted of crimes.

Follow-up questions could have elicited little more, since the 

juror knew little more." The judge's conclusion could only 

10 "This inquiry is both context-specific and fact-specific 

and must be based on the 'totality of the circumstances,' 

including: 'the juror's interpersonal relationships; the 

juror's ability to separate her emotions from her duties; the 

similarity between the juror's experiences and important facts 

presented at trial; the scope and severity of the juror's 

dishonesty; and the juror's motive for lying.'" French, 977 

F.3d at 125, quoting Sampson, 724 F.3d at 165-166.
11

conceivably be correct if we engage in an inappropriately 

restrictive reading of McDonough -- that the correct response in 

and of itself would reveal grounds for challenge for cause.11 

11 As the Wisconsin Supreme Court noted in State v. Wyss, 

"[a] narrow reading of the McDonough language ('and then further 

show that a correct response would have provided a valid basis 

for a challenge for cause') suggests that the correct response 

in and of itself must demonstrate the basis for a challenge for 

cause." State v. Wyss, 124 Wis. 2d 681, 728 (1985), overruled 

on other grounds by State v. Poellinger, 153 Wis. 2d 493, 505-

506 (1990). There, the court discussed how the "harshness of 

this approach" is easily demonstrated:

"Take for example a personal injury case where all 

prospective jurors are asked if they have any children. A 

juror who has a child fails to respond, but not only does 

she have a child, but her child had recently been badly 

injured in an automobile accident. If a litigant sought to 

have a new trial ordered once having learned of the juror's 

incorrect answer, that litigant would not prevail if the 

language of the McDonough opinion was applied narrowly. A 

correct answer on voir dire would have been that the 

prospective juror did have a child. However, applying the 

McDonough language literally, this correct answer would not 

prove to be sufficient to provide a basis to strike this 

juror for cause. The correct answer ('yes, I have a 

child') would not in and of itself provide a basis for a 

challenge for cause. However, if further inquiry were 

allowed, it would reveal that not only did she have a 

child, but that that child had been seriously injured in an 

automobile accident and, possibly that she harbored 

antagonistic feelings against drivers of automobiles who 

caused accidents and insurance companies that contested 

benefits. A complete inquiry would have revealed that the 

prospective juror was sufficiently biased to provide a 

valid basis for a challenge for cause."

Id. at 728-729. As the court in Wyss noted, while a "correct 

and/or complete answer" may not provide a basis for a for cause 

challenge itself, it "may well provide the basis for further 

questions and responses that do uncover bias." Id. at 729.
12

The parties should be able to ask natural follow-up questions 

and perform further research on answers a juror gives.

Even assuming the juror was not trying to deceive the judge

and even ignoring that the juror demonstrated she would not 

follow an explicit instruction from the judge, the judge's 

conclusion is clearly erroneous. An accurate disclosure should 

have elicited Karl's name and that he was incarcerated for 

similar crimes (also being a teen in a gang who committed crimes 

of violence against other teens in this same community). A 

basic Internet search would have revealed the details, as would 

a check of Karl's record. See Commonwealth v. Hampton, 457 

Mass. 152, 160 (2010) (prosecutor checked background of 

immediate family member of juror). Information that the juror 

who lived "blocks over" from where the crime occurred and was 

the half-sister of a gang leader of the "most violent gang" in 

Boston who was incarcerated for similar crimes would have been a 

basis for a challenge for cause.12 Commonwealth v. Prunty, 462 

12 Moreover, while it may not have been clear to the judge 

during voir dire how M.O.B. and Lucerne Street Doggz were 

related, the Commonwealth, defense counsel, or one of the four 

defendants could have realized the connection. In the eighteen 

months leading up to the time of the murder at issue here, the 

Lucerne Street Doggz were "the most violent gang in Boston," 

"was the suspect group in 30 gang-involved shootings" in 2006 

(nearly ten percent of all Boston shootings in 2006), was "the 

victim group in 7 gang-involved shootings in 2006," and "by the 

end of May 2007, was the suspect group in another 21 ganginvolved shootings and the victim group in another 6 ganginvolved shootings." Anthony Braga, Hureau, and Papachristos,
13

Mass. 295, 305 (2012), quoting Black's Law Dictionary 261 (9th 

ed. 2009) (challenge for cause is challenge "supported by a 

specified reason, such as bias or prejudice, that would 

disqualify that potential juror"). The information the juror 

chose not to disclose –- regardless of the reason for her 

nondisclosure –- cast a taint on her ability to be impartial 

without calling the integrity of the process into question. 

Indeed, this whole sordid situation arose because Karl, when 

subsequently incarcerated with defendant Ortiz, taunted Ortiz 

with the fact that Karl's sister was on the jury that convicted 

him.13

This conclusion is further bolstered by how the judge 

handled another juror (juror no. 5) during voir dire who omitted 

his own criminal experience from the juror questionnaire. Juror

no. 5 knowingly failed to disclose juvenile adjudications, which 

was discovered when the criminal offender record information

(CORI) of each juror was run. The juror did not disclose his 

juvenile record because he thought it was sealed. The judge was 

sympathetic to the questionnaire putting jurors in a difficult, 

Deterring Gang-Involved Gun Violence: Measuring the Impact of 

Boston's Operation Ceasefire on Street Gang Behavior, 30 J.

Quantitative Criminology 113, 131-132 (March 2014).

13 The judge found that Karl spoke to Ortiz "in a hostile 

manner" and "made some reference to his sister having been a 

juror on Ortiz's trial, and showed a photograph of a woman." 
14

potentially embarrassing position, but concluded that juror 

no. 5 "made a conscious decision not to disclose," and she later

concluded, "I think it was a deliberate decision not to 

disclose. So, I am going to excuse him."14 The judge reached 

this conclusion even though juror no. 5 was relying on being 

told that his juvenile record was sealed. The judge's 

interpretation of the nondisclosure was consistent with case 

law. Cousin, 449 Mass. at 822 (once it was verified that juror 

did not disclose their criminal history, "judge permissibly 

could have drawn the inference that the jurors had concealed 

their criminal histories purposefully, and thus could not be 

expected to be impartial or to follow the court's 

instructions"). Like juror no. 5, the juror central to this 

appeal made "a deliberate decision not to disclose."

Because the defendants demonstrated that the juror "failed 

to answer honestly a material question on voir dire," and also 

14 For juror no. 5, the defendants objected to his excusal,

and the Commonwealth argued about juror no. 5 what the 

defendants now argue about the juror at issue in this case: 

that juror no. 5 should be excused for cause because he did not 

answer the written questionnaire properly, he did not disclose 

the information when the judge asked for it, he made an effort 

to intentionally mislead, and he did not follow instructions. 

See Cousin, 449 Mass. at 814 ("The prosecutor also maintained 

that it was reasonable to assume that falsification of the 

questionnaire was an indication that the juror could not follow 

the rule of law in the charge and could not be fair and 

impartial during deliberations").
15

"show[ed] that a correct response would have provided a valid 

basis for a challenge for cause," Amirault, 399 Mass. at 625, 

quoting McDonough, 464 U.S. at 556, I would allow the 

defendants' motions for a new trial.

3. Juror dishonesty should create a rebuttable presumption 

of unfairness. Although I believe that the defendants met the 

Amirault standard, this case raises the question whether juror 

dishonesty should create a rebuttable presumption of unfairness 

in criminal cases. The right to an impartial jury is "the 

cornerstone of a fair trial; '[t]he failure to grant a defendant 

a fair hearing before an impartial jury violates even minimal 

standards of due process.'" Amirault, 399 Mass. at 624, quoting 

Commonwealth v. Susi, 394 Mass. 784, 786 (1985). Voir dire is 

intended to protect this "right by exposing possible biases, 

both known and unknown, on the part of potential jurors. . . .

The necessity of truthful answers . . . is obvious." McDonough, 

464 U.S. at 554. A juror who subverts the voir dire process by 

failing to disclose information is a grave threat to heart of 

our justice system -- the right to an impartial jury.

A rule that better balances the right to an impartial jury 

with the important need for finality and the practical 

necessities of judicial management, see McDonough, 464 U.S. at 

555-556, is that if a criminal defendant has demonstrated that a 

deliberating juror knowingly did not disclose information called 
16

for during voir dire, it raises a rebuttable presumption 

sufficient to warrant a new trial.15 Once a defendant makes this 

showing, they have established an affront to the integrity of

the process. At that point, the misbehaving juror is the party 

in control of the information, not the defendants, and it simply 

is not fair to put the burden of proof on them. Demonstrating a 

valid basis for a challenge for cause can be difficult. A juror 

may face criminal penalties if they (or their family) admit 

their deception and otherwise have their own motives to conceal 

that they have withheld information to be seated in the jury 

box. See Smith v. Phillips, 455 U.S. 209, 221-222 (1982)

(O'Connor, J., concurring) ("Determining whether a juror is 

biased or has prejudged a case is difficult, partly because the 

juror may have an interest in concealing his own bias and partly 

because the juror may be unaware of it").

15 The majority "note[s] that, although in Amirault the 

court acknowledged that 'in certain exceptional circumstances[,] 

implied bias may be applicable,' it rejected the argument that 

juror bias 'should be presumed as . . . a matter of law'

whenever there is a nondisclosure." Ante at . The Supreme 

Judicial Court rejected the argument "in the circumstances" 

presented in Amirault, where the juror voir dire answer was 

honest (because she genuinely did not remember the information 

she should have disclosed). That is not this case. This juror 

made a deliberate choice to withhold information she was asked 

to disclose. Further, in Amirault the court was discussing 

implied bias, which bypasses the two-part test in Amirault, and 

is not at issue here. See Amirault, 399 Mass. at 628 & n.5.
17

Placing the burden of proof on the Commonwealth also is 

consistent with how we handle exposure of the jury to racial 

prejudice. In that situation, the defendant "bears the initial 

burden of proving, by a preponderance of the evidence, that the 

jury were exposed to statements that infected the deliberative 

process with racially or ethnically charged language or 

stereotypes." McCowen, 458 Mass. at 497. "If the defendant 

meets this burden, the burden then shifts to the Commonwealth to 

show beyond a reasonable doubt that the defendant was not 

prejudiced by the jury's exposure to these statements." Id.

As unpalatable as it is to re-do a murder trial, there 

comes a point where we cannot deny a new trial without damaging 

the integrity of the system. The juror lived within "blocks" of 

this violent murder. She had a family member convicted of 

similar crimes in the same neighborhood who was incarcerated at

the time of voir dire in this case. Her family member was 

reported to be the leader of a gang that was "cool with" M.O.B.

(the gang in which the victim was a member). The theory of the 

Commonwealth's case was gang retaliation against a member of 

M.O.B.16 In the light most favorable to the Commonwealth, the 

16 At the start of voir dire, the Commonwealth explained to 

the judge and defense counsel that the victim was affiliated 

with a gang known as M.O.B. and "some of the defendants were 

affiliated with" a gang known as Wilcock Street or Ten Block 

gang.
18

jury verdicts were based on the theory that the victim came or 

was lured to Wilcock Street and the defendants and others at 

Wilcock Street killed the victim, who was a member of M.O.B., in 

retaliation for him having severely sliced the face of a 

fourteen year old relative of one of the defendants.17 The juror 

knew Karl's experience with the law and yet she made a 

deliberate decision not to disclose this on the jury 

questionnaire. She then "violated" an express instruction from 

the judge "to disclose all responsive information regardless of 

the juror's view of relevance." The juror got caught applying 

her own erroneous relevancy filter to her own criminal record. 

Still, she did not share the criminal history known to her, 

persistently refusing to disclose the information requested. At 

some point, for the integrity of the system, we reach a bridge 

too far. This is a bridge too far for me.

Accordingly, to this extent, I dissent.

17 The judge found that "the evidence presented to the jury 

did not make reference to any gang affiliation of anyone." This 

finding was clearly erroneous. At trial, there was evidence 

that someone from M.O.B. cut the face of the cousin of defendant 

Ortiz and that that person was the victim, and there were 

numerous references to the "MOB" "group," "member[s]," "crowd,"

"associates," and even once "the MOB gang or group" and an 

explanation that M.O.B. stood for "Money Over Bitches," which 

could hardly be mistaken for a fraternal organization. Our 

earlier decision in these matters referred to testimony about 

the M.O.B. gang. See Commonwealth v. Mitchell, 89 Mass. App. 

Ct. 13, 15-16, cert. denied, 580 U.S. 899 (2016).