[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bates, Slip Opinion No. 2020-Ohio-634.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                           SLIP OPINION NO. 2020-OHIO-634
              THE STATE OF OHIO, APPELLEE, v. BATES, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Bates, Slip Opinion No. 2020-Ohio-634.]
Criminal Law—Aggravated murder—Ineffective assistance of trial counsel—
        Empanelment of biased juror—Convictions and death sentence reversed
        and cause remanded.
 (No. 2016-1783—Submitted February 19, 2019—Decided February 27, 2020.)
 APPEAL from the Court of Common Pleas of Hamilton County, No. B1501811.
                                   __________________
        DONNELLY, J.
        {¶ 1} Appellant, Glen E. Bates, appeals as of right from his aggravated-
murder and other felony convictions and the death sentence imposed by the
Hamilton County Court of Common Pleas. He has presented 17 propositions of
law for our consideration, but the dispositive issue presented is whether he was
deprived of his constitutional right to the effective assistance of counsel when
defense counsel, during voir dire, failed to question or strike a racially biased juror.
                             SUPREME COURT OF OHIO




       {¶ 2} We hold that defense counsel’s performance during voir dire was
objectively unreasonable and that counsel’s deficient performance prejudiced Bates
by allowing the empaneling of a biased juror in violation of Bates’s Sixth
Amendment right to effective assistance of counsel. We therefore reverse Bates’s
convictions and sentence and remand this case to the trial court for a new trial.
                         I. FACTUAL BACKGROUND
       {¶ 3} Glenara Bates was born to Andrea Bradley and Glen Bates in January
2013 and immediately placed in foster care in the same home where her four older
half siblings were already staying. In September 2013, a court ordered that the five
children be returned to Bradley. According to Glenara’s foster mother, Glenara
weighed almost 20 pounds at that time.
       {¶ 4} In December 2014, Bradley took Glenara to Cincinnati Children’s
Hospital (“CCH”), where Glenara was admitted for poor weight gain, possible
malnutrition, and failure to meet developmental milestones. At this time, Glenara
was about 23 months old and weighed 17 pounds, 7 ounces.
       {¶ 5} Dr. Brian Herbst, a CCH physician, testified that when she was
admitted, Glenara could “stand supported but was unable to walk.” After ruling
out other conditions, Dr. Herbst diagnosed Glenara with malnourishment caused by
“not taking in enough calories.” He found no other signs of physical abuse.
Glenara gained weight as she was fed at the hospital, and Bradley was counseled
about the importance of proper nutrition. Glenara was released into Bradley’s care
approximately ten days after she had been admitted to CCH.
       {¶ 6} On March 29, 2015, Bradley arrived at the CCH emergency
department holding Glenara, who was unresponsive. The physician who examined
her, Dr. Richard Strait, testified that Glenara “had no signs of life,” was cold and
pale, had “multiple old scars,” had “breakdown of the skin in multiple areas,” “was
totally emaciated,” and “looked very small for what was her stated age.” Despite




                                          2
                                January Term, 2020




many efforts to revive her, Glenara was pronounced dead at 1:01 p.m. At the time
of her death, Glenara weighed less than 14 pounds.
       {¶ 7} Dr. Strait observed that Glenara had a scar on her forehead; broken
and missing teeth and associated trauma to her gums; bruises from head to toe;
loop-shaped scarring on her legs; ulcerated lesions on her fingers, buttocks, and
back; and bite marks on her body. Based on Glenara’s condition, Dr. Strait
suspected severe abuse.
       {¶ 8} Glenara’s half sister, ten-year-old J.F., testified at trial. She explained
that after the children were reunited with Bradley, life “was pretty good” for
Glenara for a few months until Bradley and Bates “did a few things” to Glenara
because they did not like her. She explained that they made Glenara sleep on the
bathroom floor and did not feed her well and that Bradley sometimes beat Glenara
with a belt. She also said that she saw Bates bite Glenara and that Bates seemed
angry whenever he did that.
       {¶ 9} J.F. testified that on March 28, 2015, the day before Glenara died, she
saw Bates “bang [Glenara’s] head against the wall” in the downstairs hallway of
the house where they were living at the time. She said that something had happened
to make Bates angry and that he held Glenara by the legs and “swung her” against
the wall. According to J.F., Glenara cried at first and then suddenly became silent.
       {¶ 10} Hamilton County Deputy Coroner Dr. Jennifer Schott, who
performed Glenara’s autopsy, determined to a reasonable degree of medical
certainty that Glenara’s death was caused by “Battered Child Syndrome with acute
and chronic intracranial hemorrhages and starvation.” She detailed Glenara’s
extensive injuries for the jury through testimony and photographic evidence. She
identified a number of conditions that had been caused by a combination of
“chronic stress” from malnutrition that reduced Glenara’s chances of fighting off
infections, poor hygiene, and general starvation.




                                          3
                              SUPREME COURT OF OHIO




        {¶ 11} Dr. Schott testified extensively about subdural and subarachnoid
hemorrhages caused by blunt-force trauma, which were fatal injuries to Glenara’s
head.    She explained that injuries of this type are usually the result of
“nonaccidental trauma” and are “markers of the underlying injury of the brain
itself,” which leads to death. Dr. Schott opined that the subdural and subarachnoid
hemorrhages were more consistent with Glenara being held by her legs and swung
against a wall or doorframe, as opposed to being dropped and landing on her head.
She explained that it is rare for a short linear fall to result in a subdural hemorrhage.
Instead, the type of injuries Glenara had are usually caused by “rotational
acceleration” that occurs when a child is shaken or swung against an object.
        {¶ 12} The autopsy also revealed a combination of lacerations, abrasions,
and contusions to Glenara’s head, with Dr. Schott identifying for the jury visible
contusions at various stages of healing “all the way around the head,” including
“areas that are not typically contused in two-year-olds.” According to Dr. Schott,
the bruising and abrasions indicated that Glenara had received many blows to the
head, though she could not state with certainty how many. She told the jury that
“the sheer number of injuries in multiple different planes around the head is very
suspicious for child abuse.” Dr. Schott also identified “numerous, countless, [and]
overlapping” scars all over Glenara’s body as well as scar patterns consistent with
bite marks and blunt-force trauma caused by impacts from a “very, very thin” item,
such as a belt. The autopsy indicated that Glenara had previously suffered a
fractured rib bone that was starting to heal; Dr. Schott stated that the location of the
fractured bone made it “highly suspicious for child abuse.”
        {¶ 13} Shortly after Glenara was pronounced dead, CCH notified
Cincinnati police that there was evidence that Glenara had been abused. Detective
Bill Hilbert viewed Glenara’s body at the hospital that day and testified that because
of her emaciated condition, his “first impression was [that he] was looking at a six-




                                           4
                               January Term, 2020




month-old baby.” Police brought Bradley and Bates to the police station to be
questioned separately and interviewed Bradley regarding Glenara’s injuries.
        {¶ 14} That evening, Detective Hilbert and Detective Eric Karaguleff
conducted the first of three interviews with Bates after he voluntarily waived his
Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). Bates acknowledged that he had been staying with Bradley and the
children for the previous week or two, including on March 28. He said that on
March 29, he woke up around noon and that while he was still in bed, Bradley told
him that Glenara would not wake up. He then told Bradley to take Glenara to the
hospital.
        {¶ 15} When asked about Glenara’s specific injuries, Bates quickly
admitted to noticing bruises on her legs and said that he had seen Bradley “whoop”
Glenara with a belt before but never with the buckle end. He denied having been
home when Glenara was cut on her forehead, and he denied noticing the bruise
covering the left side of her head. He told the detectives that Glenara had burned
her thumb when she grabbed some hot ravioli and that the swelling and cuts on her
feet happened when she smashed her feet into a door “or something.” At one point,
Bates said that he “ain’t laid no fingers on her” and that Bradley caused all the
injuries.
        {¶ 16} Bates initially denied causing (or even noticing) bite marks on
Glenara’s torso and limbs, but after one of the detectives told him that dental
impressions would indicate who bit her, he admitted that he had bitten Glenara two
or three times. Bates said that he sometimes would play “doggy gonna get you,”
which he said involved grabbing Glenara with his teeth “like a dog” and then
shaking her. He told the officers that he probably bit her too hard but that he was
just playing and never intentionally meant to bite her hard enough to leave a mark.




                                        5
                              SUPREME COURT OF OHIO




        {¶ 17} Bates eventually acknowledged the significant bruising on the left
side of Glenara’s head, but he still denied causing the injury or seeing Bradley do
anything that would have caused it.
        {¶ 18} Less than one hour after the first interview ended, the detectives
conducted a second interview. They asked Bates whether it was possible that
Glenara had fallen while he was holding her up by her feet or while she was hanging
from a ledge or a doorframe. Bates denied that either scenario had occurred, saying
that “[t]he only thing I can think is * * * when she was sitting in the chair, like when
I set her in the chair she fell.” And he said that Glenara was “[j]ust normal” after
she had fallen off the chair and hit her head. Later during the second interview,
Bates changed course and admitted to holding Glenara “up by her feet and
swing[ing] her and stuff,” but he continued to deny that she had been hurt when he
did that. He also continued to deny having any knowledge of how Glenara had
injured the left side of her head and insisted that he would have remembered if he
had dropped her.
        {¶ 19} Detective Marcus McNeil conducted Bates’s third interview. Bates
initially repeated what he had told Detectives Hilbert and Karaguleff, again denying
that he had dropped Glenara on her head. But halfway through the interview, he
changed course again and told Detective McNeil that as Bradley had said during
her police interview, he “was holding her up and she fell,” landing on her head. He
explained that he “was holding her by her legs, up in the air like this, just playing
with her, wee, and she, actually she had on shoes and she just came right out of the
shoes.” According to Bates, this incident happened about a week earlier and
Glenara was fine afterward and was “drinking, eating, playing. Doing what she
always do, really just sitting there looking at everybody.” Bates also acknowledged
that on March 28, Glenara had been acting tired and sleepy all day, but he still
denied that she had been injured that day.




                                           6
                                      January Term, 2020




               II. PROCEDURAL HISTORY AND SENTENCING
         {¶ 20} A grand jury indicted Bates on one count of aggravated murder of a
child under the age of 13 (R.C. 2903.01(C)), one count of child endangering (R.C.
2919.22(B)(1)), and one count of noncapital felony murder (R.C. 2903.02(B))
based on child endangering.               The aggravated-murder count included one
specification under R.C. 2929.04(A)(9), which alleged that in committing the
murder of a child under the age of 13, Bates either was the principal offender or
committed the aggravated murder with prior calculation and design.
         {¶ 21} Bates pleaded not guilty to all counts and the capital specification,
and the case was tried to a jury. The jury returned guilty verdicts on all counts and
the specification.
         {¶ 22} After a mitigation hearing, the jury unanimously recommended a
sentence of death, and the court accepted the recommendation and imposed the
death sentence. The court also sentenced Bates to eight years of imprisonment for
his child-endangering conviction and to a prison term of 15 years to life for the
felony-murder conviction.           The court ordered Bates to serve the noncapital
sentences consecutively to each other but concurrently with the death sentence.
                                       III. ANALYSIS
         {¶ 23} In his 17th proposition of law, Bates contends that he was denied his
constitutional right to effective assistance of counsel when defense counsel failed
to question and strike a juror who made racially biased statements on her juror
questionnaire and that counsel’s constitutionally deficient performance denied him
a fair and impartial jury.1

1. In his 15th proposition of law, Bates contends that he was denied his constitutional right to an
impartial jury under the Sixth and Fourteenth Amendments, in part because certain seated jurors
expressed potential racial bias during voir dire. Because we reverse and remand based on Bates’s
ineffective-assistance-of counsel claim with respect to one of those jurors, it is unnecessary for us
to reach a second constitutional challenge regarding juror bias.




                                                 7
                              SUPREME COURT OF OHIO




                           A. Applicable legal standards
        {¶ 24} To prevail on his ineffective-assistance claims, Bates must
demonstrate both that “counsel’s representation fell below an objective standard of
reasonableness” and that counsel’s deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To establish deficient performance, Bates must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [him]
by the Sixth Amendment.” Id. at 687. And to establish prejudice, he must show
“that counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose
result is reliable.” Id.
        {¶ 25} To satisfy Strickland’s first prong, Bates must demonstrate that
defense counsel’s performance was objectively unreasonable in light of counsel’s
failure to question or strike the jurors at issue. Hughes v. United States, 258 F.3d
453, 461 (6th Cir.2001). To show prejudice under Strickland in this instance, Bates
“ ‘must show that [a] juror was actually biased against him.’ ” (Emphasis added in
Mundt.) State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828,
¶ 67, quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir.2001). “Actual bias is
‘bias in fact’—the existence of a state of mind that leads to an inference that the
person will not act with entire impartiality.” United States v. Torres, 128 F.3d 38,
43 (2d Cir.1997), citing United States v. Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 81
L.Ed. 78 (1936). In sum, Bates must prove that at least one of the jurors at his trial,
because of the juror’s partiality or biases, was not “capable and willing to decide
the case solely on the evidence” before that juror. Smith v. Phillips, 455 U.S. 209,
217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
        {¶ 26} Actual bias can be found from a juror’s express admission or from
circumstantial evidence of the juror’s biased attitudes. Hughes at 459.              For
example, courts have found actual bias when a juror unequivocally stated that she
could not be fair due to law-enforcement bias, id. at 459-460, when a juror had a




                                           8
                                   January Term, 2020




fixed opinion of the defendant’s guilt based on pretrial publicity, Irvin v. Dowd,
366 U.S. 717, 727-728, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), or when a juror
expressed views on the death penalty that “would ‘prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and his
oath,’ ” Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492
(1992), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581
(1980).
                                     B. Juror No. 31
                                     1. Relevant facts
          {¶ 27} One of the questions on the written juror questionnaire asked, “Is
there any racial or ethnic group that you do not feel comfortable being around?”
Juror No. 31, a Caucasian woman, answered “yes” and in the space allotted for
explanation wrote: “Sometimes black people.” Another question started with the
statement, “Some races and/or ethnic groups tend to be more violent than others,”
then asked jurors to choose among the options of “strongly agree,” “agree,”
“strongly disagree,” “disagree,” and “no opinion.” Juror No. 31 indicated that she
strongly agreed and then wrote “Blacks” in the space allotted for explanation.
          {¶ 28} During voir dire, the trial court gave counsel for the state and for
Bates the opportunity to question groups of 12 prospective jurors at a time. Defense
counsel asked one of the groups of 12 the following questions:


                  Now, one question or one area of inquiry that we find
          necessary sometimes to ask is about an individual’s race. * * * [I]t’s
          important * * * for a defendant’s rights, to ensure that he gets a fair
          trial, but, really, also that the State of Ohio gets a fair trial. Okay?
                  Mr. Bates is an African American gentleman. * * * Does
          anybody believe that Mr. Bates’ race—in other words, that he is an
          African American—should play any role in this trial whatsoever?




                                              9
                                 SUPREME COURT OF OHIO




                 ***
                 Everyone is shaking their head. And that’s good.
                 Anybody at all? Again, there is no wrong answer. Everyone
        has personal biases, beliefs. Okay? It’s natural. If that plays a role
        in any way, shape or form please let us know. If there is any issue
        or problem, raise your hand. Please let us know. That is critically
        important.


        {¶ 29} But juror No. 31 was not part of that group of 12 prospective jurors
and in fact was not even in the courtroom when defense counsel asked the foregoing
questions.2 In fact, juror No. 31 was never questioned about Bates’s race even
considering her responses on the juror questionnaire. Defense counsel did not
challenge any jurors for cause. Despite having an available peremptory challenge,
defense counsel failed to strike juror No. 31 and allowed her to be empaneled.
                                        2. Discussion
        {¶ 30} “One touchstone of a fair trial is an impartial trier of fact—‘a jury
capable and willing to decide the case solely on the evidence before it.’ ”
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845,
78 L.Ed.2d 663 (1984), quoting Smith, 455 U.S. at 217, 102 S.Ct. 940, 71 L.Ed.2d
78.   “Jury selection is the primary means by which a court may enforce a
defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice
or predisposition about the defendant’s culpability.” (Citations omitted.) Gomez
v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989).
“Without an adequate voir dire the trial judge’s responsibility to remove
prospective jurors who will not be able impartially to follow the court’s instructions



2. The trial transcript clearly reveals that juror No. 31 had been removed to another room in the
courthouse after counsel questioned her group of 12.




                                               10
                                January Term, 2020




and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United States, 451
U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).
       {¶ 31} The adequacy of voir dire thus directly affects the ability of the trial
judge to be a diligent gatekeeper to protect the defendant’s constitutional rights.
Despite the wide latitude we typically afford defense counsel in determining how
to best conduct voir dire, State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 218, we have held that counsel performs deficiently under Strickland
when they fail to question a juror about racially biased comments made on a
questionnaire, State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d
1023, ¶ 212. As in this case, the juror questionnaire in Pickens asked, “Is there any
racial or ethnic group that you do not feel comfortable being around?” The Pickens
juror answered “yes” and wrote: “Young black men with their pants down to their
knees.” Id. at ¶ 209. The same juror answered “yes” to the question, “Have you
ever had a negative or frightening experience with a person of another race?” The
juror wrote: “At a gas station—black man appeared—‘Give me your wallet or die
right here.’ ” Id. Although the prosecutor in Pickens questioned the juror about
the robbery he had mentioned, no one asked the juror about his other comments,
including his comment about young black men. Id. at ¶ 210. Because “[t]here
appear[ed] to be no discernable reason * * * why counsel would not question [the
juror] about his racially biased comments,” we concluded that counsel were
deficient. Id. at ¶ 212.
       {¶ 32} Here, too, “[t]here appears to be no discernable reason” why defense
counsel would not question juror No. 31 about her comments to determine whether
she could be impartial or attempt to strike juror No. 31 for cause or by using one of
the available peremptory challenges. Id. Defense counsel did ask a general
question to juror No. 31’s group of 12 regarding whether anyone was unable to be
“fair and impartial,” but no one responded to that very general question and it was




                                         11
                             SUPREME COURT OF OHIO




insufficient under the circumstances. We hold, therefore, that counsel’s voir dire
of juror No. 31 was objectively unreasonable under Strickland.
       {¶ 33} “To maintain a claim that a biased juror prejudiced him, * * * [a
defendant] must show that the juror was actually biased against him.” Goeders v.
Hundley, 59 F.3d 73, 75 (8th Cir.1995), citing Smith, 455 U.S. at 215, 102 S.Ct.
940, 71 L.Ed.2d 78. Actual bias can be revealed through a prospective juror’s
express admission, but “more frequently, jurors are reluctant to admit actual bias”
and it must be exposed through circumstantial evidence. Miller v. Webb, 385 F.3d
666, 673 (6th Cir.2004).
       {¶ 34} Although we concluded that counsel had performed deficiently in
Pickens, we determined that there was no evidence that the juror was actually
biased against Pickens himself. 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d
1023, at ¶ 213. We stated that the juror’s “comment about ‘[y]oung black men with
their pants down to their knees’ [did] not necessarily reflect bias against Pickens
personally.” Id. We also stated that “[w]hether failure to strike [the juror] from the
panel was prejudicial [was] speculative because it [was] possible that he might have
been rehabilitated under further questioning.” Id.
       {¶ 35} Today, we overrule Pickens to the extent that it held that actual
racial bias must be shown by demonstrating bias against a defendant personally.
Connecting a juror’s potential bias with the defendant personally may make sense
for cases involving a juror’s personal connection with the case, such as the juror
issues present in the cases cited in Pickens. See Mundt, 115 Ohio St.3d 22, 2007-
Ohio-4836, 873 N.E.2d 828, at ¶ 49-70 (challenging a juror who had prior
knowledge of the case from her sister and expressed sensitivity to crimes involving
the abuse and rape of children), and Miller v. Francis, 269 F.3d at 611-613, 616-
620 (challenging a juror who had prior knowledge of the case and was employed
as a county caseworker for the victim’s mother). But actual racial bias may be
present without a demonstration of bias against the defendant personally if the




                                         12
                                 January Term, 2020




juror’s statement rises to a level of generality about a racial or ethnic group that
indicates the juror’s inability to be impartial in the particular case before him or
her.
        {¶ 36} The dissenting opinion accuses the majority of holding that potential
juror bias is sufficient to constitute a constitutional violation. That accusation is
without basis. To be sure, the law requires actual bias in order to presume prejudice
under Strickland.     And if a juror provides some indications of impartiality
notwithstanding statements that suggest bias, then whether that juror is actually
biased and the defendant prejudiced may be a closer question. See Miller v. Webb,
385 F.3d at 674-675; Hughes, 258 F.3d at 460; Mundt at ¶ 71-76. But that is not
the case before us. Here, we have a juror’s admission of bias with no reassurance
of impartiality. Speculation that defense counsel, the prosecution, or the trial judge
could have sought such reassurance of impartiality from a juror who admitted bias
cannot nullify the prejudicial impact of that juror’s participation in the trial.
        {¶ 37} Here, juror No. 31 expressed her view, under oath on the
questionnaire, that “Blacks” as a group are more violent than other races or ethnic
groups. She also stated that she “[s]ometimes” does not feel comfortable being
around “black people.” And juror No. 31’s silence in response to a general group
question about fairness is not sufficient to provide an assurance of impartiality. See
Hughes at 461. Counsel’s failure to ask a single individual question of juror No.
31 to establish that she could be impartial and counsel’s failure to attempt to strike
that juror permitted a juror who expressly admitted her racially biased view that
black people—including Bates—are inherently more violent than other people to
sit on the jury that determined his fate. Under these facts, we hold that juror No.
31’s statements demonstrate her actual bias against Bates. “Discrimination on the
basis of race, odious in all aspects, is especially pernicious in the administration of
justice.” Rose v. Mitchell, 443 U.S. 545, 555, 99 S.Ct. 2993, 61 L.Ed.2d 739
(1979). Racial bias “casts doubt on the integrity of the judicial process” and




                                           13
                             SUPREME COURT OF OHIO




“impairs the confidence of the public in the administration of justice.” Id. at 556.
The presence of racial bias in a capital case is particularly troubling.
       {¶ 38} In a capital-case sentencing hearing, the jury is called upon to make
“a ‘highly subjective, “unique, individualized judgment” ’ ” regarding the
punishment that the defendant receives. Turner v. Murray, 476 U.S. 28, 33-34, 106
S.Ct. 1683, 90 L.Ed.2d (1986) (plurality opinion), quoting Caldwell v. Mississippi,
472 U.S. 320, 340, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), fn. 7, quoting Zant v.
Stephens, 462 U.S. 862, 900, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (Rehnquist,
J., concurring in judgment). Because of the discretion entrusted to the jury in a
sentencing hearing in a capital case, “there is a unique opportunity for racial
prejudice to operate but remain undetected.” Id. at 35. That is precisely what
happened here. Unearthing racial prejudice when it persists in a capital trial is
especially important because jury unanimity is required to impose the death
sentence, R.C. 2929.03(D)(2), and a single juror’s bias can make the difference
between life and death.
       {¶ 39} Because a defendant may demonstrate actual racial bias by showing
that a juror has expressed a bias against a racial group to which the defendant
belongs that indicates that the juror is unable to be impartial in the particular case
before him or her, we hold that Bates has demonstrated that defense counsel’s
failure to question or strike juror No. 31 and decision to waive the defense’s last
peremptory challenge resulted in the empanelment of an actually biased juror. The
prejudice to Bates is apparent—as a result of counsel’s objectively unreasonable
performance during voir dire of juror No. 31, an actually biased juror sat on the jury
and, therefore, Bates was denied his constitutional right to be tried before an
impartial jury. The threat that a “powerful racial stereotype—that of black men as
‘violence prone,’ ” Buck v. Davis, __ U.S. __, 137 S.Ct. 759, 776, 197 L.Ed.2d 1
(2017), quoting Turner at 35—infected the jury’s deliberations as a result of juror




                                          14
                                      January Term, 2020




No. 31’s bias is unacceptable.3               We therefore hold that defense counsel’s
representation was constitutionally ineffective as to juror No. 31.
                                      IV. CONCLUSION
         {¶ 40} Because the empanelment of juror No. 31 denied Bates an impartial
jury, we sustain Bates’s 17th proposition of law as to that juror. After thoroughly
reviewing the record, we are compelled to conclude that Bates was deprived of his
right to effective counsel when defense counsel failed to inquire into the expressed
bias of juror No. 31 on voir dire or strike the juror and, therefore, his convictions
and death sentence cannot stand. In light of this conclusion, we need not reach
Bates’s remaining propositions of law.
         {¶ 41} We reverse the judgments of conviction and sentence of death
entered against Glen E. Bates and remand this case to the Hamilton County Court
of Common Pleas for a new trial.
                                                                               Judgment reversed
                                                                            and cause remanded.
         O’CONNOR, C.J., and FRENCH and STEWART, JJ., concur.
         FRENCH, J., concurs, with an opinion joined by STEWART, J.
         FISCHER, J., concurs in judgment only, with an opinion.
         STEWART, J., concurs, with an opinion.
         DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
                                      _________________




3. The dissenting opinion states that “[t]here is nothing in the record from which to conclude that
juror No. 31 * * * was unable to render a fair and impartial verdict in this case.” Dissenting opinion
at ¶ 91. To the contrary, juror No. 31 stated that she believes black people are more violent than
other races or ethnic groups. That is an express admission of racial bias that reveals a predisposition
about a black person’s propensity for violence. Ignoring the weight of this statement defies
explanation.




                                                  15
                             SUPREME COURT OF OHIO




       FRENCH, J., concurring.
       {¶ 42} I agree with the majority that the defense counsel’s performance
during voir dire was objectively unreasonable and that counsel’s deficient
performance caused the empaneling of a biased juror in violation of Glen Bates’s
Sixth Amendment right to effective assistance of counsel. I also agree that no
further prejudice analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), is required because, in my view, a juror’s actual bias
deprived Bates of his constitutional right to be tried before an impartial jury. See
Hughes v. United States, 258 F.3d 453, 463 (6th Cir.2001) (the presence of a biased
juror cannot be harmless; prejudice under Strickland is presumed). I, therefore, join
the majority opinion’s analysis and disposition.
       {¶ 43} I write separately, however, to address the dissent’s unnecessary
recounting of the torture the young victim suffered before she died. A person of
ordinary conscience can hardly believe that such cruelty exists. It causes anger and
passion and, if allowed, a rush to judge the person accused of committing such
heinous acts. Our job, in the face of those facts, is to ensure that all constitutional
guarantees were met. It is easy to grant those protections to an accused who appears
to be innocent. It is also easy to grant those protections when the facts at issue are
unemotional and do not cause our passions to rise. But here, facing the possibility
that a prospective juror may respond to accusations of such cruelty by prejudging a
defendant because of his race, we—and defense counsel, the prosecution, and the
trial court—must be extra vigilant. The dissent does a disservice to principles of
equal justice to the extent it suggests otherwise.
       STEWART, J., concurs in the foregoing opinion.
                                _________________
       FISCHER, J., concurring in judgment only.
       {¶ 44} I respectfully concur in judgment only.




                                          16
                                 January Term, 2020




        {¶ 45} In reaching its conclusion to reverse the convictions and death
sentence of appellant, Glen E. Bates, the majority opinion’s analysis reexamines
State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, and
overrules a portion of that decision. While I understand the concerns underlying
the majority’s analysis, I conclude that based on the particular facts present in this
case—which differ from the facts in Pickens in a highly and saliently important
way—it should be resolved without overruling the holding in Pickens.
        {¶ 46} In Pickens, the juror at issue had answered questions on the written
juror questionnaire in a manner that indicated that he may have been biased against
African Americans. Id. at ¶ 209. To that extent, the relevant juror in Pickens and
juror No. 31 in this case are similar. In addition, in both cases, neither the
defendant’s counsel nor the trial court asked any questions about the answers the
juror had given on the questionnaire, see id. at ¶ 212.
        {¶ 47} Nevertheless, Pickens is distinguishable for several specific reasons.
In Pickens, the juror had answered a different question on the juror questionnaire
by stating that he believed that “racial discrimination against African-Americans in
our society” is a “very serious problem.” Id. at ¶ 209. The juror in this case made
no comparable statement. Moreover, the state in Pickens questioned the juror about
one of the juror’s answers that indicated his possible racial bias. Id. at ¶ 210. The
state did not do so in the case at bar.
        {¶ 48} We give great latitude to defense counsel to try their case, especially
in the area of juror selection. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-
3426, 892 N.E.2d 864, ¶ 218; State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179,
920 N.E.2d 104, ¶ 206. And we should. In Pickens, the defendant’s trial counsel
listened to the state’s questioning of the juror who was potentially biased. Pickens’s
counsel could have reached a conclusion that based on the juror’s answers to the
state’s questions and based on the juror’s concession that racial discrimination is a
“very serious” societal problem, the defense would “stick” with that juror and allow




                                          17
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him to be seated on the jury. Thus, in Pickens, defense counsel reasonably could
have decided not to use a peremptory challenge regarding that juror, despite having
peremptory challenges remaining. Notably, there were indications in that case’s
record that that juror may not have been actually biased against the defendant,
causing this court to hold that the defendant had failed to show prejudice under
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).
          {¶ 49} In the case at hand—most importantly and unlike Pickens—the only
questioning of juror No. 31 that is even remotely relevant to this issue consisted of
a generic question to her group of jurors about their ability to be fair and impartial.
Such generic questioning is unhelpful in obtaining information about a juror’s
possible bias. See Morgan v. Illinois, 504 U.S. 719, 734-735, 112 S.Ct. 2222, 119
L.Ed.2d 492 (1992) (rejecting the argument that general inquiries of this type may
be used to detect jurors who have views that prevent or substantially impair them
from carrying out their duties). Neither the state nor defense counsel nor the trial
court specifically questioned juror No. 31 about her answers to the questions on the
questionnaire that indicated her possible (or likely) racial bias. And then, despite
the fact that the only evidence in the record shows this racial bias by this juror
(which was antithetical to Bates as a member of the group the juror was biased
against), defense counsel failed to either challenge juror No. 31 for cause or use a
peremptory challenge, even though one was available.
          {¶ 50} This case thus has a distinct fact pattern that was not present in
Pickens. In this case, no one questioned the juror or sought more information about
the racially biased statements, leaving the record in this case showing only (1)
statements indicating that the juror was biased against the defendant’s race and (2)
defense counsel’s failure to challenge juror No. 31 by not using an available
peremptory challenge or making any challenge for cause. The combining of these
two material facts on this record separate this case from our decision in Pickens.




                                          18
                                 January Term, 2020




The unique situation and fact combination of the only evidence in this record
revealing racial bias against a defendant who is of that race or color, specifically
coupled with no effort by trial counsel to challenge that juror in any way and the
lack of any specific questioning by the state or the trial court, leaves this court with
a record that demonstrates that defense counsel provided ineffective assistance in
this matter.
        {¶ 51} In the end, when a juror makes statements that show a distinct bias
against the race or color of the defendant and there is no specific questioning of that
juror by anyone in the courtroom, a reviewing court has before it a record in which
the only evidence and reasonable inference that can be drawn in the case is that the
juror was actually biased against that specific person, the defendant. Under such
facts, if the defendant’s trial counsel then permits that juror to be seated on the jury
without using an available peremptory challenge or attempting a challenge for
cause, it is ineffective assistance of counsel.
        {¶ 52} Some may argue that this creates a problem of possible
“sandbagging” by defense counsel. What I mean by “sandbagging” is the potential
for a defendant’s trial counsel to purposely not question a juror who has made a
racially biased statement—which was directed to the race of the defendant in the
case—and have a point to appeal in the record of the case (which might ultimately
cause an appellate court to reverse the defendant’s eventual conviction) before the
defendant’s actual trial even begins.
        {¶ 53} Such an argument is, in reality, a strawman or a red herring. For as
seen in Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 210,
and in other cases, see, e.g., State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-
4751, 23 N.E.3d 1096, ¶ 232-234, the state or the trial court may, even if defense
counsel does not, question a juror who has indicated that the juror may be biased
against that defendant’s race. Assuming arguendo that the state has done so and
that the state’s questioning has potentially “rehabilitated” that juror, defense




                                          19
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counsel may then decide whether to refrain from asking any questions of that juror,
as happened in Pickens, or defense counsel may ask questions in an attempt to
refute or clarify the rehabilitation. (Moreover, defense counsel may always initiate
the questioning of such a juror on defense counsel’s own initiative.) Thus, the fear
of so-called sandbagging is not a true problem in reality.
       {¶ 54} For these reasons, based on the unique facts involved and the
situation that occurred in this case, I respectfully concur only in the court’s
judgment.
                                _________________
       STEWART, J., concurring.
       {¶ 55} I join the majority opinion but write separately because, in addition
to holding that appellant, Glen Bates, was denied his constitutional right to effective
assistance of counsel when defense counsel failed to question and strike the juror
who made racially biased statements on her juror questionnaire, I would hold that
Bates was denied his constitutional right to effective assistance of counsel when
defense counsel failed to question and strike juror No. 10 who, because she was a
mother of three daughters and a grandmother of an infant, expressed doubts about
whether she could be impartial.
       {¶ 56} During general voir dire, one of the prosecutors informed the
prospective jurors that they would be required to consider trial evidence that was
“not pleasant,” such as the coroner’s testimony and autopsy photographs. He then
asked, “Does that cause anybody any problems that would make them say I can’t
do this, I can’t serve?”
       {¶ 57} In response, the following colloquy occurred:


               [Juror No. 10]: I’m not sure if I can at this point.
               [Prosecutor]: Okay. Juror Number 10; is that right?
               [Juror No. 10]: (Nodding head.)




                                          20
                                  January Term, 2020




                [Prosecutor]: You know what, again, this is not going to be
        pleasant. And I’m not suggesting that it should be. I need you to
        kind of dig deep inside yourself. You know, this service that we’re
        asking you to perform, this jury duty is difficult. And sometimes
        the unpleasantness is kind of just part of—it’s unavoidable. It’s part
        of [what] you as jurors have to see and hear. It’s not what you see
        in your normal lives or in your neighborhoods or in your homes. But
        somebody has got to decide this case. What do you think? Do you
        think you can—
                [Juror No. 10]:     As a mother of three daughters and a
        grandmother of an infant daughter, I don’t know that I could be as
        fair as one would be from my life situation.
                [Prosecutor]: Okay. I appreciate it. Let’s let that sit for a
        second.
                [Juror No. 10]: Just so you know.


(Emphasis added.)
        {¶ 58} Defense counsel did not follow up with juror No. 10 or attempt to
remove her either for cause or by peremptory strike.            Later, after providing
additional details about the case, the prosecutor asked the prospective jurors, “Is
there anyone on this panel who has any reason to believe they can’t be a fair and
impartial juror?” No prospective juror—including juror No. 10—responded to that
question, and juror No. 10 was eventually seated on the jury.
        {¶ 59} “Among the most essential responsibilities of defense counsel is to
protect his client’s constitutional right to a fair and impartial jury by using voir dire
to identify and ferret out jurors who are biased against the defense.” Miller v.
Francis, 269 F.3d 609, 615 (6th Cir.2001). This court normally is reluctant to
second-guess an attorney’s conduct during voir dire and evaluates the conduct as a




                                           21
                              SUPREME COURT OF OHIO




matter of trial strategy. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942,
13 N.E.3d 1051, ¶ 153. Indeed, “[a] strategic decision cannot be the basis for a
claim of ineffective assistance unless counsel’s decision is shown to be so ill-
chosen that it permeates the entire trial with obvious unfairness.” Hughes v. United
States, 258 F.3d 453, 457 (6th Cir.2001).
       {¶ 60} In Hughes, the United States Court of Appeals for the Sixth Circuit
considered a claim that defense counsel provided ineffective assistance when he
failed to remove a juror on the basis of alleged bias. During voir dire, the juror had
indicated that she had a nephew and close friends on the police force. When the
trial judge asked whether those relationships would prevent her from being fair, the
juror stated: “I don’t think I could be fair.” Id. at 456. Neither the court nor defense
counsel attempted to rehabilitate the juror or to obtain an express assurance from
her that she could be impartial. Id. at 459-461. The Sixth Circuit held that
“counsel’s failure to respond” to the juror’s express admission of bias “was
objectively unreasonable” under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Hughes at 462.
       {¶ 61} As in Hughes, juror No. 10’s uncertainty over whether she could be
fair was left unexplored by defense counsel, who never asked a single question of
juror No. 10. Her statement that she did not “know that [she] could be as fair” due
to her life situation clearly communicated her doubt about her ability to be
impartial. It revealed “a state of mind that leads to an inference that [she could] not
act with entire impartiality.” United States v. Torres, 128 F.3d 38, 43 (2d Cir.1997).
And because defense counsel failed to follow up, juror No. 10 ultimately gave no
“affirmative and believable statement” that she could “set aside [her] opinions and
decide the case based on the evidence and in accordance with the law.” Wolfe v.
Brigano, 232 F.3d 499, 503 (6th Cir.2000). I would hold that defense counsel’s
failure to question juror No. 10 to determine whether she was a biased juror was
objectively unreasonable and not the result of trial strategy. Hughes at 462. Thus,




                                          22
                                January Term, 2020




defense counsel’s failure to respond in any way to juror No. 10’s comment that she
did not know whether she could be fair was deficient performance.
       {¶ 62} But deficient performance is not enough to establish ineffective
assistance; the next question is whether Bates was prejudiced by the deficient
performance, i.e., whether juror No. 10 was actually biased. State v. Mundt, 115
Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67. As the majority points out,
actual bias can be found from a juror’s express admission of bias or from
circumstantial evidence of the juror’s biased attitudes, see Hughes, 258 F.3d at 459.
When, as here, “the crime itself is likely to inflame the passions of jurors, * * *
courts must be vigilant in ensuring that the demands of due process are met.”
McKenzie v. Smith, 326 F.3d 721, 727-728 (6th Cir.2003). In a previous case
involving the aggravated murder of a three-year-old, this court observed that “[t]he
possibility that one juror might not have fairly considered sentencing options and
may have voted for the death penalty solely because [the defendant] murdered a
three-year-old child is a risk too great to ignore.” State v. Jackson, 107 Ohio St.3d
53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 60. Juror No. 10 expressly admitted, and
explained the reasons for, her bias. And there was no attempt to rehabilitate or
question her further regarding her bias.
       {¶ 63} Appellee, the state of Ohio, contends that juror No. 10’s lack of
response to the prosecutor’s general query about whether any prospective jurors
had “any reason to believe they can’t be a fair and impartial juror” demonstrates
that she “showed no concern about participating as a juror.” But juror No. 10’s
silence in response to general questions regarding fairness and impartiality “did not
constitute an assurance of impartiality.” Hughes at 461; see also Morgan v. Illinois,
504 U.S. 719, 734-735, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (rejecting the
argument that “general inquiries could detect those jurors with views preventing or
substantially impairing their duties in accordance with their instructions and oath”).




                                           23
                             SUPREME COURT OF OHIO




       {¶ 64} Defense counsel’s failure to question or move to strike juror No. 10
allowed an actually biased juror to be empaneled for Bates’s capital trial. Thus, in
addition to the majority’s determination that defense counsel’s representation was
ineffective under Strickland regarding juror No. 31, I would hold that defense
counsel’s representation was ineffective regarding juror No. 10.
                               _________________
       DEWINE, J., dissenting.
       {¶ 65} Today the majority overturns precedent and holds that in at least
some circumstances, a defendant may prevail on an ineffective-assistance-of-
counsel claim based upon counsel’s failure to challenge a prospective juror without
any showing that the juror is actually biased against that defendant. It provides
virtually no explanation for its abandonment of prior precedent; the most that can
be surmised is that the majority does not like the result that our caselaw dictates in
this case. I would adhere to our precedent, so I respectfully dissent.
          A Jury Convicts Glen Bates and He Is Sentenced to Death
       {¶ 66} Glen Bates was convicted of aggravated murder and other offenses
for killing his two-year-old daughter, Glenara. In the final chapter of the girl’s sad
life, Bates murdered Glenara by holding her legs and swinging her head against a
wall while her half sister looked on. After Glenara’s skull had been battered against
the wall, someone apparently attempted to stich her head together with a sewing
needle, without anesthesia. The next day, her mother took her to the emergency
room. On admission, the child had no signs of life—she was cold and pale, had
multiple scars, and was totally emaciated. Despite efforts to revive her, she was
pronounced dead that afternoon.
       {¶ 67} The evidence at trial indicated that Glenara had suffered months of
torture and abuse. At birth, Glenara had been taken from her biological parents and
placed in foster care. But when she was eight months old, she was returned to her
biological parents. She was a healthy 20-pound baby when she left foster care; at




                                         24
                                January Term, 2020




the time of her death 18 months later, she weighed less than 14 pounds. Her half
sister testified that Glenara was forced to sleep on the bathroom floor, never toilet
trained, and rarely given food to eat.
       {¶ 68} By the time of Glenara’s death there were so many overlapping
sores, scars, and bruises on her body that the coroner was unable to count them all.
Nearly every part of Glenara’s head was injured. She suffered severe bleeding
around the brain, as well as injuries to her neck, cheek, ear, upper lip, and gums.
Many of her teeth had been knocked out.
       {¶ 69} The rest of her body was abused almost as badly. She suffered
countless overlapping injuries to her chest and abdomen, including scars, pattern
injuries, and abrasions. She had a prior rib fracture that had begun to heal. She had
bite marks on her body and numerous unusual scars to her left nipple. (Bates
admitted to detectives that he would play a “game” called “doggy gonna get you”
with Glenara in which he would put the emaciated girl in his mouth and shake her
while biting down on her body.) She had multiple injuries to her shoulders,
forearms, fingers, hands, and wrists. She had burns on her hands, severe diaper
rash extending from her lower back down to her thighs, and other injuries that
appeared to come from her having been beaten with a belt.
       {¶ 70} The jury found Bates guilty of aggravated murder with a capital
specification, and the case proceeded to sentencing. Three people testified on
Bates’s behalf: his mother, the mother of one of Bates’s sons, and a friend. The
testimony revealed that Bates had been very involved in church activities during
his youth—he participated in the Boys to Men ministry, was a junior deacon, sang
in the choir, and went to Bible study. Bates was described as being a loving father
to his son. He is a high school graduate and had been employed prior to the offense.
Bates did not make an unsworn statement, and no other mitigation evidence was
presented. Overall, the evidence presented with respect to Bates’s background did
little to explain or mitigate his commission of this crime.




                                         25
                            SUPREME COURT OF OHIO




       {¶ 71} After considering the mitigation evidence, the jury unanimously
recommended the death penalty. The trial court judge conducted an independent
review of the evidence and adopted the jury’s recommendation.
       {¶ 72} The majority reverses Bates’s convictions based on potential racial
bias on the part of juror No. 31. During jury selection, prospective jurors were
asked to fill out a questionnaire containing 131 questions. The majority focuses on
two answers that raise the possibility of racial bias. In one answer, juror No. 31
checked “strongly agree” when asked if some races tend to be more violent than
others and in explaining the answer wrote “Blacks.” In response to a question about
whether there were some racial groups that she does not feel comfortable being
around, she wrote, “Sometimes black people.” On another question, however, she
responded that she had never “had a negative or frightening experience with a
person of another race.” And in response to another question, she indicated that
she had not “been exposed to persons who exhibited racial, sexual, religious and/or
ethnic prejudice.”
       {¶ 73} She also indicated on the questionnaire that she had a disabled adult
child, who lived with her. And in response to other questions, she said that she had
a son who suffered from “mental issues.”
       {¶ 74} Juror voir dire was conducted in groups of 12. Defense counsel
asked juror No. 31’s group if there was anyone who could not be fair and impartial,
and he received no affirmative responses. Defense counsel did not, however,
conduct individual voir dire on juror No. 31, and she was not asked to explain her
race-based answers on her juror questionnaire. Defense counsel did not challenge
juror No. 31 for cause. And though defense counsel utilized five of the six
peremptory challenges that were available, counsel did not use a peremptory
challenge to remove juror No. 31.




                                        26
                                January Term, 2020




          Ineffective Assistance of Counsel Based on Jury Voir Dire
       {¶ 75} To prevail on his ineffective-assistance-of-counsel claim, a
defendant is required to show both that his counsel was deficient and that he was
prejudiced by the deficient representation. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because “[a]n ineffective-assistance
claim can function as a way to escape rules of waiver and forfeiture and raise issues
not presented at trial,” the United States Supreme Court has cautioned that “the
Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial
inquiry’ threaten the integrity of the very adversary process the right to counsel is
meant to serve.” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178
L.Ed.2d 624 (2011), quoting Strickland at 690.
       {¶ 76} In this case, however, the majority concludes that Bates need only
comply with the first part of the test: it determines counsel was deficient for not
asking individual questions of juror No. 31 about the race-based answers on her
questionnaire, and it then presumes that Bates was prejudiced as a result.
       {¶ 77} Traditionally, we have granted counsel wide latitude in the conduct
of voir dire. This is because “ ‘[f]ew decisions at trial are as subjective or prone to
individual attorney strategy as juror voir dire, where decisions are often made on
the basis of intangible factors.’ ” State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-
4836, 873 N.E.2d 828, ¶ 64, quoting Miller v. Francis, 269 F.3d 609, 620 (6th
Cir.2001). Thus, we have “consistently declined to ‘second-guess trial strategy
decisions’ or impose ‘hindsight views about how current counsel might have voir
dired the jury differently.’ ” Id. at ¶ 63, quoting State v. Mason, 82 Ohio St.3d 144,
157, 694 N.E.2d 932 (1988); State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556,
90 N.E.3d 857, ¶ 50.
       {¶ 78} And when, as here, race is not an issue in the trial, this court has
consistently deferred to an attorney’s tactical decision whether to question jurors
about racial bias during voir dire. See, e.g., State v. Hale, 119 Ohio St.3d 118,




                                          27
                             SUPREME COURT OF OHIO




2008-Ohio-3426, 892 N.E.2d 864, ¶ 218; State v. Ahmed, 103 Ohio St.3d 27, 2004-
Ohio-4190, 813 N.E.2d 637, ¶ 143; State v. Smith, 89 Ohio St.3d 323, 327, 731
N.E.2d 645 (2000); State v. Watson, 61 Ohio St.3d 1, 13, 572 N.E.2d 97 (1991),
abrogated on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112
(1997). Indeed, we have upheld convictions when trial counsel asked no questions
about race even though the defendant was accused of an interracial crime. See, e.g.,
State v. Sanders, 92 Ohio St.3d 245, 274, 750 N.E.2d 90 (2001); Smith at 327-328.
Nonetheless, the majority concludes that by failing to question juror No. 31 about
her responses on the questionnaire, counsel’s performance was “insufficient under
the circumstances.” Majority opinion at ¶ 32.
                        The Majority Presumes Prejudice
       {¶ 79} Under Strickland, once the majority concluded that counsel was
deficient it was required to determine if this deficient performance prejudiced the
defendant. When determining whether a defendant has been prejudiced by his
attorney’s deficient representation, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct.
2052, 80 L.Ed.2d 674; see also State v. Bradley, 42 Ohio St.3d 136, 143, 538
N.E.2d 373 (1989). In other words,


       When a defendant challenges a conviction, the question is whether
       there is a reasonable probability that, absent the errors, the factfinder
       would have had a reasonable doubt respecting guilt.            When a
       defendant challenges a death sentence such as the one at issue in this
       case, the question is whether there is a reasonable probability that,
       absent the errors, the sentencer * * * would have concluded that the
       balance of aggravating and mitigating circumstances did not warrant
       death.




                                          28
                                January Term, 2020




Strickland at 695. “The likelihood of a different result must be substantial, not just
conceivable.” Harrington, 562 U.S. at 112, 131 S.Ct. 770, 178 L.Ed.2d 624. And
when reviewing for prejudice, “a court should presume * * * that the judge or jury
acted according to law.” Strickland at 694.
       {¶ 80} Here, it is clear that Bates cannot satisfy the traditional prejudice
standard. The state presented substantial evidence of his guilt. Glenara’s half sister
testified that she saw Glenara’s “head get banged” when Bates held Glenara’s legs
and swung her against a wall. Glenara died from the resulting head injury the
following day. There was no evidence that anyone other than Bates caused
Glenara’s head injury; indeed, Bates’s defense at trial essentially was that it was an
accident.   The jury watched Bates’s interviews with the police.          During the
interviews, Bates repeatedly denied that he had ever witnessed or caused a head
injury to Glenara. Then he changed his story, telling one of the detectives that he
accidentally dropped her on her head while playing with her. The doctor who
performed the autopsy contradicted this account, testifying that it would be unusual
for a short linear fall to result in the kind of subdural hemorrhages present on
Glenara’s head and that the injuries were more consistent with the child being
swung against the wall than being dropped on her head. Given this clear evidence
of guilt, it is simply not likely that a different juror would have voted to acquit or
to convict him of a lesser included offense.
       {¶ 81} Nor would Bates fare any better with respect to the sentence. The
jury found beyond a reasonable doubt that Bates was the principal offender in the
commission of the aggravated murder of a child under the age of 13, so the
mitigating factor that he participated to a lesser degree does not apply. See R.C.
2929.04(B)(6). The nature and circumstances of Glenara’s death do not offer
anything in mitigation. There was no evidence that Glenara induced or facilitated
the murder, no evidence of duress, coercion, or provocation, and no evidence that




                                         29
                              SUPREME COURT OF OHIO




Bates was suffering from any mental disease or defect. See R.C. 2929.04(B)(1)
through (3). Bates was 33 at the time of the murder, so youth is not a factor. See
R.C. 2929.04(B)(4). No evidence was presented as to whether Bates had any prior
criminal convictions or juvenile adjudications. See R.C. 2929.04(B)(5). There is
little in Bates’s background that is mitigating—rather, the evidence presented
suggests that Bates had generally lived a life devoid of significant trauma.
       {¶ 82} Indeed, when it is alleged that a potentially biased juror was allowed
to sit on a jury, the Strickland prejudice test is a difficult one to meet. Absent juror
testimony, there is almost no way to know if an improper bias influenced juror
decision making.
       {¶ 83} The United States Supreme Court has never addressed the issue
whether prejudice may be presumed under Strickland when a biased juror is
allowed to sit on a jury because of a failure by defense counsel. In Strickland, the
court identified only a few limited circumstances in which prejudice would be
presumed: when there has been “[a]ctual or constructive denial of the assistance of
counsel altogether,” when the state has interfered with counsel’s assistance, and
when counsel has labored under a conflict of interest. 466 U.S. at 692, 104 S.Ct.
2052, 80 L.Ed.2d 674; see also Weaver v. Massachusetts, ___ U.S. ___, 137 S.Ct.
1899, 1915, 198 L.Ed.2d 420 (2017) (Alito, J., concurring in the judgment) (“The
Court has relieved defendants of the obligation to make this affirmative showing in
only a very narrow set of cases in which the accused has effectively been denied
counsel altogether”).
       {¶ 84} Although the United States Supreme Court has never held that
Strickland prejudice should be presumed based on the presence of a biased juror, it
has held that when an objection is properly preserved, the presence of a biased juror
would mandate the reversal of a conviction. Ross v. Oklahoma, 487 U.S. 81, 85,
108 S.Ct. 2273, 101 L.Ed.2d 80 (1988); United States v. Martinez-Salazar, 528
U.S. 304, 316-317, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). Based on this principle,




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a number of circuit courts have expanded the categories in which prejudice may be
presumed under Strickland to include instances when there has been a showing that
a juror was actually biased against a particular defendant. See, e.g., Miller v.
Francis, 269 F.3d at 616; Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.1995); but
see People v. Manning, 241 Ill.2d 319, 333, 948 N.E.2d 542 (2011) (refusing to
adopt a presumption of prejudice based on juror bias).
       {¶ 85} We adopted this type of actual-bias standard in Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828. There we held that a defendant could
establish prejudice under Strickland by showing that counsel allowed the
impanelment of a juror who was actually biased against the defendant. Id. at ¶ 67.
We explained that “[w]hen a defendant bases an ineffective-assistance claim on an
assertion that his counsel allowed the impanelment of a biased juror, the defendant
‘must show that the juror was actually biased against him.’ ” (Emphasis added in
Mundt.) Id., quoting Miller v. Francis at 616.
       {¶ 86} We applied the actual-bias standard in State v. Pickens, 141 Ohio
St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, another death-penalty case with facts
remarkably similar to this one. In that case, we recounted responses that a juror
had made on his juror questionnaire:


       The questionnaire asked, “Is there any racial or ethnic group that
       you do not feel comfortable being around?” Carroll answered “yes,”
       and explained: “Young black men with their pants down to their
       knees.”   The questionnaire also asked, “Have you ever had a
       negative or frightening experience with a person of another race?”
       Carroll answered “yes,” and explained: “At a gas station—black
       man appeared—‘Give me your wallet or die right here.’ ” Another
       question asked for thoughts on “the issue of racial discrimination
       against African-Americans in our society.”        From the several




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        options offered as answers, Carroll chose the one that read “[A] very
        serious problem.”


Id. at ¶ 209.
        {¶ 87} During voir dire, the prosecutor asked the juror about the robbery,
but no questions were asked about the other comments. We concluded that
Pickens’s attorneys were deficient for failing to follow up on the responses on the
questionnaire and question the juror “about his racially based comments to
determine whether he was a biased juror.” Id. at ¶ 212. Nonetheless, we refused
to presume prejudice. Instead, we restated that to establish prejudice, Pickens
“ ‘ “must show that the juror was actually biased against him.” ’ ” Id. at ¶ 213,
quoting Mundt at ¶ 67, quoting Miller v. Francis, 269 F.3d at 616. We noted that
under questioning, the juror had said nothing to indicate that he harbored a racial
bias as a result of the robbery that occurred. Id. And we further explained that
“Carroll’s comment about ‘[y]oung black men with their pants down to their knees’
does not necessarily reflect bias against Pickens personally.” Id. In declining to
find actual bias, we stated that “[w]hether failure to strike [the juror] from the panel
was prejudicial is speculative because it is possible that he might have been
rehabilitated under further questioning.” Id., citing Hale, 119 Ohio St.3d 118,
2008-Ohio-3426, 892 N.E.2d 864, at ¶ 213.
        {¶ 88} The majority today overrules Pickens (and presumably Mundt as
well) and holds that when an attorney fails to follow up on racially based comments
on a juror questionnaire, prejudice will be presumed without any showing that the
juror is actually prejudiced against the defendant. In effect, the two-part Strickland
inquiry is collapsed into a single step.       If counsel is deficient for failing to
adequately inquire into potential racial bias on the part of the juror, there is no need
to show anything more—the prejudice inquiry is eliminated altogether.              The
defendant need not show that the attorney’s error affected the outcome of the trial




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or even that a juror who was actually biased against the defendant sat on the jury:
the potential of juror bias is sufficient.
        {¶ 89} As far as I am aware, no other court has done what the majority does
today in holding that potential juror bias is sufficient to constitute a Sixth
Amendment violation. The Utah Supreme Court similarly was unable to find any
support for the position that is adopted by the majority today, explaining, “We are
aware * * * of no case from any jurisdiction supporting the * * * expansion of the
Sixth Amendment to require reversal of a guilty verdict based on possible juror
bias.” State v. King, 2008 UT 54, 190 P.3d 1283, ¶ 18. (The question before that
court, which it answered in the negative, was nearly identical to the one before us
today: “whether Strickland prejudice may be presumed when a lawyer fails to
sufficiently probe prospective jurors who exhibit the potential for bias,” id. at ¶ 13.)
        {¶ 90} In removing the requirement that a defendant establish actual bias,
the majority creates perverse incentives for defense counsel.               If a juror
questionnaire indicates potential bias, the rational move for defense counsel is not
to question that juror at all. That way, the defendant can see what happens at the
first trial and if the verdict is unfavorable receive an automatic retrial. See State v.
Hadley, 815 S.W.2d 422, 423 (Mo.1991) (“The rule requiring contemporaneous
objections to the qualifications of jurors * * * serves to minimize the incentive to
sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction
attack on the jury selection process”).
        {¶ 91} Rather than defend the novel legal position adopted by the majority,
the first concurring opinion takes exception with the dissent’s recounting of the
facts of the crime. It doesn’t argue that the facts are incorrect or misleading. Just
the opposite. Its objection is that the dissent’s description of what happened is too
accurate. Apparently, the concurrence believes that principles of “equal justice”
are best served by glossing over precedent and sanitizing the facts. First concurring
opinion at ¶ 43. Its protests, however, cannot obscure how markedly the majority




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departs from our prior precedent. If we apply our caselaw, there can be little
question that Bates has failed to meet his requirement of showing actual bias. There
is nothing in the record from which to conclude that juror No. 31—who is presumed
to have acted in accordance with the law—was unable to render a fair and impartial
verdict in this case. She “ ‘never stated that she could not be fair.’ ” Mundt, 115
Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, at ¶ 68, quoting Miller v. Francis,
269 F.3d at 617. She never stated that she could not impartially apply the law to
the case in front of her. She never indicated that she was biased against Bates.
       {¶ 92} No question, this case presents difficult facts. It is hard to understand
why defense counsel chose not to pursue an individualized inquiry of juror No. 31.
But our precedent requires a showing of actual bias before a jury verdict will be
reversed for juror bias. I would adhere to this precedent. Because the record does
not demonstrate that juror No. 31 was “actually biased against [the defendant],” see
Mundt at ¶ 67, I would reject Bates’s 17th proposition of law and proceed to review
his remaining claims.
       KENNEDY, J., concurs in the foregoing opinion.
                               _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr., Assistant Prosecuting Attorney, for appellee.
       Todd W. Barstow and Roger W. Kirk, for appellant.
       Squire Patton Boggs, L.L.P., and Richard S. Gurbst, urging reversal for
amicus curiae, NAACP Legal Defense & Educational Fund, Inc.
                               _________________




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