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18-P-832                                               Appeals Court

              COMMONWEALTH     vs.   ADRIAN J. GONSALVES.


                              No. 18-P-832.

           Plymouth.       May 3, 2019. - September 6, 2019.

              Present:     Rubin, Desmond, & Ditkoff, JJ.


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



     Indictment found and returned in the Superior Court
Department on September 19, 2014.

     The case was tried before Richard J. Chin, J., and a motion
for a new trial, filed on June 13, 2017, was heard by him.


     Keith Garland, Assistant District Attorney, for the
Commonwealth.
     Glynis Mac Veety for the defendant.


    RUBIN, J.    The day after a jury convicted the defendant of

manslaughter and acquitted him of assault and battery, the

prosecutor from the Plymouth County district attorney's office

who tried the case discovered that one of the jurors who

deliberated on the case had, prior to the start of the trial,
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accepted an unpaid clerical internship with that district

attorney's office, which was to begin one week after the trial

concluded.    The prosecutor made the discovery after trial when

she sent a text message to the juror's father, a police officer

with whom she had worked in the past.     The text message said,

"Your daughter was on my jury.     I hope she enjoyed the

experience!"    The juror's father replied, "Yes she had a great

experience.    She is also doing an internship Tuesdays and

Wednesdays at the DAs main office starting next week.       You can

talk to her about the case.    Very interesting!"

    Commendably and appropriately, the prosecutor, upon

learning this information from the father's text message,

immediately notified counsel for the defendant, who, alleging

the juror was biased, moved for a new trial.     The judge held an

evidentiary hearing and allowed the defendant's motion.       The

Commonwealth now appeals.

    Background.     The following facts are taken from the judge's

findings supplemented by the uncontested evidence.     See

Commonwealth v. Buck, 64 Mass. App. Ct. 760, 761 (2005).       Juror

no. 45 (the juror) was considering a career in law enforcement.

In a juror questionnaire she reported that she was a part-time

student, a sophomore in college.     Prior to the defendant's

trial, on April 23, 2017, she applied online to the Plymouth

County district attorney's office for a summer internship.       The
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internship was part of the office's "Volunteer Undergraduate

Internship Program" and ran from May 30 through August 4.     The

internship was seven-and-one-half hours per day, two days per

week.   The juror was interested in the justice system and viewed

the internship as an experience to put on her resume and an

opportunity to obtain future references.   On May 4, 2017, she

received an e-mail from the district attorney's office offering

her the internship.   She accepted the offer on May 5, 2017.     The

trial began ten days later, on May 15, 2017, and ended on May

23, 2017, one week before the juror was to start her internship.

    Before voir dire, all prospective jurors completed a

confidential questionnaire that asked, among other things, "Have

you or anyone in your household or family ever worked for . . .

[a] [l]aw enforcement agency?"   In the judge's new trial

memorandum, he reported that "[d]uring impanelment, this Court

struck for cause several jurors who appeared biased based on

present or previous employment in law enforcement.   For example,

this Court struck an attorney who previously was employed by the

Plymouth County District Attorney's Office, and a police officer

in a town in Plymouth County."

    The juror checked the box to indicate her answer to the

question was "Yes," and elaborated only, "My father is a

Rockland police officer."   She did not mention her future

internship.   At the evidentiary hearing, she testified that she
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omitted it because she "hadn't started yet, so [she] didn't see

that as something [she] had to put down."     The judge credited

this explanation and found that the juror "did not withhold

information about . . . her internship with the District

Attorney with an intent to deceive."

    The judge also found that the juror had omitted from her

answer the fact that in June of 2016, when she was nineteen, she

worked for the Marshfield Police Department conducting an

undercover alcohol sting in the town.     Her father, a Rockland

police officer, knew that the Marshfield police were looking for

someone under the age of twenty-one to assist them.     The juror

worked for three nights for about two hours each night.      She

went to every restaurant and liquor store in town and attempted

to purchase liquor.     Two police officers supervised her, telling

her where to go next.     She reported back to the officers whether

or not a particular establishment sold her liquor and with whom

she interacted.   She was paid by the Marshfield Police

Department in cash for her assistance, receiving $150 per night.

In addition, the judge found that in June of 2017, after serving

as a juror in the instant matter, she again worked for the

Marshfield police in their undercover alcohol sting.      The judge

found that "[w]hen filling out the questionnaire, it did not

cross [the juror's] mind that the undercover stings were work
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with the Police Department.     She did not view her participation

in the stings as employment."

    The judge concluded that the juror "incorrectly answered

the questions relating to whether she had ever worked for law

enforcement, but did not withhold information about her

undercover work with the Marshfield Police and her internship

with the District Attorney with an intent to deceive."        The

judge found that the juror was not actually biased against the

defendant.     However, he found "that [the juror's] acceptance of

an internship with the District Attorney's Office mere days

before the start of [the defendant's] trial gives rise to

implied bias as a matter of law."     He also found that

"employment by the police in an undercover sting on several

occasions is a connection to police that is different in kind

from the disclosed fact that [the juror's] father is a police

officer.     [Her] active assistance of the police in enforcing the

law makes it probable that she would be predisposed to credit

police testimony and favor the Commonwealth's position, whether

consciously or unconsciously.     This is particularly true given

her interest in a career in law enforcement."     The judge

concluded that on these two bases, if the court had had this

information before trial, the juror could have been struck for

cause, and the judge therefore ordered a new trial.
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    Discussion.     The defendant does not now argue that the

juror was actually biased, and we see no error in the judge's

conclusion on this issue given his unchallenged findings that

the juror's omissions were not motivated by an intent to

deceive.   We therefore must determine whether there was any

error in the judge's conclusion the juror was impliedly biased.

We conclude there was not.    Because we decide the case on the

basis of the juror's future employment with the prosecutor's

office alone, we need not assess whether a new trial was

required due to the juror's undisclosed employment in undercover

work with the Marshfield police.

    "The bias of a prospective juror may be actual or implied;

that is, it may be bias in fact or bias conclusively presumed as

matter of law."   United States v. Wood, 299 U.S. 123, 133

(1936).    Significantly, though confusingly, a finding of implied

bias does not mean that the individual is actually biased.      In

part, the doctrine of implied bias exists "to maintain the

appearance of impartiality in our justice system."    People v.

Rhodus, 870 P.2d 470, 473 (Colo. 1994).

    Bias is "conclusively presumed" -- i.e., implied –- when,

among other things, a juror has a particular connection to the

case, including when "the juror is an actual employee of the

prosecuting agency."    Commonwealth v. Mattier (No. 2), 474 Mass.

261, 275 (2016), quoting Commonwealth v. Amirault, 399 Mass.
                                                                      7


617, 628 n.5 (1987).    Compare Mattier, supra at 275-276

("'[E]ven a tiny financial interest in the case' has required a

juror to be excused for cause.    Accordingly, courts have

presumed bias in stockholders of for-profit corporations that

are parties in a lawsuit" [citations omitted]).     The question in

this appeal boils down to this:    Was the juror's connection to

the case sufficiently like that of an actual employee of the

prosecuting agency that the judge was correct to conclude she

was impliedly biased?

    We hold that it was.      The seating of a juror who has

accepted a position with the office prosecuting the case raises

significant doubts about the fairness of the proceeding.       Like

an employee who has begun work, one who has accepted a position

with the prosecuting agency might reasonably be expected to have

some loyalty to the agency.     A future employee, moreover, has an

incentive to return a verdict favorable to the prosecution.

Employees know that first impressions matter, and there is a

danger that a future employee might believe that she would gain

favor with her future employer by returning a favorable verdict,

or that she would fear starting off on the wrong foot by

returning an unfavorable one.

    These considerations apply with full force to unpaid

interns.   See People v. Lynch, 95 N.Y.2d 243, 248 (2000)

("student intern employed at the prosecuting agency's office
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. . . should have been dismissed for cause").    Because such

interns receive no financial remuneration, interns' experiences

and their relationships with superiors constitute their primary

forms of compensation.   As an unpaid intern likely would believe

that both might be affected by a vote to acquit, the intern has

an incentive to try to gain favor with the lawyers in her agency

by returning a verdict favorable to it.

     The Commonwealth's arguments to the contrary fail.    First,

it argues that the juror could not be dismissed because G. L.

c. 234A, § 3, prohibits the exclusion of jurors on the basis of

"occupation."   But the implied bias in this case arose not

because of the juror's future occupation as an intern, but

because her future employer was the prosecuting agency in this

case.

     Second, the Commonwealth argues that because neither the

judge nor the attorneys asked the juror about her future

employment, she did not consciously conceal it, and therefore,

she is not impliedly biased.   But conscious concealment is not

required for implied bias; regardless of whether it was

consciously concealed, or even something the juror was required

to disclose given the phrasing of the question she was asked,

the fact of the juror's future employment created both an

incentive for and an appearance of partiality.
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    "On a claim of structural error alleging that a jury were

not impartial because a particular juror was biased, the

defendant must show actual or implied juror bias. . . .     If the

defendant is able to show such bias, the error is structural and

he need not show that the verdicts were thereby affected."

Commonwealth v. Hampton, 457 Mass. 152, 163 (2010).   The

defendant here has made this showing.   The judge's decision to

grant the defendant a new trial was therefore correct, and the

order granting it is affirmed.

                                   So ordered.
