Heard: May 3, 2019.
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.
Garland, Assistant District Attorney, for the Commonwealth.
Mac Veety for the defendant.
Present: Rubin, Desmond, & Ditkoff, JJ.
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, 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
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.
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
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.
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
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 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
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 with
the Police Department. She did not view her participation in
the stings as employment."
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