Four jurors should not have served on a woman’s Mesa County trial, the state’s Court of Appeals determined, because they all volunteered they would believe police officers over the word of a non-officer simply due to their status as law enforcement.

A three-judge panel for the appellate court reversed the felony assault conviction of Brenda May Maggio last week and ordered a new trial. A defendant’s right to a fair trial requires an impartial jury, and the panel agreed Jurors M, C, T and W all indicated a bias toward thinking police witnesses were inherently more credible.

“Here, the jurors expressed an ability to follow the law and be fair and impartial at various points,” wrote Judge John Daniel Dailey in the March 10 opinion. However, “none of them indicated that they could be fair and impartial in assessing law enforcement testimony against lay witness testimony. Instead, the record reflects an unequivocal bias that, everything else being equal, they would believe law enforcement testimony over lay witness testimony.”

Police found Maggio cleaning out a ditch on property she used to own in Mesa County. Maggio insisted she had a right to be there, but officers detained her inside a police car. While there, Maggio, who had a medical condition affecting her ability to swallow, spit in the car.

A deputy claimed that she had spit on him. Maggio asserted she had to clear her throat, but did not intend to spit on the deputy. There were no other witnesses.

A jury acquitted Maggio of a misdemeanor offense for trespassing, but convicted her of assault for spitting on the deputy. She received a two-year sentence.

During voir dire, which is the part of jury selection during which the parties question individual jurors, Maggio’s lawyer spoke to a man identified as Juror J. She asked him to imagine that a law enforcement officer testifies that something took place, and a non-police officer testifies that the opposite occurred. Would Juror J believe the officer if there was no other evidence?

“Yeah, I would,” he responded. Police officers are “held to a certain code of conduct and rules and regulations, and by in large (sic) from my interactions and from what I’ve heard from other people they follow those.”

The defense attorney asked if any other jurors agreed with Juror J that a police officer’s word was more credible than another person’s. Multiple people raised their hands, including Jurors M, C, T and W.

At that point, Chief Judge Brian J. Flynn informed the lawyer that her time had expired.

The defense moved to excuse Juror J for cause, citing his answer to the question about law enforcement officers. Flynn declined to do so.

He told the defense attorney she had done “no follow-up” on Juror J’s answer. “You didn’t ever follow-up or allow him to articulate the basis for that,” the judge explained.

Although the defense was able to successfully dismiss Juror J using a peremptory challenge, which does not typically require a reason for the dismissal, the four jurors who raised their hands in agreement with Juror J sat on the jury that convicted Maggio.

On appeal, Maggio argued the jurors’ views on the intrinsic believability of police officers were highly relevant, given that the only witness to alleged assault on the deputy was the deputy himself.

“Credibility is key and nothing in the record supports any inference the jurors could resolve credibility fairly, given their last position in agreeing with Juror J that law enforcement testimony is more believable than lay testimony simply because it comes from law enforcement,” wrote attorney Cynthia Harvey.

The attorney general’s office disagreed, saying the jurors never indicated they would have a problem following the law, and Maggio’s trial lawyer should have asked more questions of the jurors to clarify their views.

The appellate panel acknowledged that further questioning of the jurors, known as rehabilitation, could have established they were willing to evaluate law enforcement testimony impartially after all. The Court of Appeals laid the failure to do so primarily on Flynn.

“(T)he responsibility to ensure that the jurors selected are fair and impartial, is in the first instance, vested in the trial judge,” Dailey wrote.

The panel ordered a new trial for Maggio. Although the jurors had indicated they would follow the law during voir dire, Dailey explained, those acknowledgements came prior to the revelation that they would believe police testimony over that of a non-officer. 

District Attorney Daniel P. Rubinstein said his office will continue to pursue the case in consultation with the victim.

The case is People v. Maggio.