Colorado's second-highest court on Thursday declined to overturn a man's convictions for sexually assaulting multiple children despite one juror disclosing that she "wouldn't give him a fair trial."
Joseph Lee Davis is serving a sentence in excess of 600 years for grooming, raping or enticing seven boys over a span of two decades. Davis raised several arguments on appeal, including that one member of his jury, identified as Juror 2, was biased against him because she would only commit to "try" and decide the case fairly after expressing doubts about her suitability to serve.
"Contrary to Davis’s assertion, the fact that she did not 'guarantee' these things does not mean that she was actually biased," wrote Judge David H. Yun in a March 16 opinion for the Court of Appeals.
Davis stood trial in 2020 in El Paso County. The case had encountered many hiccups, including a change of judges, the recusal of the public defender's office, Davis' noncooperation with court procedure and the COVID-19 pandemic.
After opening statements and the first prosecution witness, Juror 2 approached court staff to say there was "too much anger" and she "cannot do this."
Juror 2 elaborated to the judge and the parties: "This is too intense for me. I think I wouldn't give him a fair trial."
District Court Judge Jessica Curtis decided to wait until the next morning to determine if "she's just having an emotional reaction" or if Juror 2 could no longer hold the prosecution to its burden of proving Davis guilty beyond a reasonable doubt.
The following day, Curtis told Juror 2 she was "allowed to have an emotional reaction to the evidence," but asked whether Juror 2 would "keep an open mind until the evidence is completed and you go back to deliberate."
"I don't know," Juror 2 responded. "I will try."
Juror 2 made further statements that she "thought" she could listen to all the evidence before deciding guilt. When the defense attorney asked if she still had "that little buzz in the back of your mind" that she would not give Davis a fair trial, Juror 2 responded no.
"I can't give you a 'yes' or 'no' like you're asking. I will do my best to try," she clarified.
Curtis declined to remove Juror 2 and replace her with an alternate. Curtis emphasized having a fair trial was "most important" to her, and Juror 2 appeared "calmer" than the previous day.
"She was firm in her conviction, she evidenced an understanding of the law," Curtis said. "And so at this time I have no concerns about this juror’s ability to follow the law and continue to weigh the evidence, presume Mr. Davis innocent, and hold the government to their burden."
In response to Davis' appeal, the prosecution acknowledged Juror 2's responses were somewhat shaky, but that Curtis was justified in keeping her on the jury.
"Despite being presented a clear avenue for dismissal, Juror No. 2 affirmed that her initial concerns were based on a temporary emotional response," wrote Assistant Attorney General Frank R. Lawson. "She believed she could be fair and impartial, and confirmed that she would try."
Davis countered that "trying" to be fair was not good enough, and Juror 2's decision to alert the judge about her concerns indicated a real problem.
"The only logical conclusion to be drawn from the Juror’s statements is that after hearing opening statements and one witness testify, she had already decided Mr. Davis’s fate," wrote attorney Eric A. Samler.
A three-judge panel for the Court of Appeals was unconvinced. Curtis was in the best position to evaluate Juror 2's ability to be fair, Yun wrote, and Juror 2 herself had rejected the defense's notion that she still had the "buzz" from the previous day.
"The juror expressed that she understood the law and her duty and declined the 'out' that defense counsel offered," Yun added.
The panel rejected Davis' other claims on appeal, including that Curtis mistakenly permitted the jury to hear out-of-court statements from one of the child victims despite it being unallowable hearsay. On appeal, the government acknowledged one of the prosecutors at trial had mistakenly told Curtis that the prior judge handling the case had already admitted the hearsay evidence. In reality, the judge made no such ruling.
However, the Court of Appeals panel believed the victim's recorded interview was acceptable under the evidentiary rules anyway, given that the child testified at Davis' trial and his statements were consistent with the recorded interview.
The case is People v. Davis.
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