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Case 22-1426, Document 87, 07/27/2023, 3548202, Page31 of 35

that he did not see that key questions related to sex abuse and his belief that they
only applied to others and not to him beggars belief since the process was to
determine if he was to be a qualified juror. The court, in accepting his answers, was
credulous, willing to trust the juror’s answers almost uncritically.

The Court also ignored existing authority for the proposition that a new trial
may still be ordered, separate from the McDonough prongs if the defendant can show
bias. See, e.g., Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002) A showing that a
juror was actually biased, regardless of whether the juror was truthful or deceitful,
can also entitle a defendant to a new trial."); Skaggs v. Otis Elevator Co., 164 F.3d
511, 516 (10th Cir. 1998) ("The advent of the [McDonough] test did not eliminate a
litigant's broader historic right to prove actual or implied juror bias."). In
McDonough itself, Justices Blackmun, Stevens, and O'Connor concurred separately
"to clarify that juror partiality could still be proven by showing actual or implied
bias." McDonough, 464 U.S. at 556.

While the McDonough Court highlighted the importance of the voir dire
process as a guard against juror bias, it also noted that no trial is perfect, and that
counsel has a responsibility to obtain relevant information from prospective jurors.
464 U.S. at 554-55. While the court unfairly limited the inquiry into Juror 50’s bias,
the record, nevertheless, amply demonstrates that Juror 50 gave intentionally false
statements under oath in his juror questionnaire to conceal that he had experienced

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