People v.  Maffei - decided May 7, 2020

Issue: Can an ineffective assistance of counsel claim be sustained where defense counsel did not challenge a juror for cause for exhibiting bias?

Held: In a 6-1 decision, the Court found that the juror in question did not harbor an actual bias against Maffei but instead merely expressed general unease about the crime based on having seen pre-trial publicity. Thus, counsel was not ineffective for failing to challenge that juror for cause.

CAL observes: There might still be room to argue on facts where there is even clearer bias that counsel’s failure to challenge a juror constitutes ineffective assistance, but doing so will be hard. (It is also difficult to imagine a juror being more explicit than to say he was “not sure” he could be fair. Moreover, the Court assumes the conclusion when it says that a challenge for cause is evidence that a defendant does not want a juror to be seated; such omission by defense counsel, who bears ultimate responsibility for jury selection choices, could, of course, also be evidence of ineffectiveness.) As seems to be the trend, C.P.L. § 440.10 appears increasingly to be the way to go for ineffective assistance claims—especially, as the Court found, in matters of jury selection.

In dissent, Judge Rivera makes the point that defendants have the right both to an impartial jury and to effective counsel. By failing to challenge the juror (or at the very least ask a question to ascertain whether he could overcome his preconceptions and be fair), an egregious single error, defense counsel had acted deficiently. In her analysis, no off-record information could change that counsel had failed to object where a juror had unambiguously exhibited bias, and the majority was engaging in speculative gymnastics to find that the juror had simply expressed discomfort over the facts of the case. As she aptly put it, “[w]ho wants a juror who, at most, can only say they ‘hope’ they can” be fair?