A juror who did not disclose that he was a convicted sex offender
has given a fellow convicted sex offender a shot at another trial.
On Thursday, the state Supreme Court will hear arguments about
whether Michael Allen Miller should get the second trial granted by the
state Court of Appeals. He was convicted in March 2006 of first-degree
criminal sexual conduct for forcing a 7-year-old girl to perform oral
sex. The incident happened near Holland.
The Ottawa County Circuit Court jury unanimously found the
31-year-old Miller guilty. He is now serving a 14- to 30-year sentence.
But not long after sentencing, his lawyer Damian Nunzio discovered
that one juror, a man named Jesse Lara, had failed to disclose his own
criminal past. According to court records, Lara had a pair of
convictions -- one from 1991 and another from 1999 -- of assault with
intent to commit sexual penetration.
In
August 2006, Lara testified that he didn't disclose the information for
Miller's trial because it was a long time ago and he figured it wasn't
anything that "would still carry on today." Court records say that Lara
thought the conviction would be on his record for seven years or so.
Felony conviction records are permanent.
Ottawa County Circuit Judge Calvin Bosman ruled that Lara's
thinking, while muddled, did not indicate an attempt to deceive and did
not appear to impair his ability to fairly render a verdict.
Nunzio disagreed and told his client to appeal. Nunzio said that
having a person convicted of a crime can bring two different problems:
Someone with an ax to grind against the prosecution or someone who
feels a defendant should have to suffer like he or she has.
"It should be an automatic disqualification," Nunzio said. "Why is
this person sitting on a jury to judge someone accused of a similar
crime?"
A juror who did not disclose that he was a convicted sex offender
has given a fellow convicted sex offender a shot at another trial.
The appeals court agreed with Nunzio, saying Miller was denied a
fair trial when Bosman failed to grant his request to have the case
come before another jury.
Ottawa County Assistant Prosecutor Gregory Babbitt, who appealed the
case to the Supreme Court, will argue that the inclusion of Lara did
nothing to taint the jury that requires a new trial.
"He tried to be fair, listened to all of the evidence, the judge's
instructions and the attorneys' arguments," Babbitt wrote in a brief to
the Court. "(The) prejudice is presumed prejudice, not actual
prejudice, since the juror indicated his personal experience in no way
influenced his decision and he in no way influenced the other members
of the jury because of his personal experience."
But Gaylord Attorney Gary Kohut, representing Miller, says the issue
that will be argued in Lansing is one of the most basic tenets of the
American legal system.
"The law requires that a jury be comprised of 12 impartial jurors," Kohut said. "My client did not have that."
