Yakima County Prosecuting Attorney Joe Brusic

FILE — Yakima County Prosecuting Attorney Joe Brusic prepares to join a video chat meeting with his peers in the Washington Association of Prosecuting Attorneys, a liaison for county prosecutors at the state and national levels, Thursday, May 7, 2020, at the Yakima County Courthouse in Yakima, Wash.

Yakima County Prosecuting Attorney Joe Brusic will not challenge an appellate court’s ruling to throw out a man’s assault conviction because an ethnically biased juror heard the case.

As Brusic’s office decides whether to retry Robert Gutierrez III or work out a plea deal, Brusic said he will use the case as a learning experience with his deputies in confronting implicit bias during jury selection.

“It starts with me,” Brusic said in a phone interview Friday. “It’s my responsibility to make sure the other prosecutors understand” what to do in a similar case in the future.

In a 37-page published decision Thursday, the Spokane-based Division III Court of Appeals ordered Gutierrez’s convictions on second-degree assault, unlawful possession of a firearm and felony harassment overturned, and the case sent back to Yakima County Superior Court.

In their findings, the three-judge panel was critical of Judge Gayle Harthcock, who presided over the trial, for not removing the juror on her own initiative after the juror’s bias against Latinos was revealed during jury selection.

“When a juror expresses actual bias, and the attorneys do not move to excuse the juror, the court has an obligation to conduct an independent inquiry and excuse the juror if the court is satisfied that the juror cannot try the issues impartially and without prejudice to the substantial rights of parties,” appellate court Judge Tracy A. Staab wrote for the panel.

Gutierrez, a 50-year-old Sunnyside man, was tried in October 2020 on charges of first-degree robbery, second-degree assault, first-degree unlawful possession of a firearm and felony harassment. The charges stem from a February 2020 incident in which Sunnyside police allege Gutierrez threatened to kill his stepfather, fired shots into the floor in front of him, and took his stepfather’s phone after refusing Gutierrez’s request for money.

During jury selection, at the Yakima Valley SunDome, Gutierrez’s lawyer, identified in Superior Court documents as Christopher Swaby, questioned one perspective juror who thought Hispanic and Latinx defendants’ citizenship status should be given to the jury, according to a portion of the trial transcript included in the published decision.

The prospective juror said that in two previous cases where he was called in, he was never told if defendants, who were Hispanic, were U.S. citizens.

“How about I ask now if (Gutierrez is) a U.S. citizen,” the juror offered, according to the transcript.

Swaby, the transcript said, told the juror he could not ask that question, and then asked the juror if he could give Gutierrez a fair hearing if he weren’t a U.S. citizen.

“If I didn’t know then I would have — I guess no reason to question that, I guess, if he was a U.S. citizen or not,” the juror replied, according to the transcript. “If he’s not a U.S. citizen he’s already guilty. He shouldn’t be here.”

“Well, fair enough. That’s a good point,” Swaby replied, according to the transcript. “But you wouldn’t be saying then if he’s not a citizen he’s guilty of the charges here, the robbery, the assault, the possession of a gun, you wouldn’t be saying that because that’s wholly separate, right?”

“Yes. Yeah. I mean, if I don’t know — I just — that would be — that wouldn’t be part of the — my answer for it. So, yeah,” the juror replied.

Swaby did not remove the juror for cause or with a peremptory challenge, which allows an attorney to remove a juror from consideration without stating a reason.

Nor did Harthcock comment on what the appellate court described as the juror’s “displayed bias” or remove him, the appellate court noted.

The juror was only identified by his number, 16, in the court records.

The jury acquitted Gutierrez on the robbery charge, but found him guilty on the other charges, and he was sentenced to almost 11 years in prison.

Calling it a “manifest constitutional error,” Staab said that Harthcock could have removed the juror on her own initiative after hearing the juror’s actual bias toward Hispanics and Latinos.

Brusic’s office argued in the appeal that the prosecutor in the case, identified in the trial record as Chief Criminal Deputy Prosecuting Attorney Brian Aaron, believed the juror was asking questions about an irrelevant issue to the case, and that any possible bias had been “cured” by the juror’s answer to Swaby’s questions on whether he could fairly hear the case.

But Staab disagreed with that assessment.

“This does not cure juror 16’s presumption that the citizenship of every Hispanic or Latinx defendant was suspect and needed to be verified,” Staab wrote.

Chief Judge Laurel Siddoway and Judge George B. Fearing concurred with Staab in their own opinions.

While agreeing with the decision to overturn the conviction because of juror bias, Siddoway questioned whether applying state Supreme Court rulings to thoroughly investigate allegations of bias in jury deliberations should extend to the selection process, when the judge is required to only step in if the attorneys failed to resolve the matter.

To do otherwise, she said, could cause judges to take a larger role in jury selection than the state’s highest court intended.

Fearing, in his concurrence, argued that a juror who demonstrates deep-seated bias, even after rigorous questioning, should be discharged.

“The trial court should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing bounds of discretion by permitting such a juror to serve,” Fearing wrote.

Reach Donald W. Meyers at dmeyers@yakimaherald.com or 509-577-7748.

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