Wednesday, July 1, 2020

Sir William Blackstone "Spinning In His Grave"

The Missouri Supreme Court has affirmed a domestic assault and armed criminal action conviction, rejecting the contention (unpreserved at trial) that a juror should have been disqualified

All parties agree that Juror No. 16 is related to Robert Anthony Farkas, who served as an assistant prosecuting attorney in Pettis County where Brandolese was convicted. Farkas signed the complaint charging Brandolese. Docket entries indicate Farkas appeared on the State’s behalf in Brandolese’s case on March 22, April 12, and May 17, 2016. On June 1, 2016, a grand jury indicted Brandolese.

The relationship is brother and sister.

Farkas did not participate in the trial

Defense counsel did not use a peremptory strike to remove Juror No. 16, and she served on the jury. Brandolese’s claim of error on this issue was not included in his motion for new trial and at no time during the proceedings before this appeal did Brandolese allege Juror No. 16 was statutorily disqualified from serving on the jury pursuant to section 494.070.1.

The court

This Court, however, need not decide whether the circuit court’s failure to sustain Brandolese’s challenge to strike Juror No. 16 for cause violated section 494.470.1 because Brandolese has not demonstrated the alleged error led to manifest injustice warranting plain error review.

A concurring opinion would find the statutory violation but nonetheless affirm.

Draper, C.J., dissented; Breckenridge and Stith, JJ., concurred in the Chief Justice's dissent

The principal opinion’s holding, which condones kin of the assistant prosecuting attorney sitting in judgment on a case in which the assistant prosecuting attorney actively participated in, surely has legal scholar Sir William Blackstone spinning in his grave. Not only is this holding unsupported by centuries-old precedent, Missouri caselaw, or a proper reading of section 494.470.1, RSMo Supp. 2013, under this Court’s rules of statutory construction, but it places burdens upon a defendant that are not required by the statute and reaches a patently absurd result.  Accordingly, I dissent.

(Mike Frisch)

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