Brian Keith Gorham v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Gorham will present three brief statements with three concise ques­ tions for this Honorable Court's review. Gorham alleged multiple Sixth Amendment rights violations: first, the right to "an impartial [and legitimate] jury[:]" Because one juror, through deceit on voir dire, had gained a seat on the jury, though be­ cause of past and present criminal entanglements-even as the jury was seated he was facing revocation of probation and a ten year prison sentence-for crimes including those of moral turpitude (i.e., aggravated assault with a deadly weapon against a woman and child), who was cate­ gorically absolutely disqualified from jury service by constitutional as well as statutory law, had been erroneously empanelled; second, his right to an impartial jury was again violated, when the Court, upon learning of this error, in blatant violation of established .law, disregarded the implied bias which the situation presented, maintained him on Gorham's jury and moved his trial forward rather than dismissing the disqualified juror and sua sponte declaring a mistrial; and third, the right to eff­ ective assistance of counsel during direct appeal, when appellate counsel failed to raise the Court's abuse of discretion for not sua sponte call­ ing a mistrial. Gorham was then illegally convicted by a jury of ill­ egitimate composition- eleven qualified and one absolutely disqualified jurors. The bias implied when an unqualified juror is empanelled impugns all confidence in a fair trial and a just result. In finding that Gorham had failed to show a valid claim of the denial of a constitutional right, the Fifth Circuit relied upon the standard promulgated in Slack v. McDonal,529 U.S. 473,484(2000),but wholly misapplied it to Gorham's case. This case presents the following questions Did the Fifth Circuit err in finding that no prejudice towards Gorham emanated from the bias implied by an absolutely unqualified juror being seated onbhis jury; from the Court's abuse of discretion in not sua sponte dismissing said unqualified juror and declaring a mistrial; and , from appellate counsel's failure to address the Court's abuse of discretion in this matter at that venue?