Donnie Ray Pearson v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Donnie Pearson was charged with a sex offense against a child. After voir dire but before the lawyers made challenges and strikes, a juror disclosed in a note that she was molested as a child but thought she could be fair. No one questioned her. Defense counsel did not challenge or strike her, and she served on the jury. On habeas, Mr. Pearson alleged that counsel was ineffective in failing to remove her. The Fifth Circuit held that counsel was not ineffective because the juror was not impliedly biased even though she was a victim of the same type of crime. At least ten federal circuits have recognized the doctrine of implied juror bias as a viable constitutional principle after Justice O’Connor’s concurrence in Smith v. Phillips, 455 U.S. 209, 222 (1982). However, the circuits deeply disagree on how to determine whether a juror who has been the victim of the same type of crime presents the kind of “extreme circumstances” to presume implied bias. Although no court holds that crime-victim status alone, per se, creates implied bias, no clear test guides lower courts on how to determine if a juror is impliedly biased. The question presented is: Whether a juror who has been the victim of the same type of crime as the charged offense is impliedly biased where she does not unequivocally state that she can be fair and impartial.