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Case 1:20-cr-00330-PAE Document614 _ Filed 02/24/22 Page11of12 notwithstanding these prejudices he is determined to listen to the evidence, and be governed by it; but the law will not trust him.” Burr, 25 F. Cas. at 50. Such a juror “may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice.” Jd. In addition to these situations in which bias must be implied, there are situations where bias may be inferred. “Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.” Torres, 128 F.3d at 47. Here, Juror 50’s media statements establish both implied and inferred bias. The average person who was sexually victimized and had Juror 50’s feelings about the crime and those who complain about it could not be fair, his protestations to the contrary notwithstanding. To borrow Chief Justice Marshall’s phrase, Juror 50 should have been “cautiously incapacitate[d]” from serving on this jury. CONCLUSION The Court should not allow any juror to thwart its screening process by giving inaccurate answers and thereby create such a grave potential, realized in this case, for depriving the defendant of her right to a fair trial. A new trial is required. Respectfully submitted, /s/ Abbe David Lowell Abbe David Lowell (SDNY # AL298/) Joel B. Rudin (SDNY # JR5645) Christopher D. Man Vice Chair, Amicus Curiae Committee, Winston & Strawn LLP NACDL 1901 L Street NW Law Offices of Joel B. Rudin, P.C. Washington, DC 20036152 152 West 57th Street, 8th Floor ADLowell@winston.com New York, New York 10019 (202) 282-5875 jbrudin@rudinlaw.com (212) 752-7600 10 DOJ-OGR-00009118