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Case 1:20-cr-00330-PAE Document616- Filed 02/24/22 Page 11 of 32 childhood sexual abuse; and (3) had he answered the questions accurately he would have been challenged for cause and disqualified. The Law I. Ms. Maxwell is entitled to a new trial. A. The government’s policy concerns—the abstract interest in “finality” and the so-called “disfavor” with which new trial motions are viewed— are misplaced. The government’s response is conspicuous in that it does not begin with the law governing new trial motions based on juror bias. Instead, the government sets the table with appeals to “finality,” statements that new trial motions are “disfavored,” and implications that courts should turn a blind eye to juror misconduct because to do otherwise would expose jurors to harassment and intimidation. Resp. at 10-11. None of these concerns has any purchase here. In the government’s view, the jury in this case “finally” determined Ms. Maxwell’s guilt. To be entitled to a new trial, says the government, “a district court must find that there is ‘a real concern that an innocent person may have been convicted.’” Resp. at 10 (quoting United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001))). That is not correct. Everyone accused of a crime is entitled a trial by a fair trial and impartial jury. U.S. Const. amends. V, VI. That constitutional promise demands twelve fair and impartial jurors. Parker, 385 U.S. at 366. “[T]he seating of any juror who should have been dismissed for cause” is structural error and it “require[s] reversal.” Martinez-Salazar, 528 U.S. at 316; United States v. Nelson, 277 F.3d 164, 204 (2d Cir. 2002) (“[T]he empanelment of a jury on which [a] biased juror sat [means that] the defendants in this case were convicted, in contravention of the Sixth Amendment and due process, by a jury that cannot be deemed to have been fully impartial.”). DOJ-OGR-00009201