DOJ-OGR-00009834.jpg

Case 1:20-cr-00330-PAE Document643_ Filed 03/11/22 Page 36 of 49 This inquiry should be tightly focused. As a threshold matter, the Court should inquire whether Juror 50’s public statements are true—i.e., whether he was in fact a victim of sexual abuse.'® If the answer is yes, then the Court should determine why Juror 50 nevertheless answered “no” to Question 48. Finally, the Court should ask such questions as to permit it to make the hypothetical determination posed by McDonough’s second prong: If Juror 50 had accurately answered Question 48, would the Court have struck him for cause? On this last subject, the defendant claims that had Juror 50 answered Question 48 in the affirmative, the Court and the parties would have “probed” him about various topics, which the defendant suggests are necessary topics of examination. (Def. Mem. at 44). The record refutes that assertion, and inquiry along the lines proposed by the defendant is not necessary. The defendant argues that the Court would have inquired whether Juror 50 was able to assess the credibility of a witness claiming sexual assault or abuse just like he would any other witness. (/d.). As an initial matter, Juror 50 already stated in the juror questionnaire that he could assess the credibility of a witness claiming sexual assault or abuse just like he would any other witness. (Def. Ex. 1, Question 47). Moreover, the Court did not ask jurors who answered Question 48 in the affirmative any follow up questions about Question 47. Accordingly, there is no need to inquire about this subject any further at a hearing, beyond perhaps reaffirming that Juror 50’s answer to Question 47 was correct. ‘6 The Court need not inquire about the details of the victim’s sexual abuse, just as the Court did not probe such details with respect to other jurors who answered Question 48 affirmatively. (See Nov. 16, 2021 Tr. at 18-19, 52-57, 200, 207-08, 259, 293, 532, 635). In the event the Court believes that details need to be elicited, beyond those few details Juror 50 has provided publicly, such inquiry should be conducted at sidebar or in camera. See Janniello, 866 F.2d at 544; Shakur, 723 F. Supp. at 928. 34 DOJ-OGR- 00009834