The Supreme Court has ruled that the seating of a biased juror can violate the constitutional right to an impartial jury. It has stopped short, however, of holding that the violation is so stark as to constitute a “structural error” requiring automatic reversal under the Sixth Amendment, and state courts are divided over whether it rises to that level. This week, we highlight cert petitions that ask the court to consider, among other things, whether the seating of a biased juror is the type of error that always requires a new trial.

​Gene Deveraux was sentenced to 100 years in Montana prison for multiple sexual felonies against his former wife and stepdaughter. During a private meeting with the prosecution, defense, and trial judge, one of the jurors revealed that his girlfriend had been a victim of marital rape. The juror told the defense that he would struggle to remain objective and agreed that he “should not be chosen” for the jury “to be fair to” Deveraux. Having already used all of his peremptory strikes to prevent the selection of other jurors, Deveraux filed a motion to remove the juror “for cause” alleging apparent bias. The judge denied the motion.

It is well known that the First Amendment does not protect speech that constitutes a “true threat.” But the court has never said all that clearly what a “true threat” is. The closest the court has come is Virginia v. Black, where the court wrote that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” The court granted review in Elonis v. United States to resolve an acknowledged circuit split “on the question whether proof of a true threat requires proof of a subjective intent to threaten,” or whether it is enough that an “objectively reasonable person would view [the] message as [a] serious expression of intent to harm.”

The court ultimately decided Elonis on narrow statutory grounds rather than constitutional ones, holding that “a guilty mind is a necessary element” of the federal threat statute. In the years since, Thomas and Justice Sonia Sotomayor have written opinions respecting denial of certiorari arguing the court should “decide precisely what level of intent suffices under the First Amendment.”

Counterman was arrested and convicted under a Colorado law that prohibits “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.”
Counterman argued at his criminal trial that while he was concededly “annoying” and “weird,” it was because he was mentally ill and not because he was trying to distress C.W. The prosecution, correctly summarizing Colorado state law, said that Counterman’s mental state was irrelevant: It was enough if a reasonable person would view his statements as threatening.
​
Counterman argues, supported by two amici, that there continues to be a conflict among the lower courts on an issue that the court deemed certworthy in Elonis.

In any event, we find no error, plain or otherwise. To warrant an instruction on the mistake of fact defense there must be "some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired." United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). While there is no per se requirement an accused testify to establish a mistake of fact defense, evidence that the accused honestly and reasonably believed the victim had consented must come from somewhere. See United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 199). In many cases, the only source of admissible evidence about an accused's subjective belief may well be from the accused himself.