The argument that courts must probe potential jurors for bias against immigrants or those who don't speak English was met with some skepticism Thursday by the Massachusetts Supreme Judicial Court, as several justices seemed concerned about the implications of imposing a blanket requirement.
The court was hearing oral arguments in the case of Arismendy Espinal, a Spanish-speaking naturalized citizen convicted in 2017 of indecent assault of a minor. Espinal contends the judge at trial should have included a question aimed at detecting bias against non-English speakers during jury selection.
However, the judges pressed Espinal's attorney, Rebecca Kiley of the state Committee for Public Counsel Services, on the case's potential to open the door to requirements on other types of biases, from people who rely on government assistance to people who root for the New York Yankees.
"Where is this going?" Justice Frank M. Gaziano wanted to know.
Espinal was accused of giving a 12-year-old girl a glass of wine and then kissing her while his girlfriend, the girl's longtime babysitter, was out of the room. According to court documents, Espinal then allegedly asked to kiss the girl again after she pushed him away.
Espinal has denied the allegation and has attempted to overturn his conviction based on several more technical grounds, as well as the more expansive question of whether he was denied a fair trial because the judge refused to screen for bias against non-English speakers.
The trial judge rejected Espinal's proposed screening question after noting that he and the victim were both Hispanic.
Immigrant advocacy groups have weighed in on the case, arguing that greater protections are necessary for immigrants and non-English speakers.
At oral arguments, however, judges questioned Kiley about whether the court should issue a blanket requirement, and whether that would deprive trial court judges of necessary discretion. Kiley argued that Espinal was not asking to impose a new rule on trial court judges but merely to enforce existing rules concerning juror bias.
The trial judge's decision not to screen for anti-immigrant bias, she said, should therefore be seen as an abuse of discretion.
Justice Elspeth B. Cypher, however, pointed out that if the court ruled in Espinal's favor on this point, it would need to impose some sort of new rule. "How would we know what makes an abuse of discretion?" she asked. "What are the factors?"
Justice Kimberly S. Budd was similarly critical. "You say you're not looking to impose a new rule," she told Kiley, "but it seems that you are."
Justice David A. Lowy seemed more sympathetic to Kiley's arguments, conceding that it would probably be a good idea for trial judges to screen for anti-immigrant bias, but he, too, expressed reservations about imposing a concrete rule, saying every case is different.
"I'm concerned about imposing on the trial judge's discretion," he said.
The justices questioned Kiley well beyond the time allotted to her, with questions coming quickly from multiple justices.
Justice Gaziano, in particular, pressed the idea of a slippery slope if the court started imposing rules around every potentially common source of bias, and other justices chimed in similarly. Should trial judges be required to screen for bias if someone merely spoke with an accent? If a defendant was a drug addict? If the person was on public assistance?
Kiley tried to keep the session focused on the facts of the Espinal case and to reiterate that bias against immigrants, particularly those who don't speak English, is an attitude one can reasonably expect to find in potential jurors.
"Anti-immigrant bias is still very common in our society," she said, "and there was no effort to guard against that here. I don't see how that can be fair to Mr. Espinal."
The questioning of Catherine Sullivan, an attorney for Massachusetts who spoke after Kiley, was much more relaxed.
Sullivan noted that the state had not been opposed to including a question on bias during the initial screening at Espinal's trial but said that the trial judge should have the right to reject it.
"Intruding on the trial court's discretion is not appropriate here," she said.
The district attorney's office said that it does not comment on pending cases. Kiley did not respond to a request for comment.
--Editing by Brian Baresch.
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