Reported / Citable
Background
The Ninth Circuit vacated all 44 convictions against Attila Colar because the trial court did not promptly and adequately investigate an alternate juror who openly expressed bias against Colar’s defense. When that alternate later joined the deliberating jury, the unresolved impartiality problem became structural error—an error affecting the basic framework of the trial—and required a new trial without any separate showing of prejudice.
Federal prosecutors alleged that Colar used stolen identities in a Paycheck Protection Program fraud scheme and obstructed the investigation. Colar, a Black Muslim man representing himself, told prospective jurors that law enforcement had targeted him based on race and religion. Soon after being sworn as an alternate, one juror told the court that Colar’s themes of discrimination, conspiracy, and police corruption angered him, that Colar’s presentation had “no substance,” and that he could not get those reactions out of his head.
The court did not directly ask whether the juror could remain impartial before trial evidence began. It kept him as an alternate and waited until a regular juror became unavailable after trial started. Only then did the court conduct a second inquiry and allow the alternate to join the regular panel. That jury convicted Colar on every count.
The Court’s Holding
In a published opinion, the Ninth Circuit held that once a colorable issue of actual juror bias arises, the trial court must investigate promptly and in a manner proportionate to the concern. Judges retain broad discretion over how to conduct the inquiry, but not whether to conduct one. An alternate’s exposure to evidence and potential replacement of a regular juror make impartiality essential from the outset.
The panel concluded that the juror’s initial statements plainly raised a serious bias issue. Deferring meaningful inquiry allowed him to hear evidence while holding a negative view of the defense. The later colloquy did not clearly establish that he could set aside his earlier judgment: although he said he was “over” the emotional reaction and had no current concerns, the full exchange remained equivocal about whether he had abandoned his conclusion that Colar’s defense lacked credibility.
Because doubts about a juror’s unequivocal commitment to impartiality should have been resolved against continued service, seating the alternate on the deliberating jury was an abuse of discretion. Participation by even one actually biased juror violates the Sixth Amendment and is structural error. In a companion memorandum, the panel nevertheless found the prosecution’s evidence legally sufficient on challenged identity-theft and witness-tampering counts, so the Double Jeopardy Clause does not bar retrial.
Key Takeaways
- A trial judge must investigate promptly whenever a juror’s statements raise a colorable issue of actual bias; waiting to see whether an alternate will be needed is not enough.
- The depth of the inquiry must match the seriousness and specificity of the juror’s expressed concerns.
- A juror’s later assurance of fairness must be evaluated in the context of the entire exchange, particularly any earlier conclusion about a party’s credibility.
- Alternate jurors must remain impartial throughout trial because they may replace regular jurors and participate in the verdict.
- When an actually biased juror deliberates, the error is structural and requires reversal without harmless-error analysis.
Why It Matters
The decision gives California federal trial lawyers a concrete rule for preserving and litigating midtrial bias issues. Counsel should request an immediate, focused inquiry, identify the juror’s exact statements, and ask the court to obtain an unequivocal commitment that the juror can set aside prior judgments and decide only on the evidence and instructions. The same practical concern applies to alternates even before they join the regular panel.
Trial judges have flexibility in phrasing and conducting the inquiry, but delay itself can deepen the problem by allowing a potentially biased juror to hear evidence through a prejudged lens. The published ruling makes clear that administrative convenience cannot displace the defendant’s constitutional right to an impartial jury.