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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 06-APR-2023 07:50 AM Dkt. 33 OPCD
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
BRANDON FETU LAFOGA and RANIER INES, also known as Schizo, Petitioners/Defendants-Appellants.
SCWC-XX-XXXXXXX
CERTIORARI FROM THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX; CASE NO. 1PC161001176)
APRIL 6, 2023
CONCURRING AND DISSENTING OPINION BY WILSON, J., ASSIGNED BY REASON OF VACANCY
I. INTRODUCTION
The Majority condones an anonymous jury1 that violates
the defendants’ fundamental right to twelve impartial judges of
1 “Anonymous jury” is the appropriate categorization of the jury empaneled in the instant case. The term “anonymous jury” encompasses “various situations where courts withhold juror information”:
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the facts guaranteed to them by the sixth amendment of the
United States Constitution and article I, section 14 of the
Hawaiʻi Constitution. By assuming, without evidence, that the
defendants are perceived as dangerous by the twelve citizens who
will decide their guilt or innocence, the Circuit Court of the
...continued
For example, in State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (Neb. 2010), the court explained, “[t]he term ‘anonymous jury’ encompasses the withholding of a broad spectrum of information. Generally, an ‘anonymous jury’ describes a situation where juror identification information is withheld from the public and the parties themselves. The least secretive form of an anonymous jury is where only the jurors’ names are withheld from the parties. This procedure may also be called an innominate jury or, if jurors are referred to by number rather than name, a numbers jury.” Here, we refer to what the County Court did as empaneling an anonymous jury, because the court referred to the prospective jurors by assigned numbers and not by their names.
People v. Flores, 62 N.Y.S.3d 68, 73–74 (N.Y. App. Div. 2017), aff’d, 114 N.E.3d 141 (N.Y. 2018) (cleaned up and emphases added).
The jury in the instant case is thus properly classified as an anonymous jury, where the jurors’ names and personal information were withheld from the defendants, the public, and the press, and jurors were referred to by number only. See id. (“Here, we refer to what the County Court did as empaneling an anonymous jury, because the court referred to the prospective jurors by assigned numbers and not by their names.”) (emphasis added). The Majority incorrectly concludes that the jury was not anonymous. The Majority claims that “[t]his case’s jury is better described as a confidential jury” that “withholds a juror’s name from the public, but not the parties.” The Majority’s characterization of the record is incorrect. Defendants Brandon Lafoga and Ranier Ines were completely denied access to any part of the prospective jurors’ names. Such a misinterpretation of the record ignores the threat to a fair trial posed by keeping anonymous the quintessential information needed by the accused to determine if the judge is fair—the identity of the twelve people sitting in judgment.
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First Circuit (“circuit court”)2 also deprived defendants of the
constitutional right to be presumed not guilty in violation of
article I, section 14 of the Hawaiʻi Constitution. The
unjustified withholding of jurors’ names from the defendants
further violated article I, section 14 of the Hawaiʻi
Constitution by unduly restricting voir dire, which deprived the
defendants of effective assistance of counsel. In addition, the
circuit court’s belief that the jurors would be afraid to serve
on this jury infers that the defendants were deprived of their
right to an impartial judge, in violation of article I, section
5 of the Hawaiʻi Constitution. Each of these errors are
structural.
Structural error is an error of magnitude that
threatens the very fairness of the trial process. No
justification or evidentiary weighing can render the breach of
such fundamental fairness inconsequential. The error cannot be
justified on appeal by a finding that the error was “harmless”.
Structural error “‘affec[ts] the framework within which the
trial proceeds,’ and is not simply ‘an error in the trial
process itself.’” State v. Reed, 135 Hawaiʻi 381, 386, 351 P.3d
1147, 1152 (2015) (citing State v. Ortiz, 91 Hawai‘i 181, 193,
2 The Honorable Paul B.K. Wong presided.
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981 P.2d 1127, 1139 (1999) (quoting Arizona v. Fulminante, 499
U.S. 279, 310 (1991))). The commission of structural error
requires that the victim of the error receive a new trial.
Secreting the identity of judges erodes public
confidence in our judiciary. Any attempt to do so requires this
court’s highest scrutiny. Without any evidence of danger posed
by the defendants to the jury, the court cannot contravene the
presumption of innocence by creating an atmosphere of presumed
guilt as an excuse to conduct the adjudication of guilt behind
the cloak of anonymity. The tradition of identified judges and
jurors is a centerpiece of fairness in our criminal justice
system. A defendant has “a right to a jury of known individuals
. . . because the verdict is both personalized and personified
when rendered by 12 known fellow citizens.” United States v.
Sanchez, 74 F.3d 562, 565 (5th Cir. 1996). The circuit court’s
failure to honor Brandon Lafoga’s and Ranier Ines’
constitutional rights to (1) the presumption of innocence, (2)
an impartial jury, (3) the effective assistance of counsel, and
(4) an impartial tribunal is an abuse of discretion that
necessitates a new trial for defendants. I respectfully
dissent.
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II. DISCUSSION
A. The circuit court violated the defendants’ presumption of innocence and the right to an impartial jury.
Approximately two weeks before trial in the instant
case, the circuit court sua sponte insisted on redacting all
identifying information about prospective jurors from the juror
questionnaires provided to the parties. With no explanation as
to why, the circuit court informed the prosecutor, defense
counsel and defendants that the prosecution and defense counsel
would receive the prospective juror questionnaires, yet “all
identifying information will be redacted: phone numbers, street
addresses, zip codes and their towns . . . and [c]ourt will
redact their names as well.” (emphasis added). Prospective
jurors would be referred to by number only.
The unilateral action of the judge was immediately
recognized by the attorneys as improper. The prosecution
objected to the anonymous jury on the grounds that the process
was incredibly dehumanizing to the jurors, telling the court “I
do object to that because I think it's incredibly -- in my
respectful opinion, I think it's dehumanizing.” Ines’ counsel
joined the prosecution’s objection, adding her specific concerns
that the parties needed to know who the prospective jurors were
in order to effectively prepare for voir dire, and identify any
potential bias in the jury. To that end, Ines’ counsel informed
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the circuit court “I do agree with [the prosecution’s] concern.3
But if -- my concern is, we need to know who [the jurors] are
for our research purposes and preparing voir dire. In other
words, is there a conflict of interest or potential conflict of
interest? Do I know the juror, that’s what I’m mainly concerned
about.” (Emphases added). In an attempt to obtain the names of
the jurors for all parties, Ines’ counsel assured the circuit
court that she would have no objection if the judge simply
“prefers that we not say the juror’s name on the record[.]” The
circuit court still insisted on withholding the jurors’ names.
For the State and the defense, it was clear: because
there was no indication that the jurors would be afraid of the
defendants, there was no reason to deprive the defendants of
knowledge of the names of the twelve judges of the facts.
Because the circuit court insisted on juror anonymity, the
prosecution inquired as to why. Without pointing to any
evidence, inference, or allegation of any potential threat to
the jury, the judge explained: “I’m trying to head off a juror
in this panel saying, I’m afraid to serve.”
3 It is clear that Ines’ counsel immediately joined the prosecution’s objection to an anonymous jury with the phrase “I agree with [the prosecution’s] concerns” followed by additional reasons why the court’s anonymous jury was objectionable (including counsel’s need to prepare for voir dire, and to identify any conflicts of interests).
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In response to the circuit court’s groundless
insistence on an anonymous jury, Ines’ counsel again sought to
minimize prejudice to the defendants. To that end, Ines’
counsel requested that the circuit court at least supply the
names of the prospective jurors to counsel, who would then be
required to keep the names secret from the defendants. The
circuit court ultimately agreed: it would provide to the
prosecution and defense attorneys the list of prospective
jurors’ names with “street addresses and telephone numbers still
redacted.” In so doing the circuit court immediately acted in
favor of the government. The prosecution was permitted to know
the identity of the twelve judges of the facts; the defendants
themselves were not. Preserving this imbalance, the circuit
court instructed defense counsel to keep the names of the jurors
secret from their clients: the jurors would remain anonymous to
the defendants, the public, and the press…but not to the
prosecution.
Faced with the circuit court’s insistence on
anonymity, Ines’ counsel made one final effort to mitigate the
prejudice to the defendants the anonymous jury would pose.
Specifically, she requested that the circuit court take the
reasonable precaution to “explain[] to the jury the reason why”
they would be referred to by number only “and that it’s not
meant to be offensive.” (Emphases added). The judge declined
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this request, stating that while he would explain to the jurors
that they would be given numbers, he would not provide a
rationale to the jury for why their identities would be kept
anonymous: “I don't want to give them the [c]ourt’s rationale
as to why we’re not referring to their names in court.”
(Emphasis added).
Over objection of counsel the jurors’ names and
personal identifying information were completely concealed by
the court from all persons and parties to the case, other than
the circuit court and counsel, and the jurors were not to be
given an explanation as to why.
Thus, Lafoga and Ines were deprived of the critical
knowledge of the identity of the twelve judges who sat as jurors
to determine whether they were guilty or innocent of the array
of charges brought against them: attempted murder in the second
degree, conspiracy to commit murder in the second degree,
kidnapping, robbery in the first degree, carrying or use of
firearm in the commission of a separate felony, and ownership or
possession prohibited of any firearm or ammunition by a person
convicted of certain crimes (felon in possession). The ordinary
maximum sentences for these charges ranged from five-year to
twenty-year terms of imprisonment; extended maximum sentences
would expose the defendants to life in prison without the
possibility of parole.
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The twelve judges who were never known to the
defendants ultimately found them guilty.4 In accordance with the
further request of the prosecutor who was privy to their
identity, the twelve people who anonymously declared the
defendants guilty thereafter also adjudged them eligible for
extended life sentences without the possibility of parole.
1. The anonymous jury violated the defendants’ presumption of innocence.
Here, the circuit court decided that juror anonymity
was necessary to prevent prospective jurors from saying they
were “afraid to serve.” Yet there was no evidence in the record
to support this presumption. There was simply no basis for the
judge to assume that the prospective jurors had any reason to
believe that their fellow members of the community, who were
presumed innocent, posed any threat to the jury at all. There
was no inference or allegation that the defendants would attempt
to harm, or tamper with, the jury. Likewise, there was no
inference or allegation that the defendants would attempt to
4 The jury found Lafoga guilty of attempted murder, use of firearm in a separate felony, kidnapping, and felon in possession of a firearm. Answering a special interrogatory, the jury found that the kidnapping count merged with the attempted murder count, and later the court dismissed the kidnapping charge. The jury found Ines guilty of accomplice to attempted murder, kidnapping, and robbery in the first degree. Answering a special interrogatory, the jury found that the kidnapping and robbery counts merged with the accomplice to attempted murder count, and later the court dismissed the kidnapping and robbery charges.
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harm or interfere with any witnesses, or the judicial process.
Further, there was no indication that jurors would be subjected
to the type of extensive publicity that might bring about
intimidation and harassment from the media, and/or the public.
As such, the circuit court erroneously imposed juror anonymity
in the instant case, and unjustifiably impaired the defendants’
presumption of innocence in the process.
The Majority and the ICA concede that the circuit
court had no basis to believe anonymity was required to protect
the jury, and that an anonymous jury should not have been
ordered. Specifically, the ICA held that the circuit court’s
belief that jurors would be “afraid to serve” was “insufficient
to establish a ‘strong reason to believe that the jury needs
protection’ to justify the modified jury procedure used in this
case.” (Emphasis added). The Majority agreed, referring to the
circuit court’s belief as a mere “hunch” for which there was “no
strong, evidence-rooted reason[.]” (Emphasis added). The
Majority further expressed concern that “[t]he court should’ve
handled this jury selection like any trial[.]” Nonetheless, the
Majority concluded the action of the circuit court was of no
consequence. Respectfully, the sua sponte action of the circuit
court violated the defendants’ constitutional right to be
presumed innocent by imposing, without justification, an
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anonymous jury that inferred the defendants’ dangerousness and
guilt.
The presumption of innocence is “the undoubted
law, axiomatic and elementary[.]” Coffin v. United States, 156
U.S. 432, 453 (1895). The presumption of innocence is “vital
and fundamental[.]” Id. at 460. It is “a basic component of a
fair trial under our system of criminal justice.” Estelle v.
Williams, 425 U.S. 501, 503 (1976). As such, “its enforcement
lies at the foundation of the administration of our criminal
law.” Coffin, 156 U.S. at 453.
Protecting the presumption of innocence was a
signature issue in State v. Samonte, 83 Hawaiʻi 507, 928 P.2d 1
(1996), where the trial court empaneled a partially anonymous
jury in response to demonstrated jury tampering. Even under
such circumstances, the Samonte court recognized that an
anonymous jury jeopardizes a defendant’s “constitutional right
to a presumption of innocence” by inferring the defendant is
guilty or dangerous. Samonte, 83 Hawaiʻi at 519, 928 P.2d at 12–
13 (“[a]n anonymous jury raises the specter that the defendant
is a dangerous person from whom the jurors must be protected,
thereby implicating the defendant's constitutional right to a
presumption of innocence.”) (citation omitted and emphasis
added). In order to protect the presumption of innocence, the
Samonte court applied a now-settled two-part test (the
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“anonymous jury test”) to determine the degree to which the
presumption of innocence can be impaired by the empaneling of an
anonymous jury. See id. at 520, 928 P.2d at 14. The anonymous
jury test prohibits the withholding of jurors’ names from a
defendant without: (1) a “strong reason to believe that the
jury needs protection” and (2) “taking reasonable precautions to
minimize any prejudicial effects on the defendant and to ensure
that his fundamental rights are protected.” Id.
In contrast to Samonte, where jury tampering supplied
the “strong reason” to justify juror anonymity, the circuit
court here had no justification at all to believe anonymity was
required to protect the jury. Thus, the circuit court withheld
the jurors’ names from the defendants’ without demonstrating any
threat to juror safety. It is therefore indisputable that the
circuit court failed to satisfy the first prong of the anonymous
jury test. Because there was no strong reason to withhold juror
names from the defendants, the defendants’ “right to be tried
before a panel of identified jurors was not required to be
sacrificed in this case.” Sanchez, 74 F.3d at 565.
Failing the first prong of the Samonte anonymous jury
test constitutes structural error and is not subject to harmless
error review. See id. (empaneling an anonymous jury without
evidence it was warranted was not subject to harmless error
review). Without any strong reason for doing so, the trial
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court cannot sua sponte reengineer the structural framework of a
fair trial, and sweep away constitutional protections
specifically devised to protect the right to a fair trial. See
Flores, 62 N.Y.S.3d at 74, 76 (harmless error did not apply
where the anonymous jury was empaneled without “good cause[.]”).
Where the extreme prejudice to the defense caused by the
imposition of an anonymous jury is not justified pursuant to the
first factor of the anonymous jury test, consideration of the
second factor is precluded. See Sanchez, 74 F.3d at 565
(empaneling an anonymous jury without justification was not
subject to harmless error review; no further analysis as to
whether the district court took reasonable precaution to
mitigate any prejudice to the defendant was required to vacate
the conviction and reverse).
Because the Majority found no justification for the
circuit court’s empaneling of an anonymous jury, harmless error
does not apply, and the Majority should not have proceeded to
second prong of the anonymous jury test to consider whether the
circuit court’s error could be deemed harmless. See id.
Therefore, the following analysis is provided only to further
demonstrate that imposition of the anonymous jury fails the
second prong of the anonymous jury test as well.
Here, the circuit court imposed an anonymous jury
without legal justification, and thereafter took no action to
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mitigate against a juror’s inference that juror anonymity was to
protect them from “threats from the criminal defendant[.]”
Samonte, 83 Hawaiʻi at 522, 928 P.2d at 16. Because “[a]n
anonymous jury raises the specter that the defendant is a
dangerous person from whom the jurors must be protected,” id. at
519, 928 P.2d at 12, a “plausible and nonprejudicial reason” for
why the jurors are to be anonymous must be explained to jurors.
This is to mitigate the impact of the anonymous jury on the
defendant’s presumption of innocence. Id. at 516, 928 P.2d at
22. As set forth above, defense counsel specifically requested
that the circuit court provide the jurors with a reason as to
why they were anonymous, and let the jurors know “it’s not meant
to be offensive.” The circuit court explicitly refused to do
so, stating “I don’t want to give them the [c]ourt's rationale
as to why we’re not referring to their names in court.” The
record further reflects that the circuit court failed to supply
the jury with any reason for why the jurors were to be
anonymous, let alone a “plausible and nonprejudical reason.”
Id. The judge’s refusal to supply the jurors with any
explanation for their anonymity illustrates that the circuit
court failed to “decrease[] the probability that the jurors
would infer that the defendant is guilty or dangerous[.]” Id.
at 522, 928 P.2d at 16. As such, the circuit court clearly
failed the second prong of the Samonte test, which requires the
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trial court to “take reasonable precautions to minimize any
prejudicial effects on the defendant, and to ensure that his
fundamental rights were protected.” Id. at 520, 928 P.2d at 14.
The Majority holds that the circuit court took the
reasonable precaution of providing jurors with a “plausible and
non-prejudicial reason” for their anonymity, and that the
circuit court’s error in withholding jurors’ names without
“strong reason” was therefore harmless. To support its holding,
the Majority acknowledges that Samonte instructs trial courts to
provide anonymous jurors with the highly specific “plausible and
non-prejudicial reason” that the jurors’ anonymity is to
“protect the jurors from contacts by the news media, thereby
implying that juror anonymity is not the result of threats from
the criminal defendant[.]” Id. at 522, 928 P.2d at 16 (emphasis
added). The Majority thereafter concludes, without analysis or
explanation, that “[h]ere, the trial court used Samonte’s media-
centered alternative reason to explain the confidential jury
method[.]” The record does not support the Majority’s
assertion.
The record is devoid of any language that purports to
explain to the jury that they are anonymous for purposes of
protecting them from being contacted by the media. The Majority
appears to argue that the following circuit court instructions
to the seated jury supplied the prospective jurors with
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“Samonte’s media-centered alternative reason” as to why they
were to remain anonymous:
Ladies and gentlemen, also, as we continue through this trial, you are going to be referred to by your juror number as well as your chair number. Your names are not made part of the public record of this case. You already see that there is a camera here in the courtroom. While they are permitted to cover the proceedings, the press is not allowed to have any likeness of yours, so they can’t take any pictures of you, they cannot take any video of you, they cannot depict the jury in this case. So in addition to your names, your likeness will not be made part of the public record or available to the public in any way in this case.
As the plain language makes clear, there is no basis to infer
from this statement that the circuit court explained to the jury
their anonymity was required to “protect the jurors from being
contacted by the news media.” The court’s statement to the
seated jury merely mentions the camera’s presence in the
courtroom, and sets forth the camera’s prohibitions against
capturing any juror likeliness. There is no language with
respect to any concerns that the media may attempt to contact
the jurors. There is no rationale supplied in this statement as
to why juror anonymity is required. Without a plausible and
nonprejudicial reason for juror anonymity, the jury is left with
the unmitigated inference of the defendants’ dangerousness and
To be clear, none of the language in the circuit
court’s statement infers the jury needs protection from the
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media. There is no language with respect to protecting the
jurors’ phones from ringing, or their doors from being knocked
on, or jurors being approached and/or contacted in any way by
anyone, let alone the media. As such, this statement does not
supply the Samonte-required explanation to the jury that the
reason for their anonymity is “to protect the jurors from
contacts by the news media, thereby implying that juror
anonymity is not the result of threats from the criminal
defendant.” Samonte at 522, 928 P.2d at 16.
Therefore, the circuit court did not “use[] Samonte’s
media-centered alternative reason to explain” anonymity to the
jurors. The Majority points to no other support for inferring
that the circuit court took reasonable precautions to mitigate
the prejudice of an anonymous jury in the instant case. The
record demonstrates that the circuit court plainly failed to
provide any plausible alternative explanation to the jury as to
why their names were being withheld. Because the trial court
did nothing to mitigate against a juror’s inference that juror
anonymity is to protect them from “threats from the criminal
defendant[,]” the trial court clearly failed the second prong
of the Samonte anonymous jury test as well. Samonte at 522, 928
P.2d at 16.
Depriving a defendant of the presumption of innocence
without “strong reason” and without taking “reasonable
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precautions” to “minimize any prejudicial effects on the
defendant” constitutes structural error. See Flores, 62
N.Y.S.3d at 74, 76-77 (the empaneling of an anonymous jury
without cause and without reasonable precaution was not subject
to harmless error analysis). Under both prongs of the anonymous
jury test articulated in Samonte, the circuit court’s decision
to empanel an anonymous jury cannot be upheld.
2. The anonymous jury violated the defendants’ right to an impartial jury.
The circuit court’s insistence on juror anonymity
without cause also violated the defendants’ right to an
impartial jury. As set forth above, defense counsel objected to
the anonymous jury, arguing that jurors’ names were essential to
ensuring an impartial jury could be empaneled: “[W]e need to
know who [jurors] are for our research purposes and preparing
voir dire. . . .[I]s there a conflict of interest or potential
conflict of interest? Do I know the juror[?] [T]hat’s what I’m
mainly concerned about.” (cleaned up and emphasis added).
Notwithstanding the clear articulation of need by defense
counsel, the circuit court was unbending in its insistence that
defendants would be precluded from learning the identity of the
jurors. Thus, the circuit court declined defense counsel’s
well-articulated request to supply the defendants with the
jurors’ names in order to procure an unbiased jury. By denying
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the defendants the names of the jurors, the circuit court
severely restricted the defendants’ ability to assist counsel
with voir dire, and vet prospective jurors for potential
prejudice. By removing an essential tool of the defense to
obtain a fair jury, the court violated the defendants’
constitutional right to an impartial jury.
“As with the presumption of innocence, the right of
trial by an impartial jury is guaranteed to a criminal defendant
by the state constitution (Art. I, Sec. 11)5 and by the Sixth
Amendment of the federal constitution as applicable to the
States through the Fourteenth Amendment, as well by principles
of due process under both the state and federal constitutions.”
State v. Pokini, 55 Haw. 640, 526 P.2d 94 (1974). Protecting
the right to an impartial jury was another signature concern of
this court in Samonte. Specifically, the Samonte court warned
that juror anonymity impairs a defendant’s rights to an
impartial jury by adversely affecting voir dire: “a criminal
defendant has a constitutional right to an impartial jury. We
are ... mindful of the fact that juror anonymity denies a
defendant information that might be helpful in the exercise of
his or her right to utilize peremptory challenges during voir
5 These rights now reside in article I, section 14 of the Hawaiʻi Constitution.
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dire.” Samonte, 83 Hawaiʻi at 519, 928 P.2d at 13 (internal
quotations and citations omitted and emphases added).
Because the circuit court here withheld the jurors’
names from the defendants, the defendants were denied the
“constitutional guarantee . . . of an impartial jury.” Id. By
contrast, even in Samonte, where anonymity was deemed justified
due to jury tampering, the defendant was not deprived of the
learning the identities of the jurors. “The parties [including
the defendant] knew the last names of the jurors.” Id. Thus,
the defense “was able to exercise peremptory challenges and
conduct a thorough voir dire because the jury was not completely
anonymous.” Id. at 522, 928 P.2d at 16. Because the defendant
“knew the last names of the jurors[,]” Samonte’s voir dire was
not unduly restricted. The same cannot be said for the
defendants in the instant case.
Voir dire is the structural process through which the
constitutional right of trial by an impartial jury is given
effect. To protect the integrity of the voir dire process, the
legislature provides defendants in Hawaiʻi with the statutory
right “to examine a proposed juror as to the proposed juror’s
qualifications, interest, or bias that would affect the
trial[.]” Hawaiʻi Revised Statutes (“HRS”) § 635-27 (emphasis
added). A prospective juror’s name is essential for examining a
prospective jurors’ “qualifications, interest, or bias.” Id.
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As such, the name of a prospective juror is likely to be the
most important piece of information the accused can apply in
voir dire to empanel an impartial jury. In recognition of the
fundamental importance of juror identity to the attainment of a
fair trial, the legislature acted to compel the disclosure of
prospective jurors’ names to defendants in a criminal trial.
Pursuant to HRS § 612-18(c), “the names of prospective jurors to
be summoned to sit as a jury, and the contents of juror
qualification forms completed by those jurors, shall be made
available to the litigants concerned.” (Emphases added). It is
beyond question that this statutory mandate compelling
disclosure of juror names to defendants at trial protects
substantive rights: this court in Samonte specifically
emphasized that “the purpose of HRS § 612–18(c) is to uphold a
criminal defendant’s constitutional guarantees of a presumption
of innocence and an impartial jury[.]” Samonte, 83 Hawaiʻi at
519, 928 P.2d at 13 (emphasis added). The import of HRS § 612–
18(c) with respect to empaneling an impartial jury is clear:
making the names of prospective jurors available to the accused
is essential to ensuring the defense is able to sufficiently
probe the prospective jurors for potential prejudice.
The defendants in the instant case were thus denied
the ability to sufficiently discern bias in the jury pool. The
defendants were placed at a greater disadvantage than the
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defendant in Samonte, where it was determined that jury
tampering justified juror anonymity. Because Samonte was
supplied the last names of the prospective jurors, the Samonte
court held that “the trial court took reasonable precautions to
minimize any prejudicial effects on Samonte and to ensure that
his fundamental rights were protected.” Id. at 523, 928 P.2d at
17. Conversely, there was no justification in the instant case
to empanel an anonymous jury. Nor were there any “reasonable
precautions” taken by the circuit court to “minimize any
prejudicial effects on the defendant[s]” to “ensure that [their]
fundamental rights [were] protected[.]” Id. at 521, 928 P.2d at
15.
Here, the circuit court completely withheld every part
of the jurors’ names from the defendants without legal
justification. As noted, compounding the error, the circuit
court then did nothing to mitigate a juror’s inference that
juror anonymity is to protect them from “threats from the
criminal defendant.” Id. at 522, 928 P.2d at 16.
As with the presumption of innocence, depriving the
defendants of their right to an impartial jury without “strong
reason” and without taking “reasonable precautions” to “minimize
any prejudicial effects on the defendant” further constitutes
structural error. See Flores, 62 N.Y.S.3d at 74, 76-77 (the
empaneling of an anonymous jury without cause and without
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reasonable precaution was not subject to harmless error
analysis). Under the anonymous jury test articulated in
Samonte, the circuit court’s decision to empanel an anonymous
jury stripped defendants of rights fundamental to their
receiving a fair trial.
B. The trial court committed structural error by denying defendants’ effective assistance of counsel and unduly restricting voir dire.
The same facts that constituted a deprivation of the
defendants’ rights to an impartial jury constituted a
deprivation of the right to counsel by (1) impermissibly
interfering with defense counsel’s ability to conduct and
control the defense strategy, (2) unduly restricting voir dire,
and (3) preventing the defendants from “participat[ing] fully
and fairly in the adversary factfinding process.” Herring v.
New York, 422 U.S. 853, 858 (1975).
The right to effective assistance of counsel includes
the right to conduct and control defense strategy. Strickland
v. Washington, 466 U.S. 668, 686 (1984) (“Government violates
the right to effective assistance when it interferes in certain
ways with the ability of counsel to make independent decisions
about how to conduct the defense.”) (emphases added). Court
restrictions on representation constitute impermissible
interference with defense counsel. Herring, 422 U.S. at 857
(“[T]he right to the assistance of counsel has been understood
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to mean that there can be no restrictions upon the function of
counsel in defending a criminal prosecution[.]”) (emphasis
added). Preventing a defendant from participating fully and
fairly in their defense also violates the right to effective
assistance of counsel. Id. at 858 (“The right to the assistance
of counsel has thus been given a meaning that ensures to the
defense in a criminal trial the opportunity to participate fully
and fairly in the adversary factfinding process.”) (emphasis
added). Hawaiʻi courts have recognized that “[t]he sixth
amendment and article I, section 14 of the Hawaiʻi Constitution
guarantee an accused the right to the assistance of counsel in
his or her defense, ... as well as the right to present
a defense.” State v. Vliet, 91 Hawaiʻi 288, 294, n. 3, 983 P.2d
189, 195, n. 3 (1999) (internal citations omitted). “[T]he
defendant has a constitutional right under the sixth amendment
to offer a defense, and, as an adjunct to this right, to devise
a proper and appropriate trial strategy to blunt or otherwise
neutralize the thrust of the prosecution’s case-in-chief.”
State v. Kupau, 10 Haw. App. 503, 516, 879 P.2d 559, 565
(1994), aff’d and remanded, 76 Hawaiʻi 387, 879 P.2d 492 (1994).
Here, the court’s anonymous jury restricted the
function of defense counsel, and prevented the defendants from
“participat[ing] fully and fairly” in their defense. Herring,
422 U.S. at 858. By requiring defense counsel to keep the names
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of prospective jurors secret from their clients, the court
interposed a firewall between counsel and their clients that (1)
precluded their ability to communicate to each other about trial
strategy and controlling their defense, and (2) destroyed their
ability to effectively engage in voir dire.
This court has recognized that “the erroneous
deprivation of the right to counsel under article I, section 14
of the Hawaiʻi Constitution is a structural error not subject to
harmless error analysis[.]” Akau v. State, 144 Hawaiʻi 159, 162,
439 P.3d 111, 114 (2019). As such, “no showing of prejudice is
required[.]” Id. The unjustified withholding of jurors’ names
effected a court-imposed restriction on voir dire that precluded
the defendants from “participat[ing] fully and fairly” in the
jury selection process. Herring, 422 U.S. at 858. Because the
jurors’ names were withheld from the defendants, they were
rendered unable to assist counsel in the development of defense
strategy by conducting voir dire with information critical to
the selection of twelve fair judges of the facts. Because the
defendants did not know who the prospective jurors were,
defendants could not “participate fully and fairly” in the
defense strategy aimed at discovering whether a prospective
juror may be prejudiced on the basis of knowledge of, or
relationships with, the defendants themselves, and/or potential
witnesses. Id. The defendants were thus deprived of the
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effective assistance of counsel, and harmless error does not
apply. Akau, 144 Hawaiʻi at 162, 439 P.3d at 114. Id.
Additionally, because the jurors were kept anonymous from the
defendants, it cannot be known whether the jurors were
prejudiced against the defendants due to a negative interaction
with a potential juror in the past. This court has considered
that “an error may be properly considered structural when the
impact of the error on conviction is impossible to reliably
assess and when harmless error review would require the
appellate court to engage in pure speculation.” State v. Loher,
140 Hawaiʻi 205, 222, 398 P.3d 794, 811 (2017). Because there is
no way of “reliably assessing” the impact of the circuit court’s
error in the instant case, harmless error review would require
the court to “engage in pure speculation” about whether any of
the prospective jurors harbored such undetected bias towards the
defendants. Id. Accordingly, harmless error analysis does not
apply.
The withholding of the jurors’ names from the
defendants also constituted an impermissible interference with
defense counsel’s ability to control the defense. Strickland v.
Washington, 466 U.S. at 686 (“Government violates the right to
effective assistance when it interferes in certain ways with the
ability of counsel to make independent decisions about how to
conduct the defense.”). Because the circuit court withheld the
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jurors’ names from the defendants, the defense attorneys could
not seek and obtain key information from defendants about
prospective jurors that would shape and inform trial strategy;
this was a “restriction[n] on the function of counsel” and trial
strategy was thus impaired. Herring, 422 U.S. at 857. Because
defense counsel lost the ability to consult with their clients
about discerning potential prejudice in the jury pool, counsel
was no longer able to “make independent decisions about how to
conduct the defense.” Strickland v. Washington, 466 U.S. at
686.
The deprivation of the defendants’ right to counsel
again constitutes structural error “not subject to harmless
error analysis[.]” Akau, 144 Hawaiʻi at 162, 439 P.3d at 114.
As such, “no showing of prejudice is required[.]” Id.
C. The trial court committed structural error by denying the defendants an impartial tribunal.
The circuit court judge explained that he empaneled an
anonymous jury in the instant case because he presumed a juror
would say “I’m afraid to serve.” The judge elaborated that he
did not want to give the jurors his rationale for keeping them
anonymous because he believed that if he did, he would have to
“quell anxiety” amongst the jurors and assure them “that there's
been no incidents” in the past by stating: “I have, in the past,
had to inform jurors to quell anxiety, that there's been no
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incidents whatsoever. I do believe that’s the situation here,
but I don’t want it to be raised in the entire panel’s
consciousness at all because we want them to serve.” (Emphases
added). The judge thus “believe[d]” that the “situation here”
would give jurors "anxiety” that would lead them to say “I’m
afraid to serve.” As conceded by the Majority, it is
indisputable that the judge had no “evidence-rooted reason” to
harbor such beliefs, and consequently empanel an anonymous jury.
The circuit court’s “hunch” that some jurors might say they are
“afraid to serve” does not support an anonymous jury. However,
the court’s “hunch” does imply that the judge himself believed
the jurors had reason to be afraid to serve. This belief
implies a lack of neutrality on the part of the judge, because
it implies the judge passed judgment on the facts of the case,
as well as on the character of the defendants. The judge
concluded that the defendants were not to be trusted with the
names of the potential jurors. The complete absence of any
evidence suggesting the defendants could not be trusted evinces
a belief by the judge that, merely based on the accusations
against them, defendants were not to be trusted with the names
of the jurors. As noted by the Majority, “[f]or a fully
anonymous, partially anonymous, or confidential jury, a trial
court must detail a “strong reason” the jury or jury system
needs protection and make clear, evidence-based findings to
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support the conclusion.” (Emphasis added). The Majority
concurs the circuit court judge lacked any such evidence-based
findings in the instant case. Therefore, without evidence to
support the judge’s belief that the jury was facing a threat, or
had reason to be afraid, the inference that the judge “assumed
the role of a prosecutor” and presumed the defendants guilty
pervades. State v. Silva, 78 Hawaiʻi 115, 120, 890 P.2d 702, 707
(App. 1995), overruled on other grounds by Tachibana v. State,
79 Hawaiʻi 226, 900 P.2d 1293 (1995). This inference “seriously
compromise[s] the fundamental tenet of judicial impartiality
which must underlie criminal trials[.]” Silva, 78 Hawaiʻi at
121, 890 P.2d at 708. Because “the violation of
the Hawaiʻi constitutional right to an impartial judge is so
basic to a fair trial that it can never be treated as harmless
error[,]” the judge’s empaneling of an anonymous jury
constituted structural error and remand for a fair trial is
required. Id.
III. CONCLUSION
There is no dispute that the circuit court erred in
empaneling a jury whose identity was disguised behind a number.
The Majority’s holding portends a future where it is deemed
harmless for judges to act upon no record to deny defendants the
fundamental right to a fair trial judged by a known jury. I
depart from such a profound weakening of the right to a fair
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trial. Respectfully, withholding the names of the twelve jurors
from the defendants without any basis violated Lafoga’s and
Ines’ constitutional rights to the presumption of innocence,
right to counsel, right to an impartial jury, and right to an
impartial judge of the law. In so doing the circuit court
committed structural error tearing the fundamental fabric of a
fair trial. Error of such consequence is not subject to
harmless review. The ICA’s June 20, 2022 judgment on appeal,
the circuit court’s February 20, 2020 judgment of conviction and
sentence for Lafoga,6 and the circuit court’s September 2, 2020
amended judgment of conviction and sentence for Ines should be
vacated with instructions on remand to allow defendants to
conduct voir dire without restriction. Accordingly, I
respectfully dissent.7
/s/ Michael D. Wilson
6 Mr. Brandon Lafoga stands forever deprived of a fair trial in the instant case, as he died in custody on February 5, 2023.
7 I concur with the Majority’s opinion that the extended term sentencing instructions and special interrogatories were prejudicially erroneous and misleading, and that remand for a new extended term sentencing hearing and resentencing is required.