[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Rogers, Slip Opinion No.
2025-Ohio-4794.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2025-Ohio-4794
THE STATE OF OHIO, APPELLEE, v. ROGERS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Rogers, Slip Opinion No. 2025-Ohio-4794.]
Trials—Jury selection—Voir dire—In determining whether a juror was actually
biased, a reviewing court must consider entire record and determine
whether it demonstrates that juror was actually biased against the
defendant—Court of appeals did not err by considering group answers to
questions addressed to all prospective jurors in determining whether juror
was biased—Court of appeals’ judgment affirmed.
(No. 2024-0872—Submitted April 2, 2025—Decided October 22, 2025.)
APPEAL from the Court of Appeals for Warren County,
No. CA2023-08-063, 2024-Ohio-1637.
__________________
DEWINE, J., authored the opinion of the court, which Kennedy, C.J., and
FISCHER, DETERS, HAWKINS, and SHANAHAN, JJ., joined. BRUNNER, J., dissented.
SUPREME COURT OF OHIO
DEWINE, J.
{¶ 1} A jury found Todd Jeffrey Rogers guilty of multiple sexual offenses
against his daughter, including rape. He claims that his attorney provided
ineffective assistance of counsel by failing to challenge one of the jurors for cause.
{¶ 2} Because Rogers’s trial attorney did not object to the empaneling of
the juror, the only way Rogers can now succeed on his claim is by demonstrating
that the juror was actually biased against him. Having reviewed the transcript of
the jury voir dire, we conclude that Rogers has failed to meet the difficult burden
of establishing actual bias. The Twelfth District Court of Appeals reached the same
conclusion, so we affirm its judgment.
I. Rogers’s Trial and the Voir Dire of Juror McCarthy
{¶ 3} Rogers was charged with, and convicted of, raping and otherwise
sexually abusing his daughter when she was between five and nine years old. At
issue in this appeal is the selection of the jury that convicted Rogers—in particular,
defense counsel’s decision not to challenge for cause a juror who we will refer to
as Juror McCarthy.
{¶ 4} At trial, Rogers’s daughter was expected to testify, and ultimately did
testify, that she would routinely go to her father’s bed after eating breakfast on
Friday mornings, get under the blankets with him, lay on top of him, and he would
scratch her back. On some occasions, Rogers would touch her “private part,” both
over and inside her underwear. On one occasion, Rogers “touched [her] on the
inside” of her private part, “mov[ing his finger] around . . . inside.” After about
three and a half years of this abuse, the daughter told her mother, Rogers’s wife,
what had been happening. Rogers’s wife confronted him with the allegations, but
he denied them. Rogers’s wife contacted the police, leading to the charges against
him.
{¶ 5} This difficult subject matter faced the prospective jurors who walked
into the Warren County Court of Common Pleas one summer morning in 2023 for
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Rogers’s trial. Of course, the prospective jurors did not know this when they
entered the courtroom.
{¶ 6} The trial judge began jury selection by telling the prospective jurors
that they had been called for a criminal case and by identifying Rogers, defense
counsel, the prosecuting attorney, and a police detective who was seated with the
prosecutor at the counsel table. The judge then instructed the prospective jurors on
the presumption of innocence and the State’s burden to prove guilt beyond a
reasonable doubt.
{¶ 7} After telling the prospective jurors that Rogers did not have to prove
anything in the case and did not need to present witnesses or evidence, the judge
noted that some of the prospective jurors looked surprised. The judge explained
that while that might seem unusual “in everyday life,” in the courtroom, one does
not have to prove his innocence. He said that while a person might be arrested or
indicted by a grand jury, the trial was the defendant’s first real opportunity to have
his side fully presented.
{¶ 8} Next, the trial judge discussed the charges against Rogers. He asked
the prospective jurors whether any of them would have trouble separating
“sympathy” and “prejudice” from “the truth” in a child witness’s statements. At
this point, Juror McCarthy spoke up and said that, to be honest, he “might have a
hard time with it.” The following exchange ensued:
The Court: Do you think you can follow the instructions I
give to you in this case, knowing [that you’re] having a hard time
because this is a child witness and [you] tend to just want to favor
this child? Can you put that aside and listen to the evidence—and
be fair?
Juror McCarthy: It’s a good question. I don’t have an answer
for you.
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SUPREME COURT OF OHIO
Juror McCarthy’s equivocal answer prompted the judge to say that he would “leave
that to the attorneys to explore.” The judge proceeded to ask several other questions
to the jury pool about child witnesses and individually addressed other prospective
jurors. After the judge concluded, he allowed the attorneys to voir dire the
prospective jurors.
{¶ 9} The prosecutor began by explaining the definition of rape in Ohio and
that it encompasses acts beyond forced intercourse. He told the prospective jurors
that rape does not require forcible sexual conduct if the victim is under 13 years old
and that the insertion of a finger into the vaginal area qualifies as sexual conduct.
The prospective jurors agreed to apply Ohio’s definition of rape.
{¶ 10} Having explained the elements of rape, the prosecutor asked the
prospective jurors, “How do you think the victim of a sexual assault is supposed to
react?” Prospective jurors variously answered that they expected a victim to be
scared or angry after an assault. The prosecutor asked the prospective jurors
whether a child might not immediately report inappropriate sexual conduct.
Multiple prospective jurors voiced their belief that a child victim would be less
likely than an adult to report having been raped, especially if the child has a close
relationship with the abuser or the child is too young to understand the wrongness
of the sexual conduct.
{¶ 11} At this point, the prosecutor said, “I see, [Juror McCarthy], you’re
making faces.” Juror McCarthy pushed back on the idea that one would always
expect children to react differently to being raped compared to adults:
I think it depends . . . [;] there’s plenty of situations that come up
where there’s young people, and there’s older people. They
probably all react—if you looked at all the reactions—similar. . . .
So it’s not just a—you know, a kid that doesn’t know is just as scared
4
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as someone that does. It’s circumstantial. So I’m not sure the
reaction is gonna be any different.
The prosecutor agreed with Juror McCarthy that the circumstances, especially the
relationship of the people involved, are important. He asked the prospective jurors
whether they would agree not to make any decision on the case until they heard the
circumstances. The prospective jurors all agreed.
{¶ 12} The prosecutor moved on to a discussion of the evidence that would
be presented. He explained that the State did not intend to introduce DNA evidence
and that most of the evidence would come from the testimony of Rogers and his
daughter. He asked the prospective jurors whether they would be comfortable
basing their decision on a child’s testimony about her experiences of sexual abuse.
The prosecutor noted that Juror McCarthy was shaking his head, and Juror
McCarthy explained: “I might be expressive. I apologize. Just—I’m sure all of us
feel the same way.” The prosecutor sympathized that it was normal to feel
uncomfortable but said he wanted Juror McCarthy to speak up if he felt that he
could not handle the demands of the case. Juror McCarthy said nothing in response.
{¶ 13} The prosecutor concluded his voir dire by talking about evaluating
the truthfulness of child-witness testimony, the value of circumstantial evidence,
and the reasonable-doubt standard. For his final question, the prosecutor
specifically named Juror McCarthy and another prospective juror and asked
whether they felt they could “sit in judgment” and “do the right thing” in this case.
Both indicated that they could.
{¶ 14} Defense counsel began his voir dire examination by addressing the
presumption of innocence. He acknowledged that it was “very normal” for the
prospective jurors to wonder “what [Rogers] did” upon entering the courtroom and
seeing him seated at counsel table. But defense counsel stressed that as jurors, they
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would have to disregard that natural inclination because Rogers was presumed
innocent.
{¶ 15} After that preamble, defense counsel began to address individual
prospective jurors about the presumption of innocence. He had this exchange with
Juror McCarthy:
Defense Counsel: Mr. [McCarthy], what would your verdict
be if we asked your verdict right now?
Juror McCarthy: Well, I’d say when I first came in, that’s
my—I didn’t know why I was here.
Defense Counsel: Yeah.
Juror McCarthy: And that’s the person [Rogers] that’s there.
So, yeah, that’s the first question I had in my mind.
Defense Counsel: Great.
Juror McCarthy: But then when the subject matter [of the
case] was revealed, then that was a different feeling and reaction.
Defense Counsel: Yeah. So good. So if you had to give us
a verdict right now, guilty or not guilty, knowing that there’s a
presumption of innocence, that [Rogers is] innocent as he sits here
right now, what would your verdict be?
Juror McCarthy: I’d say it’d be hard for me to say that he’s
not guilty.
Defense Counsel: It’d be hard for you to say—
Juror McCarthy: Yeah, because we’re here. We’re—
Defense Counsel: Ahh.
Juror McCarthy: And there’s someone here from the police
department that’s—
Defense Counsel: Right.
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January Term, 2025
Juror McCarthy: —that’s gonna talk. So, yeah, people don’t
wind up here from not doing anything.
Defense Counsel: Okay. That—that’s what’s going on in
your head. That’s an honest statement. Does anyone see it
differently?
Defense counsel posed similar questions about the presumption of innocence to
other prospective jurors. It soon became clear that Juror McCarthy was not the only
one struggling with applying the concept. Another prospective juror called the
presumption of innocence “a fundamental basis of our laws” and said that he would
have no difficulty applying the presumption. But when defense counsel asked him
what his verdict would be if he had to render one right now without any evidence
having been presented, the prospective juror answered, “I couldn’t do that because
I haven’t heard the full story.”
{¶ 16} Realizing that the prospective jurors were struggling with his
hypothetical question, defense counsel explained, “I was trying to get someone to
say . . . if you had [to give] a verdict now, because there’s been no evidence
presented, [Rogers is] not guilty because that’s the law, that the Prosecutor has a
responsibility of proving each and every element of the offense.” After a longer
explanation of why “not guilty” was the right answer, defense counsel asked the
prospective jurors whether any of them disagreed or thought that was not the right
answer. No one spoke up. Defense counsel then asked whether anyone had
questions about “not guilty” being the right answer. The prospective jurors,
including Juror McCarthy, collectively indicated that they had no questions.
{¶ 17} Defense counsel turned to the credibility of child witnesses.
Rogers’s defense at trial was that the allegations against him were fabricated by his
wife and that she was putting words into their daughter’s mouth. So defense
counsel questioned prospective jurors about whether children are impressionable
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SUPREME COURT OF OHIO
and “want to please their parents.” Juror McCarthy was among the prospective
jurors singled out for this question. Like the other prospective jurors questioned,
he agreed that children are impressionable and want to please their parents.
{¶ 18} Before concluding voir dire, defense counsel asked the prospective
jurors to rate the importance of honesty on a scale from one to ten. Juror McCarthy
rated it a ten.
{¶ 19} At the close of voir dire, Rogers’s attorney challenged one of the
other prospective jurors for cause, but he did not elect to challenge Juror McCarthy.
Rogers’s attorney also exhausted his peremptory challenges, excusing four
prospective jurors, but not Juror McCarthy. Juror McCarthy was empaneled on the
jury, and the jury ultimately found Rogers guilty of several sex offenses, including
rape.
II. Rogers’s Appeals
{¶ 20} Rogers appealed his convictions to the Twelfth District. He argued,
among other things, that his trial counsel was constitutionally ineffective for not
challenging for cause Juror McCarthy, who Rogers claimed tainted the jury and
deprived him of a fair trial. See 2024-Ohio-1637, ¶ 9 (12th Dist.). The court of
appeals found no merit to Rogers’s argument and upheld his convictions. Id. at
¶ 38. Based on “an extensive review of the voir dire transcript,” the court
characterized Juror McCarthy’s statements as “nothing more than [his] verbalizing
the internal struggle he was facing.” Id. at ¶ 20.
{¶ 21} It was clear to the court of appeals that Juror McCarthy was voicing
abstract doubt “whether he, or anybody else, could honestly be expected to be
remain fair and impartial while empaneled on a jury tasked with determining the
guilt or innocence of a man accused of sexually abusing a child and close family
member.” Id. It saw the statements as “in no way indicative of an actual bias
against Rogers.” Id. The court also noted the many times Juror McCarthy—in
response to the group questions addressed to all the prospective jurors—indicated
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January Term, 2025
alongside the rest of the group that he would be fair and impartial, would apply the
presumption of innocence, and would hold the State to the requirement of proof
beyond a reasonable doubt. Id. at ¶ 21.
{¶ 22} Because Rogers had not shown that Juror McCarthy was actually
biased against him, the Twelfth District rejected his claim that he had received
ineffective assistance of counsel and ultimately affirmed his convictions. Id. at
¶ 23, 39.
{¶ 23} We accepted Rogers’s appeal on two propositions of law. See 2024-
Ohio-3313. In the first, Rogers argues that a prospective juror who has expressed
partiality cannot be rehabilitated through group answers in voir dire. In the second,
he argues that for a prospective juror to be rehabilitated, he must individually affirm
that he can be impartial. Because the propositions are closely related, we address
them together.
III. Prevailing on an Ineffective-Assistance Claim Based on Empaneling of
Biased Juror
{¶ 24} Because Rogers’s attorney did not object to the seating of Juror
McCarthy on the jury, Rogers can only prevail by demonstrating that his counsel
was constitutionally ineffective. That is, Rogers must establish that his counsel’s
performance was so inadequate that he was denied the right to effective assistance
of counsel guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution.1
{¶ 25} To prevail on a claim of ineffective assistance of counsel, a
defendant ordinarily must show “(1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and
(2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the
1. Rogers has not raised a claim under Article I, Section 10 of the Ohio Constitution, which
guarantees that “[i]n any trial, in any court, the party accused shall be allowed to appear and defend
in person and with counsel.”
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SUPREME COURT OF OHIO
proceeding’s result would have been different.” State v. Mundt, 2007-Ohio-4836,
¶ 62, citing Strickland v. Washington,
466 U.S. 668, 687-688, 694 (1984). Both the
deficient-performance and prejudice prongs must be met for a successful
ineffective-assistance claim; neither is individually sufficient. See State v.
Madrigal,
2000-Ohio-448, ¶ 49 (“A defendant’s failure to satisfy one prong . . .
negates a court’s need to consider the other.”).
{¶ 26} In this case, however, Rogers argues that he does not need to
establish the prejudice prong of the Strickland standard. He argues, instead, that
prejudice should be presumed because Juror McCarthy was actually biased against
him.
{¶ 27} The United States Supreme Court has never addressed whether
prejudice may be presumed under Strickland when defense counsel fails to object
to a biased juror. In Strickland, the Court identified only a few limited
circumstances in which prejudice would be presumed: when there has been
“[a]ctual or constructive denial of the assistance of counsel altogether,” when the
State has interfered with counsel’s assistance, and when counsel has labored under
a conflict of interest. Strickland at 692; see also Weaver v. Massachusetts,
582 U.S.
286, 308 (2017) (Alito, J., concurring in the judgment) (“The Court has relieved
defendants of the obligation to make this affirmative showing in only a very narrow
set of cases in which the accused has effectively been denied counsel altogether.”).
{¶ 28} Although the United States Supreme Court has never held that
Strickland prejudice should be presumed based on the presence of a biased juror, it
has held that when an objection is properly preserved, the presence of a biased juror
would mandate the reversal of a conviction. Ross v. Oklahoma, 487 U.S. 81, 85
(1988); United States v. Martinez-Salazar,
528 U.S. 304, 316-317 (2000). Based
on this principle, federal circuit courts have expanded the categories in which
prejudice may be presumed under Strickland to include instances when there has
been a showing that a juror was actually biased against a particular defendant. See,
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January Term, 2025
e.g., Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001), citing Hughes v. United
States,
258 F.3d 453, 458 (6th Cir. 2001); Goeders v. Hundley,
59 F.3d 73, 75 (8th
Cir. 1995).
{¶ 29} We adopted this type of actual-bias standard in Mundt, 2007-Ohio-
4836. There, we held that a defendant could establish prejudice under Strickland
by showing that counsel failed to object to the empanelment of a juror who was
actually biased against the defendant. Id. at ¶ 67. We explained that “[w]hen a
defendant bases an ineffective-assistance claim on an assertion that his counsel
allowed the impanelment of a biased juror, the defendant ‘must show that the juror
was actually biased against him.’ ” (Emphasis added in Mundt.) Id., quoting Miller
at 616, citing
Hughes at 458.
{¶ 30} Actual bias means “‘bias in fact’—the existence of a state of mind
that leads to an inference that the person will not act with entire impartiality.”
United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997), citing United States v. Wood,
299 U.S. 123, 133 (1936). “‘[T]he mere existence of any preconceived notion as
to the guilt or innocence of an accused’” is insufficient to rebut the presumption
that a juror is impartial. State v. Warner,
55 Ohio St.3d 31, 47 (1990), quoting Irvin
v. Dowd,
366 U.S. 717, 723 (1961). An impression or opinion does not make a
juror partial unless that juror cannot “‘lay aside [the] impression or opinion and
render a verdict based on the evidence presented in court.’”
Id., quoting
Irvin at
723.
{¶ 31} A juror is not actually biased simply because he has some prior belief
about an issue. Griffin v. Bell, 694 F.3d 817, 824 (7th Cir. 2012). Thus, a juror’s
prior belief that certain types of witnesses might be more believable than others
(e.g., law-enforcement officers) is not a basis to dismiss a juror for cause unless the
juror presents “an irrational or unshakeable bias that indicate[s] an inability or
unwillingness to faithfully and impartially apply the law.”
Id.
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SUPREME COURT OF OHIO
{¶ 32} By its nature, the presumption of prejudice afforded by a showing of
actual bias is difficult to attain. Actual bias is a high bar for a few reasons.
{¶ 33} First, prospective jurors are presumed impartial, so it is incumbent
on the party challenging the empanelment of a juror to overcome that presumption
to establish bias. Warner, 55 Ohio St.3d at 47, citing Reynolds v. United States,
98
U.S. 145, 157 (1878).
{¶ 34} Second, there are difficulties inherent in assessing the passions of
jurors from a cold transcript. For one thing, “‘[w]ritten records give us only
shadows for measuring the quality of [counsel’s] efforts’ ” in selecting a jury.
Mundt, 2007-Ohio-4836, at ¶ 64, quoting Romero v. Lynaugh,
884 F.2d 871, 878
(5th Cir. 1989). The demeanor of a juror, which normally does not appear in the
appellate record, “is oftentimes more indicative of the real character of [the juror’s]
opinion than [the juror’s] words.”
Reynolds at 156-157. For another, “[j]urors . . .
cannot be expected invariably to express themselves carefully or even consistently.”
Patton v. Yount,
467 U.S. 1025, 1039 (1984). So appellate courts reviewing voir
dire are given the difficult task of squaring inconsistent juror statements in an
inherently limited record.
{¶ 35} Third, and most important, appellate courts must be “highly
deferential” to trial counsel’s performance, Strickland, 466 U.S. at 689. Because
“[a]n ineffective-assistance claim can function as a way to escape rules of waiver
and forfeiture and raise issues not presented at trial,” the United States Supreme
Court has cautioned that “the Strickland standard must be applied with scrupulous
care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary
process the right to counsel is meant to serve.” Harrington v. Richter,
562 U.S. 86,
105 (2011), quoting
Strickland at 690.
{¶ 36} The “range of reasonable professional assistance” is “wide,”
Strickland at 689, and even “debatable trial tactics do not establish ineffective
assistance of counsel,” State v. Conway,
2006-Ohio-2815, ¶ 101, so this court does
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January Term, 2025
not “‘second-guess trial strategy decisions,’” Mundt at ¶ 63, quoting State v. Mason,
1998-Ohio-370, ¶ 83. This deference is particularly important when analyzing
attorney performance at voir dire, one of the most “‘subjective’” aspects of trial,
involving “‘decisions [that] are often made on the basis of intangible factors.’” Id.
at ¶ 64, quoting Miller,
269 F.3d at 620. Therefore, this court does not “impose
‘hindsight views about how current counsel might have voir dired the jury
differently.’” Id. at ¶ 63, quoting
Mason at ¶ 83. As the Utah Supreme Court has
explained, “[i]t is generally inappropriate for a trial court to interfere with counsel’s
conscious choices in the jury selection process, notwithstanding the existence of a
reasonable basis for objecting to those jurors.” State v. Litherland,
2000 UT 76,
¶ 32. Thus, “[o]nly where a juror expresses a bias or conflict of interest that is so
strong or unequivocal as to inevitably taint the trial process should a trial court
overrule trial counsel’s conscious decision to retain a questionable juror.”
Id.
{¶ 37} The actual-bias standard for presuming prejudice necessarily means
that when the voir dire record demonstrates only a possibility or a potential that a
juror was biased, prejudice may not be presumed. Thus, when the voir dire
transcript indicates statements that suggest potential bias but fall short of
demonstrating actual bias, and counsel neglected to follow up on such statements,
prejudice cannot be presumed. See State v. King, 2008 UT 54, ¶ 38 (“The effect of
extending the Strickland presumption of prejudice to errors of counsel that allow
the seating of potentially biased jurors would be to distort a well-developed body
of law that strikes a proper balance between the interests of the adversarial process
and the guarantees of a fair trial in the jury selection process.”); see also State v.
Romero,
2023-NMSC-014, ¶ 19 (“The record in this case discloses at most potential
bias that, absent further proof, does not rise to a constitutional violation.”).
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SUPREME COURT OF OHIO
IV. Rogers Has Not Demonstrated that Juror McCarthy Was Actually
Biased Against Him
{¶ 38} As we have explained, to prevail on a claim of ineffective assistance
of counsel, a defendant must establish both that his counsel’s performance was
deficient and that he was prejudiced by that deficient performance. In the
proceeding below, the Twelfth District focused on only the second prong of the
test—whether prejudice could be presumed because of the presence of a biased
juror. It reasoned that it was unnecessary to consider whether Rogers’s counsel was
deficient because if Rogers established that Juror McCarthy was actually biased,
“in nearly every conceivable circumstance,” failing to challenge a biased juror for
cause constitutes deficient performance. 2024-Ohio-1637 at ¶ 14 (12th Dist.).
{¶ 39} The United States Supreme Court has made clear that in adjudicating
a claim of ineffective assistance of counsel, the prongs of the Strickland test may
be considered in any order and that “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.” Strickland, 466 U.S. at 697. In this case, we
agree with the court of appeals that because the question of whether Juror McCarthy
was actually biased is so closely tied to the question of whether counsel rendered
deficient performance in opting not to challenge him for cause, it is appropriate to
proceed directly to the question of actual bias.
{¶ 40} Rogers’s argument that Juror McCarthy was actually biased is
centered on two sets of statements. He contends that Juror McCarthy demonstrated
actual bias based on comments that (1) he would tend to favor the testimony of a
child witness and (2) he presumed that Rogers was guilty because he was on trial.
{¶ 41} In reviewing claims of actual bias that are based on the jury-selection
process, we consider the totality of the evidence, considering whether the voir dire
transcript as a whole demonstrates that the juror was actually biased. See Holder v.
Palmer, 588 F.3d 328, 340 (6th Cir. 2009) (“In assessing whether a juror was
14
January Term, 2025
actually biased against a defendant, this court considers the totality of the juror’s
statements.”). We begin with the two subjects on which Rogers predicates his claim
of actual bias: evaluation of the testimony of child witnesses and the presumption
of innocence.
A. Juror McCarthy’s Statements About Child Witnesses Do Not Show Actual
Bias
{¶ 42} In support of his claim that Juror McCarthy was actually biased
against him, Rogers first focuses on Juror McCarthy’s statements during voir dire
about his uneasiness assessing the testimony of a child witness. Specifically, he
points to Juror McCarthy’s comment that he “might have a hard time” evaluating a
case involving a child witness and his subsequent response, “I don’t have an answer
for you,” when asked by the judge whether he could put aside his feelings, listen to
the evidence, and be fair.
{¶ 43} A review of the entire transcript reveals, however, that Juror
McCarthy had a nuanced view about child witnesses that became evident as voir
dire progressed. For example, when other prospective jurors agreed with the
prosecutor’s suggestion that child victims would react differently than adults to a
sexual assault and might be reluctant to report it, Juror McCarthy pushed back. In
his view, it wasn’t necessarily the case that a child would react differently than an
adult. Juror McCarthy also agreed with defense counsel’s statements that children
were impressionable and wanted to please their parents.
{¶ 44} Taken as a whole, the transcript demonstrates that Juror McCarthy
initially expressed a natural discomfort when confronted with the task of hearing a
sex-abuse case involving a child. But at the same time, his answers revealed that
he was open to important parts of the defense’s case—specifically, arguments that
the victim’s delay in reporting abuse made it less likely that abuse actually occurred
and that the mother was foisting a fabricated tale of abuse on an impressionable
child. His belief that a child’s reaction to abuse would depend on the circumstances
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SUPREME COURT OF OHIO
is the opposite of “a bias that would prevent him . . . from individually weighing
the facts of the case,” State v. Madison, 2020-Ohio-3735, ¶ 24.
{¶ 45} The voir dire transcript demonstrates that Juror McCarthy
acknowledged that the difficult subject of the trial would pose a challenge to him,
as it would to most jurors. It does not demonstrate that Juror McCarthy had an
unalterable predisposition to find the defendant guilty regardless of the evidence or
that he would not follow the judge’s instructions. We conclude that Rogers has
failed to meet his burden to demonstrate that Juror McCarthy was actually biased
based on his statements about child witnesses.
B. Juror McCarthy’s Statements About the Presumption of Innocence Do Not
Show Actual Bias
{¶ 46} Rogers next argues that Juror McCarthy’s answers regarding the
presumption of innocence show that he had actual bias. Here, he relies on Juror
McCarthy’s answer that “it’d be hard for [him] to say [that Rogers is] not guilty” in
response to defense counsel’s hypothetical question asking what his verdict would
be if he had to render one before trial.
{¶ 47} Juror McCarthy’s comments are not unlike juror comments in
Patton, 467 U.S. 1025, that the United States Supreme Court concluded did not
require the excusal of a juror for cause. There, a defendant challenged the
empanelment of jurors who “had formed an opinion as to [the defendant’s] guilt”
because of pretrial publicity.
Id. at 1028-1030. One juror said during voir dire that
he believed the defendant was guilty based on what he had read in the newspapers,
that it would take evidence to overcome his prior beliefs, and that it would be
difficult for him to answer whether he could apply the presumption of innocence.
Id. at 1030;
id. at 1048-1049 (Stevens, J., dissenting). But the juror also said that
he could enter the jury box with an open mind and that he could alter his original
belief based on the facts presented.
Id. at 1039;
id. at 1049 (Stevens, J., dissenting).
The Court concluded that the “ambiguity” in the juror’s testimony was an
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January Term, 2025
insufficient basis to find that the trial court erred in failing to excuse the juror. Id.
at 1039-1040.
{¶ 48} Here, in struggling with counsel’s hypothetical question, Juror
McCarthy voiced his assessment that generally, “people don’t wind up [on trial]
from not doing anything.” Such feelings are common and not by themselves
evidence of actual bias. As the United States Court of Appeals for the Seventh
Circuit has explained, “[a] person told that X had been indicted, and asked whether
he thought X guilty, might reply that he thought X probably was guilty because few
innocent people are indicted.” Thompson v. Altheimer & Gray, 248 F.3d 621, 625
(7th Cir. 2001). That answer certainly evidences a prior belief, but it would show
a bias only “if, for example, the person added, ‘Nothing will ever convince me that
the government would indict an innocent person.’”
Id.
{¶ 49} Juror McCarthy was not the only prospective juror to struggle with
the hypothetical question about the presumption of innocence. In response, defense
counsel explained why “not guilty” was the right answer. None of the prospective
jurors spoke up when defense counsel asked whether anyone “disagrees with that
or thinks that’s not the right answer.” And all the prospective jurors collectively
indicated that they had no questions about “not guilty” being the right answer.
{¶ 50} A review of the voir dire transcript reveals that Juror McCarthy was
not hesitant to speak out when he had a question or disagreed with a statement made
by counsel. And when defense counsel asked Juror McCarthy to rate the
importance of honesty on a scale from one to ten, he answered ten. If Juror
McCarthy was still confused about applying the presumption of innocence after
counsel’s explanation, there is no reason to think that he would not have said so.
{¶ 51} Juror McCarthy’s answers regarding the presumption of innocence
do not demonstrate actual bias against Rogers.
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V. The Court of Appeals Did Not Err by Considering Group Answers in
Determining Whether Juror McCarthy Was Biased
{¶ 52} Rogers presents two propositions of law for our review, both taking
aim at what he describes as the court of appeals’ consideration of “group answers”
to voir dire questions in its determination that Rogers failed to establish that Juror
McCarthy was actually biased against him. Underlying Rogers’s argument is a
premise that Juror McCarthy’s individual answers establish that he was actually
biased against him. He argues that because Juror McCarthy’s answers established
actual bias, the court of appeals should not have relied on group answers to
“rehabilitate” him. Indeed, Rogers argues that group answers must be disregarded
in determining whether a prospective juror is actually biased.
{¶ 53} We reject the underlying premise of Rogers’s argument. As we have
already explained, we are not convinced that Juror McCarthy’s initial individual
answers, by themselves, were sufficient to demonstrate actual bias.
{¶ 54} Nor do we find it appropriate to adopt a blanket rule forbidding
consideration of group answers. Instead, in determining whether a juror was
actually biased, a reviewing court must consider the entire record and determine
whether it demonstrates that the juror was actually biased against the defendant.
{¶ 55} In support of his argument, Rogers relies on three cases—Johnson v.
Armontrout, 961 F.2d 748 (8th Cir. 1992), Hughes v. United States,
258 F.3d 453
(6th Cir. 2001), and Morgan v. Illinois,
504 U.S. 719 (1992)—in which courts in
other contexts found collective responses by prospective jurors inadequate, by
themselves, to ensure impartiality. In Johnson, several jurors had previously served
on a jury that convicted the accused’s codefendant of the same robbery. Johnson at
750. Not surprisingly, the United States Court of Appeals for the Eighth Circuit
concluded that the collective silence of the entire jury panel in response to two
questions about whether they could put aside evidence they had heard at the prior
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trial and rely on the evidence presented at the upcoming trial was insufficient to
demonstrate the jurors’ impartiality. Id. at 750, 755-756.
{¶ 56} In Hughes, the United States Court of Appeals for the Sixth Circuit
held that “silence in the face of generalized questioning” of the whole venire was
insufficient to demonstrate the impartiality of a prospective juror who had admitted
that she could not be fair. Hughes at 456, 461.
{¶ 57} In Morgan, the trial judge refused defense counsel’s request to ask
the prospective jurors whether they would automatically impose the death penalty
if they found the defendant guilty. Morgan at 721. The Supreme Court held as a
matter of due process that the defendant had a right to inquire into the jurors’ views
on capital punishment at voir dire and that general questions by the judge about
whether the jurors would follow the law and could be fair and impartial were
insufficient to protect the defendant’s rights.
Id. at 733-736.
{¶ 58} We find nothing in these cases that undermines our confidence in the
decision below. None of these cases stands for the proposition that group answers
must be disregarded; they just make clear that, in the context of those cases, more
was required to ensure an impartial jury. Indeed, we agree with Rogers up to a
point. If a prospective juror makes an unequivocal declaration that he cannot afford
the defendant a fair trial, we doubt that the prospective juror’s mere silence in
response to a judge’s question like, “Is there anyone here who cannot follow the
law,” would be sufficient to overcome the actual bias that the prospective juror has
expressed by his own words. But that is not the case that we confront today.
{¶ 59} The court of appeals did not rely solely on Juror McCarthy’s
response to group questions. It first concluded, after “an extensive review of the
voir dire transcript,” that Juror McCarthy’s statements were vocalizations of the
internal struggle he or anyone else would face in dealing with the difficult subject
matter of the case and were “in no way indicative of an actual bias against Rogers.”
2024-Ohio-1637 at ¶ 20 (12th Dist.). Only after concluding that his statements did
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SUPREME COURT OF OHIO
not show actual bias did the court add that its conclusion was supported by the
“numerous occasions in which Juror McCarthy . . . agreed [as part of group
answers] that he not only could, but would, [be] fair and impartial.” Id. at ¶ 21.
{¶ 60} Further, not all the questions were directed to the entire venire. The
prosecutor singled out Juror McCarthy and another prospective juror to ask whether
they could fulfill their duties as jurors, sit in judgment, and do the right thing. Juror
McCarthy and the other prospective juror answered affirmatively. That question,
by being directed at a small group, was pointed and purposeful, like an individual
question would be.
{¶ 61} In conducting voir dire, trial judges and attorneys rely on a variety
of techniques to determine whether prospective jurors can be fair and impartial.
These techniques include individual questions and group questions of varying
types. An attorney deciding whether to challenge a prospective juror, either for
cause or peremptorily, will necessarily consider all the prospective juror’s
responses and interactions in deciding whether to make a challenge. So too, a trial
judge in deciding whether to excuse a prospective juror will necessarily consider
the full context of voir dire. A reviewing court should do no less. To review
whether an attorney was constitutionally ineffective for allowing the empanelment
of an allegedly biased juror, a reviewing court will need to review the full record of
the jury-selection process. We decline to create a blanket rule that would forbid a
reviewing court from considering any aspect of the jury-selection process.
VI. Conclusion
{¶ 62} After a full review of the voir dire transcript, we conclude that
Rogers has failed to show that Juror McCarthy was actually biased against him.
Therefore, Rogers has not shown that his attorney rendered ineffective assistance
by failing to challenge Juror McCarthy for cause. We affirm the judgment of the
Twelfth District Court of Appeals.
Judgment affirmed.
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January Term, 2025
__________________
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A.
Brandt, Assistant Prosecuting Attorney, for appellee.
Taft Stettinius & Hollister, L.L.P., Nathan R. Coyne, and Aaron M. Herzig,
for appellant.
Flowers & Grube and Louis E. Grube in support of neither party for amicus
curiae, Ohio Association for Justice.
__________________
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