Appellant McCowen Brief - Mass Cases

post-verdict dinner with the prosecutor at Wimpy's, and
her first-hand observation of Gomes ' post-trial
testimony. App. 58, MNTR. 2/1/08, 21-24. Record evidence
amassed at post-trial hearings proved this jury did not
take its job seriously. It matters not whether a single
juror, OF the entire panel, was exposed to racial bias;
a criminal defendant is "entitled to be tried by twelve,
not nine or even ten, impartial and unprejudiced
jurors." Parker v. Gladden, 385 U.S. 363, 366 (1966).
McCowen deserves a new trial. It is clear that "[tlhe
judge who examines on the voir dire is engaged in the
process of organizing the court. If the answera to the
questions are willfully evasive or knowingly untrue, the
talesmanAs a juxox in name only." Clark v. United
States, 289 U,S, 1, 11 (1933). McCowen proved by a
preponderance of the evidence that Gomes ' presence on
the panel was a sham. The Commonwealth offered no
rebuttal e
The magnitude of these transgressions is enormous.
Flagrant misconduct makes thia a rare case; this Court
must presume juror bias. See Burton v. Johnson, 948 F.2d
1150 (10th Cix. 1991). A defendant who shows a juror
"failed to answer honestly a material question on voir
dire, and then further shows that a correct response
would have provided a valid basis for a challenge for
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