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Judge Orders New Trial for Maine Mexican Restaurant Owners
08/21/2013   Reported By: Tom Porter

A federal judge has granted a retrial for the owners of three Mexican restaurants in Maine, after racial slurs made by one of the jurors came to his attention. Brothers Hector and Guillermo Fuentes of Westbrook, who are U.S. residents originally from Mexico, were convicted in March of harboring undocumented aliens and other federal charges. Tom Porter has more.

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In his 23-page decision, U.S. District Court Judge D. Brock Hornby describes how one of the jurors is reported as saying, "They are all guilty wetbacks anyway," while the trial was still ongoing. The comments, says Hornby, were made to a third party in a bar two days into the trial.

The third party in question was a man awaiting sentencing for an unrelated federal crime. He told his probation officer what the juror had told him, and those comments came to Hornby's attention on April 16. The juror in question denied making the remarks, but after four months of deliberation, Hornby is now convinced the comments were made. Defendants, he says, are entitled to 12 impartial jurors - something which was denied to the Fuentes brothers.

"I just think that it was a very courageous opinion by Judge Hornby," says Hector Fuentes' attorney Leonard Sharon. Sharon says the decision to grant a retrial set a legal precedent in Maine, and raises serious questions about the problems posed by so-called "stealth jurors" - that's the name given to jurors who fail to disclose any bias that they have during the jury selection process.

"And then they become a member of the panel who deliberates on a person's fate, and they base the decision not on evidence but based on stereotypes," Sharon says.

Currently, says Sharon, the selection process takes place in open court, where potential jurors are asked simply if they
have any personal prejudices which could affect their impartiality. Sharon believes the jury selection process - known in legal-ese as 'voir dire' - should be changed to follow the example of some other states, where the judge scrutinizes each potential juror behind closed doors, where he says they're more likely to be truthful.

Toby DilworthMore reaction to the ruling in this case comes from Toby Dilworth (left), president of the Maine Association of Criminal Defense Lawyers, who acknowledges that jury selection is not a perfect process.

"A lot of people have biases and prejudices that they carry into the courtroom, and the 'voir dire' process is one that is intended to screen those out, but it doesn't always do it," he says.

Tom Porter: "Now this is the process by which the jurors are chosen from a much larger pool - they're cross-examined and questioned, aren't they?"

Toby Dilworth: "Yes, what happens is, in the process, there's a jury pool of, say, 50 people. And they're asked, 'The defendant here is a Mexican. Do you have any prejudices against Mexicans?' A lot of people aren't going to stand up, even if they have that prejudice. They're not going to stand up and say, 'Well, your honor, I have concerns about that defendant.' So it takes an affirmative step by the juror to say that they may not be able to sit impartially in the trial. So that's a problem with the process."

Tom Porter: "Leonard Sharon, one of the attorneys in the case, feels that jurors should be more carefully scrutinized, that this 'voir dire' process should take place more in private where the potential jurors are going to be more relaxed and the judge can perhaps get a better understanding of any underlying bias they might have. Do you think that's a good point?"

Toby Dilworth: "I think it is a good point, and it's a problem that I know courts across the country have struggled with. Judges tend to restrict 'voir dire' because they think that it's extremely time-consuming, and second of all, I think they think it's fertile ground for lawyers to create prejudice sometimes, to try to win the jury over even before the case begins by the nature of their questions to the jury. But on the other hand, there are important questions that have to be asked for all jurors so that we get a fair jury. It's critical under the Sixth Amendment we have an impartial jury."

Tom Porter: "Getting back to Maine angle, the defendants were Mexican in this case. In a courtroom where the defendant is non-white, and the state here is predominantly white, to what extent do you think it's a problem trying to get a jury with a number of peers in of the defendant?"

Toby Dilworth: "Well, it is routine in Maine that you have all-white jurors, and when you do have a defendant of color, I know that oftentimes they don't feel like they're getting a fair shake, whether that's true or not."

Toby Dilworth is president of the Maine Association of Criminal Defense Lawyers. The retrial of Hector and Guillermo Fuentes is scheduled for October.

Editor's Note: In the interest of full disclosure, defense attorney Leonard Sharon is married to MPBN Deputy News Director Susan Sharon.

Photo:  Tom Porter

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