Court of Appeals of Missouri Finds Trial Court Should Have Stricken Juror Who Was the Sister of a Prosecutor Previously Involved With the Case

It is clear that a prospective juror who is a sibling of the prosecutor in a case can be stricken for cause. But what if the prospective juror is the sibling of a prosecutor who signed some of the early pleadings in the case and appeared for the State during a few preliminary hearings? This was the question of first impression addressed by the Missouri Court of Appeals, Western District in its recent opinion in State v. Brandolese, 2018 WL 6738896 (Mo.App. 2018).

In Brandolese, the following exchange occurred between defense counsel and a prospective juror:

MR. COOK: I notice your last name. Are you a relative of Tony Farkas?

JUROR NO. 16: Yes. That’s my brother.

MR. COOK: Oh. So your brother is a prosecutor?

JUROR NO. 16: Yeah.

MR. COOK: Okay. Thank you….

The judge thereafter refused to strike Juror #16 “for cause, as requested, on the ground that defense counsel had failed to follow up with questions about her ability to be fair and impartial.” Tony Farkas was not the prosecutor at trial, but he “had signed some of the early pleadings, including the complaint, and had appeared for the State during a few preliminary hearings.”

After he was convicted, the defendant appealed, arguing that the judge’s decision not to strike Juror #16 violated MO Rev Stat § 494.470.1, which states, in relevant part, “[N]o person who is kin…to the…prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause.”

The Court of Appeals agreed with the defendant and granted him a new trial, finding that

Some guidance is provided by the statute, which states that the disqualifying kinship is with the prosecuting attorney “in the same cause.” § 494.470.1. This narrows the disqualification such that it would not appear to apply, for example, to a potential juror related within the fourth degree of consanguinity to a prosecutor in another state or even another county, unless that person were involved “in the same cause.” Here, the assistant prosecuting attorney was a prosecutor in the same cause to the extent that he had signed the complaint and appeared at several pre-trial hearings.

-CM