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4th Cir.: Juror’s voir dire omission demands further inquiry

In a habeas challenge brought by a defendant on death row for the murder of a Norfolk law enforcement officer, an evidentiary hearing is necessary to determine whether juror bias tainted the conviction. Despite a straightforward inquiry by trial counsel, one juror failed to disclose that his brother was a law enforcement officer in neighboring Chesapeake.


In 2007, Appellant Thomas Porter was convicted of capital murder for killing S. Reaves, a Norfolk law enforcement officer.

During voir dire before trial, defense counsel had asked the panel: “Have you, any member of your family or close personal friend worked for or with any law enforcement organization, either as an employee or on a volunteer basis?” Juror B. Treakle responded that his nephew was an Arlington police officer, but he said the relationship would not affect his ability to be impartial. He stated nothing further. Treakle ultimately sat on the jury that convicted Porter and sentenced him to death.

In 2009, Porter’s habeas counsel discovered that, in addition to the nephew in Alexandria, Treakle’s brother was a sheriff’s officer in Chesapeake – a jurisdiction adjacent to Norfolk. Not only did Reaves and his family live in Chesapeake, but Chesapeake and Norfolk  law enforcement officers cooperated in searching for Porter after Reaves’s death. Reaves’s wife later publicly thanked Chesapeake officers for their assistance.

Accordingly, Porter raised the issue of juror bias in his habeas petition. This court previously remanded the question to the district court for initial resolution, instructing that it “may consider any argument or defense properly raised … and may conduct an evidentiary hearing or any other proceedings it deems necessary to resolve the claim.”

After briefing, the district court dismissed the juror bias claim without an evidentiary hearing. Porter has appealed on the basis that the district court should have held a hearing, as well as numerous other grounds. While this court largely affirms the district’s court’s resolution of Porter’s habeas challenges, a second remand is necessary to adequately address his claims arising from Treakle’s potential bias.

Actual bias

The district court erred in dismissing the actual-bias claim without an evidentiary hearing.

First the district court failed to apply Williams v. Taylor, 529 U.S. 420 (2000), which controls here. In Williams, the Supreme Court held that a juror’s “unwillingness to be forthcoming” established the need for an evidentiary hearing on the question of juror bias. Here, Treakle inexplicably remained silent about the fact that his brother was a law enforcement officer in the neighboring jurisdiction. He later said he felt very emotional about Reaves’s widow’s testimony because of his brother’s position. As the Commonwealth’s first witness, Mrs. Reaves’s testimony set the tone for the entire trial.

Second, the district court held Porter, or more specifically his trial counsel, to unreasonable standards on numerous fronts. Neither the Supreme Court nor this court has said that counsel must keep asking questions until the juror gives a complete answer, without even knowing whether the answer is complete. Counsel is entitled to expect that when venire panel members take an oath to answer truthfully all questions put to them, they will indeed tell the whole truth.

In addition, it is unreasonable in this context to require the defendant to submit admissible evidence in order to be granted an evidentiary hearing. The purpose of the hearing is to secure such evidence.

Moreover, the district court simply assumed that Treakle did not purposely lie, calling him “honest” and “forthright,” based on a cold, woefully undeveloped record. This approach is not consistent with the requirement to draw all reasonable inferences in the petitioner’s favor on a motion to dismiss.

Third, the district court misinterpreted the effect of Federal Rule of Evidence 606(b). Under subsection (2), new testimony by Treakle may appropriately be offered to demonstrate actual bias. So although Rule 606(b) may prohibit solicitation of some juror testimony, it does not preclude testimony altogether.

Finally, the district court didn’t even mention the actual-bias factors set forth in Townsend v. Sain, 372 U.S. 293 (1963). Porter clearly satisfies the fifth factor: that “the material facts were not adequately developed in state court.”

Of course, it is not clear at this stage whether actual bias was present. What is clear is that the state habeas court’s failure to permit Porter to adequately develop the facts entitles him to discovery and an evidentiary hearing.

McDonough bias

Porter’s challenge under McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548 (1984), merits the same ultimately conclusion. Both the state habeas and district courts concluded that McDonough did not apply because Treakle gave a truthful answer about his nephew in Alexandria and, thus, did not fail to “honestly” answer the relevant question. This application of McDonough is unreasonable.

In Conaway v. Polk, 453 F.3d 567 (4th Cir. 2006), this court viewed “honesty” not just as encompassing straight lies, but also failures to disclose. There is no compelling distinction between Porter’s McDonough claim and the one analyzed in Conaway.

Affirmed in part, vacated in part, and remanded with instructions.


(Shedd, J.) In my view, Porter’s claim of dishonesty during voir dire was examined and rejected by the Supreme Court of Virginia, and that determination is not an unreasonable application of federal law. Even assuming his actual-bias claim was not adjudicated in state court, it is without merit. I would affirm the dismissal of Porter’s habeas petition in full.

Porter v. Zook, Case No. 16-18, Aug. 3, 2018. 4th Cir. (Thacker), from EDVA at Richmond (Spencer). Robert Edward Lee Jr. for Appellant; Matthew P. Dullaghan for Appellee. VLW No. 018-2-164, 71 pp.

VLW 018-2-164

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