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648 S.E.2d 610

No. 33218 -       Sally Black, Executrix of Estate of Charles A. Black, et al., v. CSX Transportation, Inc.

Starcher, J., concurring:

            From the very beginning of the jury selection process, the potential juror at issue in this case, Dr. Polack, demonstrated clear bias and prejudice in his statements. In O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002), this Court made a firm rule about prospective jurors who exhibit prejudice or bias about a case: the juror is, as a matter of law, disqualified. As we said in Syllabus Point 5 of O'Dell:

                 Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair.

This is not a discretionary test which requires subtle balancing by a trial judge, as the dissenting opinion might suggest. It is an absolute, mandatory, black-letter, and therefore easy-to-apply rule.

            The dissenting opinion opens with a question asking plaintively, where did the trial judge go wrong? The answer is that the trial judge - with some help from counsel for the defendant - forgot that Syllabus Point 5 of O'Dell is a mandatory rule. Dr. Polack gave statements evidencing a clear, but general, dislike of litigating plaintiffs and their attorneys, and a clear distrust of information about the dangers of exposure to asbestos. In other words, Dr. Polack indicated a prejudice against one of the litigants, and a bias to reject that side's evidence. As a matter of law, once Dr. Polack issued his statements of prejudice and bias, he should have been excused immediately.

            The dissenting opinion puts a nice spin on Dr. Polack's subsequent, rehabilitative statements, suggesting that they should have led the majority to believe that what Dr. Polack really meant to say was that he would set aside his previously expressed prejudices and biases and would follow the judge's instructions about the law. And this is where the dissenting opinion goes wrong. The whole point of O'Dell was to prevent judges and attorneys from rehabilitating prospective jurors who clearly have ingrained prejudices and biases. Specifically, O'Dell was meant to preclude rehabilitation through the use of “magic phrases” - rehabilitation that usually comes in the form of a question from the attorneys, not the trial judge. A question like “even though you just said you're biased and prejudiced, will you at least act like you're fair and act like you're following the law when you're ruling for my client?” As we said in O'Dell:

                 Trial judges must resist the temptation to “rehabilitate” prospective jurors simply by asking the “magic question” to which jurors respond by promising to be fair when all the facts and circumstances show that the fairness of that juror could be reasonably questioned.

O'Dell, 211 W.Va. at 290, 565 S.E.2d at 412. In sum, the dissenting opinion ignores the whole point of O'Dell by suggesting that this Court should have approved of the defense lawyer's and trial judge's resurrection of Dr. Polack after he indicated his bias and prejudice.

            I am a stout believer in and defender of democracy, and I believe that juries are as pure a representation of direct democracy as you can have in our republic. The members of a jury - like our elected representatives - must be ready to render service with an open mind, ready to recognize their predispositions but ready to set them aside when they are in conflict with the facts or the law. But when a person expresses a clear prejudice against one party, or a clear bias in favor of certain theories or forms of evidence, and does nothing to reflect on the possible folly of holding the prejudice or bias regardless of the facts, then the person has no business being qualified as a juror. Circuit judges must, above all else, preserve the integrity and vitality of the jury system by seating only those prospective jurors who demonstrate - by plain expression rather than recitation of a “magic phrase” - clear impartiality.

            The potential juror in this case, Dr. Polack, demonstrated clear bias and prejudice. O'Dell mandated that the potential juror be excused for cause, as a matter of law. The fact that the trial judge did not disqualify Dr. Polack after the defense lawyers elicited a few words of impartiality (while everything else he said was a plain expression of predisposition) violated the spirit of O'Dell.

            I therefore respectfully concur with the majority opinion's decision to reverse the trial court's orders, and to remand the case for a new trial.