Snohomish County Superior Courthouse in Everett, Washington. (Kevin Clark / The Herald)

Snohomish County Superior Courthouse in Everett, Washington. (Kevin Clark / The Herald)

Appeals court orders new trial in Mill Creek sexual assault case

The court ruled a biased juror sat on Nathan Smith’s trial, reversing his conviction for sexually abusing a child.

MILL CREEK — Appellate judges last week granted a new trial for a Mill Creek man convicted of sexually assaulting a child because of a biased juror.

In September 2021, Nathan Smith was sentenced to nine years in prison for the rape of a child in the first degree. He was convicted of sexually assaulting a boy while Smith was staying at the house of the boy’s mother in 2018.

In August, the state Court of Appeals ruled in a 2-1 decision that one juror’s statements showed the defendant was denied the “fundamental right of the accused” to a fair and impartial jury.

“The presence of a biased juror is per se prejudicial and requires reversal for a new trial,” the judges wrote.

Before the trial, Smith, now 39, moved to strike three jurors from the trial for cause. Snohomish County Superior Court Judge Janice Ellis denied all of the motions. Smith’s lawyers used “peremptory challenges” to excuse two of the jurors, but in doing so, exhausted the last of his challenges, and left Smith unable to excuse the last juror.

That juror said she had a hardship related to her job at a small bakery. Being on the jury would deplete the leave time she had accrued and affect her finances, according to the ruling.

When asked whether she would be distracted by her work situation, she responded, “probably not, although I will probably work all weekend, but I don’t know.”

During jury questioning, defense counsel asked the juror if Smith not testifying made him seem guilty. She said it “logically seems like if you are innocent, you want to go up and tell your story about what happened,” according to court records.

The court interjected, informing her that defendants have a constitutional right not to testify, and if Smith chose not to testify, that it could not be used against him, according to the decision. She said that instruction would change her mind.

“That would put it at neutral, like him not testifying would not make me think he is more guilty,” the juror said.

The appellate judges emphasized this part of the juror’s statement.

“There is nothing neutral about the presumption of innocence,” the judges wrote. “Jurors who exhibit prejudice by being unwilling or unable to follow the law or participate in deliberations are unfit to serve on the jury.”

The appeals court found the juror was “unable to commit to the presumption of innocence.” When asked by counsel whether she would be tempted to change her vote to whatever the rest of the group thinks, even if she disagreed, the juror said:

“If I was a 100% very confident, then no. But if I was like, I believe this evidence, or whatever, but I am kind of like, on the fence, then I may agree with everyone.”

Being “on the fence” implied there isn’t proof beyond a reasonable doubt the defendant is guilty, according to the decision. By hypothetically agreeing with everyone when on the fence, the juror contradicted the “unequivocal instructions on the law and deliberation process.”

Court of Appeals Judge Leonard Feldman dissented from the majority decision, noting the 1991 state Supreme Court decision of State v. Noltie held that “equivocal answers alone do not require a juror to be removed when challenged for cause.” (An equivocal answer has two possible meanings.)

Feldman argued even though the juror described herself as “not a confrontational person,” if she was “100% very confident,” she would not change her vote.

“Such equivocal statements — expressed in terms of possibility and not probability — do not require a trial court to excuse a prospective juror for cause,” Feldman wrote.

The judge also argued the juror did not unequivocally say she would not follow prosecutors’ guidelines on the presumption of innocence. Her use of the “on the fence” phrase was used to describe a circumstance where she was unsure if prosecutors had proven guilt beyond a reasonable doubt.

“Far from disavowing her obligations under the law, (the juror) unambiguously confirmed that she would be fair and impartial,” the judge said.

According to the majority opinion, the dissent focused too narrowly on some of the juror’s statements, took them out of context and applied other statements too broadly to “rehabilitate different problematic assertions.”

The juror’s “on the fence” statement was said in contrast with the situation where she would hold steadfast to her vote: if she was “100% very confident,” the judges wrote.

“Collectively, this reflects a probability of actual bias,” Acting Chief Judge Cecily Hazelrigg wrote.

Jonathan Tall: 425-339-3486;; Twitter: @EDHJonTall.

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