The U.S. 6th Circuit Court of Appeals has denied the appeal of Michael Holder. The decision (pdf) was a 2-1 decision, with the majority holding that Holder did indeed have effective counsel.

Holder, who was convicted of failure to disclose his HIV-positive status to his girlfriend, argued that his attorney during trial had not provided effective counsel because she had not challenged five jurors who expressed opposition to interracial relationships. Holder is black and was involved with a white woman.

The majority held that because the jurors assured the trial judge they could provide an impartial decision, they were not biased. In the majority opinion, Judge Thomas Philips, a visiting federal district judge, wrote, and Judge Ronald Gilman concurred:

Holder has presented no evidence that the five jurors were actually biased, nor that they were untruthful when each juror stated that he or she could be impartial and decide the case on the facts. Therefore, the court finds that Holder has failed to demonstrate either that his trial counsel’s failure to challenge the five jurors “permeated the entire trial with obvious unfairness,” Hughes, 258 F.3d at 457, or that the trial court committed plain error by allowing the five jurors to serve on the jury. No “actual bias” or “bias in fact” has been shown on the record in accordance with applicable United States Supreme Court and federal law. Although defense counsel’s decision to leave the five jurors on the panel might have been ill-advised, criminal defense lawyers should be given broad discretion in making decisions during voir dire.

But Judge Karen Nelson Moore disagreed with the conclusion of her colleagues. In her dissenting opinion, Moore wrote:

In my view, the assurances of impartiality given by jurors Flynn, Coppinger, and Moore are simply not credible given the racial biases revealed by these jurors and the underlying facts of this case…I believe that these jurors’ express aversion to interracial relationships created an unacceptable risk of actual bias. At the heart of this case was an interracial relationship between Holder and his white partner, Monica Kosecki, and the question of whether Holder informed Kosecki that he had HIV before the two had consensual sex. Jurors Coppinger and Moore made it clear that they found such interracial relationships to be unacceptable—at least for themselves and their families. Although both jurors told the court that they thought they could be fair and impartial, their tentative promises are untenable in light of their clear distaste for interracial relationships. Given the underlying facts of this case, Holder should not have been tried by a juror who considers interracial relationships to be beneath her “standard” or by a juror who believes that interracial couples should not have children because they result in “mixed breed” children. Accordingly, I believe that both Coppinger and Moore had actual bias and that their promises of impartiality should not have been believed.

In an interview with Holder, he said he was unsure if he was going to appeal the decision to the Supreme Court.

“I am shocked. But you know it is what it is. I am certainly shocked by the ruling, by the decision,” Holder said. “It’s crazy.”