A JUROR’S ATTEMPT TO DEVELOP A RELATIONSHIP WITH A JAILED COOPERATING PROSECUTION WITNESS DURING DELIBERATIONS EXHIBITED ACTUAL AND IMPLIED BIAS REQUIRING A NEW TRIAL; A HARMLESS ERROR ANALYSIS IS NOT APPLICABLE (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Justice Renwick, determined that a juror who attempted to develop a relationship with a jailed cooperating prosecution witness during deliberations exhibited actual and implied bias, thereby depriving defendant of a fair trial. Although the juror and the witness were not able to speak to each other during deliberations, there was a missed call. After the trial the juror developed a serious relationship with the witness through letters and phone calls and expressed a desire to marry the witness. The First Department noted that a harmless error analysis was not appropriate:

Juror misconduct includes both “actual bias” and “implied bias.” Despite its name, “actual” bias merely requires proof of “a state of mind” that is “likely” to preclude a juror from rendering an impartial verdict … . Under CPL 270.20(1)(b), “[a]ctual bias. . . is not limited . . . to situations where a prospective juror has formed an opinion as to the defendant’s guilt” … . It may be demonstrated where a prospective juror’s conduct indicates her inability to follow the court’s instructions.

“Implied bias” exists where a juror “bears some … relationship to any such person [defendant, witness, prosecution] of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (CPL 270.20[1][c] … ). “[T]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … .

Implied bias “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … .

Here, there was both actual and implied bias. The misconduct by Juror No. 6 was willful and blatant – the juror was admittedly attracted to the witness, a cooperating witness testifying on behalf of the People, and sought to develop a relationship with him while jury deliberations were still underway – even though she knew this was not permitted. The juror knew during deliberations that the witness had tried to call her back, suggesting that the interest was mutual, and the juror is now in a very serious relationship with the witness and seeks to marry him. Although the juror denied that her feelings about the witness affected her thinking about defendant, she was at least arguably more likely to credit his testimony and could subconsciously have sought to aide the side with which the witness was aligned … . People v McGregor, 2019 NY Slip Op 08283, First Dept 11-14-19