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THE “DUAL JURY” PROCEDURE USED TO TRY DEFENDANT, WHO WAS CONVICTED, AND THE CO-DEFENDANT, WHO WAS ACQUITTED, ALLOWED THE CO-DEFENDANT’S ATTORNEY TO ACT AS A SECOND PROSECUTOR; CONVICTIONS REVERSED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s (Feliciano’s) murder and robbery convictions, determined the “dual jury” procedure used to try Feliciano and his co-defendant, Roberts, deprived Feliciano of a fair trial. Feliciano’s defense was he was with Roberts when Roberts committed the crimes but did not participate. Roberts’ defense was he did not participate in the crimes at all. Feliciano was convicted and Roberts was acquitted:

In reviewing Feliciano’s claim on appeal that he was entitled to a severance, we are required to consider the entire record, including, retrospectively, the full trial record … . Feliciano must demonstrate that he was unduly prejudiced by the severance and that a joint trial “substantially impair[ed defendant’s] defense” … . “[T]he level of prejudice required to override the strong public policy favoring joinder” exists “where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” … . A trial before dual juries, which constitutes a modified form of severance, is to be used sparingly and is evaluated under standards for reviewing severance motions generally, as set forth above … . * * *

[Damaging] … testimony and evidence was unsolicited by the People and would never have been presented to Feliciano’s jury, but for Roberts’ cross examination. Roberts’ counsel’s pursuit of his client’s defense, contemporaneously undermined Feliciano’s. Accordingly, he effectively became a “second prosecutor” and was able to impeach … witnesses to Feliciano’s detriment in a manner that the People were unable to. Under these circumstances, a dual jury trial was improper as it did not prevent Feliciano from being prejudiced by Roberts’ antagonistic defense … . People v Feliciano, 2020 NY Slip Op 07145, First Dept 12-1-20

 

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