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Denial of “For Cause” Challenges to Jurors Who Said They Needed to Hear “Both Sides of the Story” Required Reversal

The First Department reversed defendant’s conviction because the trial judge did not make inquiries to ensure jurors could be fair before denying defense counsel’s “for cause” challenges.  The jurors said they needed to hear “both sides of the story” indicating they would expect the defendant to testify.  The judge failed to immediately instruct the jury that the defendant was under no obligation to testify:

The court erred in denying, without further inquiry, defendant’s challenges for cause to three prospective jurors, against whom defendant ultimately exercised peremptory challenges. In response to defense counsel’s questioning during jury selection, the panelists at issue expressed, in one form or other, that it would be difficult for them to decide the case if they did not “hear from” defendant or hear his “side of the story.” The court did not instruct the panel on the People’s exclusive burden of proof and a defendant’s right not to testify, and it did not elicit from the panelists at issue “some unequivocal assurance” that they would be “able to reach a verdict based entirely upon the court’s instructions on the law” … .

A prospective juror’s statement to the effect that it is “important to hear both sides” raises the “appear[ance of] assertion of a defendant’s obligation to present a defense” … . Here, although the court had not yet instructed the jurors on the relevant legal principles, defense counsel framed several of her questions in terms of the “right to remain silent.” Further, counsel’s several other attempts to place her questioning in the context of the legal instructions the jurors would receive were cut short by the court, which indicated that it would instruct the jurors “at the appropriate time.” However, the circumstances called for a prompt instruction on the relevant principles regarding the burden of proof and a defendant’s right not to testify or present evidence, along with the elicitation of unequivocal assurances that the panelists would follow that charge. People v Jackson, 2015 NY Slip Op 01385, 1st Dept 2-17-15

 

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Judge’s Failure to Question Prospective Juror Re: the Juror’s Possible Bias In Favor of Police Officers Was Reversible Error/Prosecutor’s Suggestion in Summation that Simply Being a Defendant Is Evidence of Guilt Was Grounds for Reversal As Well

The First Department reversed defendant's conviction because the trial judge did not further question a juror who indicated bias in favor of police officers.  [The judge, in denying defense counsel's “for cause” challenge, erroneously indicated it was defense counsel's role to question the juror about the juror's ability to be fair.]  In addition, the prosecutor's suggestion in summation that simply being a defendant is evidence of guilt was grounds for reversal:

Criminal Procedure Law § 270.20(1)(b) provides that a party may challenge a prospective juror for cause if the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” Upon making this type of challenge, “a juror who has revealed doubt, because of prior knowledge or opinion, about [his] ability to serve impartially must be excused unless the juror states unequivocally on the record that [he] can be fair” … . The CPL “does not require any particular expurgatory oath or talismanic words” …, but challenged jurors “must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence” … . Those who have given “less-than-unequivocal assurances of impartiality . . . must be excused” and “[i]f there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another” … .

In this case, the prospective juror gave a response that was uncertain at best, stating that he did not know and “couldn't say” whether he would be able to judge an officer's credibility as opposed to a civilian witness. * * * Given this ambiguity … it was incumbent upon the trial court to take corrective action to elicit unequivocal assurance from the prospective juror that he would be able to reach a verdict based solely upon the court's instructions on the law … . …

…[T]he prosecutor's summation remarks regarding reasonable doubt also constituted reversible error, as these remarks suggested that the jury should convict based on facts extraneous to the trial. Specifically, the comments “linked [the defendant] to every defendant who turned out to be guilty and was sentenced to imprisonment,” thus inviting the jury to consider his status as a defendant as “evidence tending to prove his guilt” … . Moreover, the prosecutor's comments tended to minimize the jury's sense of responsibility for the verdict. These remarks exceed the bounds of permissible advocacy. People v Jones, 2015 NY Slip Op 00797, 1st Dept 2-3-15


Conviction Reversed—Court Denied For Cause Challenge to Biased Juror Without Eliciting an Unequivocal Assurance the Juror Will Be Impartial

The Second Department reversed defendant’s conviction because an admittedly biased juror was not eliminated after defendant’s “for cause” challenge.  (Defendant exhausted his peremptory challenges.):

When a question is raised regarding a prospective juror’s ability to render an impartial verdict, the prospective juror must expressly state in unequivocal terms that “his prior state of mind concerning either the case or either of the parties will not influence his verdict, and he must also state that he will render an impartial verdict based solely on the evidence” … . In considering whether such statements are unequivocal, the juror’s testimony must be taken as a whole, and where there remains any doubt, the prospective juror should be discharged for cause … . Thus, when a potential juror states that he or she questions or doubts that he or she can be fair in the case, the trial judge should either elicit some unequivocal assurance of the juror’s ability to be impartial or excuse the juror … .

Here, as the prospective juror stated that she could not believe that police officers would get on the witness stand and lie about a person selling drugs, the court erred in denying the defendant’s challenge for cause without first eliciting some unequivocal assurance of the juror’s ability to be impartial … . People v Harris, 2015 NY Slip Op 00554, 2nd Dept 1-21-15

 

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Reversible Error to Deny For Cause Challenge to Biased Juror/Defendant’s Counsel Ineffective

The Fourth Department reversed defendant’s conviction because one of the jurors indicated a bias in favor of police officers [the for cause challenge to the juror was denied and the peremptory challenges were exhausted] and because the defendant was denied his right to effective assistance of counsel:

Upon questioning by defense counsel, a prospective juror stated that there was a possibility that he would have “sympathy” for police officer witnesses. Despite further questioning on the issue, the prospective juror did not provide an unequivocal assurance that he would not be biased in favor of the police. It is well settled that, once a potential juror has indicated a possible bias, he or she “must be excused unless [he or she] provide[s] unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence’ ” … . Inasmuch as the court erred in denying defendant’s challenge for cause, we reverse the judgment and grant a new trial.

We further agree … that reversal is also required on the ground that he was denied effective assistance of counsel based upon, inter alia, defense counsel’s elicitation of testimony that had been precluded by the court’s pretrial ruling and defense counsel’s characterization of defendant as a “drug dealer” on summation … . Although “[i]solated errors in counsel’s representation generally will not rise to the level of ineffectiveness” … , here defense counsel’s failures were “so serious, and resulted in such prejudice to the defendant, that he was denied a fair trial thereby” … . People v Tapia-DeJesus, 2015 NY Slip Op 00167, 4th Dept 1-2-15

 

Unsworn Juror Properly Dismissed Based Upon the “Two-Hour-Trial-Delay” Rule

The First Department determined the dismissal of a juror based on transportation problems which would delay the trial more than two hours was proper.  Apparently none of the jurors had been sworn at the time of the dismissal. Because the standards for dismissing a juror are higher for sworn, as opposed to unsworn, jurors, the fact that the juror was unsworn was of no consequence:

…[D]efendant had no objection to a delay in swearing the jurors after the completion of jury selection, and thus effectively “agreed to create a category of jurors, i.e., selected but unsworn jurors, about which the Criminal Procedure Law is silent as to criteria for discharge” … . The record reveals that the court merely used CPL 270.35 as a guideline in deciding whether to delay the trial by waiting for the juror. In any event, “[t]he power to excuse an unsworn juror is much broader than the statutorily limited power to discharge a sworn juror . . . .” … . Therefore, if the criteria set forth in CPL 270.35 for the dismissal of a sworn juror have been met, then, a fortiori, the same considerations would warrant dismissal of a selected but unsworn juror … .

“The Court of Appeals has held that the two-hour rule' gives the court broad discretion to discharge any juror whom it determines is not likely to appear within two hours” … . Using the two-hour rule as a guideline, it is clear that the court providently exercised its discretion in replacing the juror with an alternate … . People v Sanchez, 2014 NY Slip Op 09031, 1st Dept 12-30-14


T-Shirts With the Victim’s Photo Worn by Family Members During the Murder Trial Did Not Deprive Defendant of a Fair Trial

The Second Department, in a full-fledged opinion by Justice Miller, over a dissent, determined that defendant was not denied a fair trial because the victim's family wore T-shirts “remembering” the victim in the courtroom:

The court stated that “it would be appropriate to make a better record of what the shirt was. It was [a] white tee shirt with a silk screen with a picture of the deceased with some written language on it.” The court stated that the shirts “weren't inflammatory.” The court had “noticed that shirt” previously, but it “couldn't read what was written on it.” The court stated that the members of the Walton family “sat in the second row of the audience” and that the T-shirts were “not flauntily [sic] displayed in front of the jury, nor . . . did any members of the family bring undue attention to [them].” The court further stated that “most of the members of the family had an outer garment on top of the tee-shirt” so that the jury “wasn't even capable of seeing the entire thing.” The court noted that “[w]hen counsel made the objection, [it] responded and made a record at that time indicating that [it] saw nothing wrong with those shirts.” The court concluded that the conduct of Walton's family had “not inflamed” the jury.

A criminal defendant's right to a trial by an impartial jury is guaranteed by both the federal and state constitutions (see US Const, Sixth Amend; NY Const, art I, § 1). “The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury” … . “[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” … .  * * *

…[A] trial free from a “coercive . . . atmosphere” is a “fundamental principle of due process [that] is well established” … . It has long been recognized in this State that such an atmosphere of coercion may arise through the conduct of spectators: “[i]t is not to be tolerated that men [or women] should go into such a place and manifest their feelings, prejudices or passions, for the purpose of exerting an influence upon those who sit in judgment upon the rights of parties” … .

However, “[t]he safeguards of juror impartiality . . . are not infallible [and] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote” … . “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen” … .

A trial court, which is in the best position to detect and evaluate the danger that spectator conduct may present to the integrity of the trial process, has a constitutional duty to monitor the atmosphere of the courtroom to ensure that the jury is not exposed to spectator conduct that poses a coercive threat to the jury's ability to remain impartial (see US Const, Sixth Amend; NY Const, art I, § 1…). * * *

… [W]hether any particular conduct, or a court's response to it, has violated a defendant's right to an impartial jury, depends on the particular circumstances of each case … . Such circumstances may include the nature of the crime and the evidence adduced at trial, the nature of the spectator conduct, and the degree to which the jury was exposed to such conduct. It is not necessary for an actual prejudicial effect on the jury to be established … . Ultimately, “the question is whether the [spectator conduct] presents an unacceptable risk . . . of impermissible factors coming into play in the jury's consideration of the case” … . People v Nelson, 2014 NY Slip OP 09019, 2nd Dept 12-24-14

 

Court’s Failure to Inquire About a Juror’s Sleeping During Deliberations Required Reversal

The First Department reversed defendant’s conviction and ordered a new trial because the trial judge did not conduct a “probing inquiry” after being informed by jurors that a juror was sleeping during the deliberations:

The court should have conducted a “probing and tactful inquiry” … into whether, and to what extent, the juror had been sleeping, in order to determine whether this behavior rendered him grossly unqualified … . The court’s observation of jury demeanor during the supplemental instruction was not enough to resolve the issue of what was going on in the jury room, and this was not a case where reliance on a general instruction was an appropriate exercise of discretion … . Without any inquiry of the allegedly sleeping juror, or of any other juror, it is impossible to know whether the juror was innocuously dozing off from time to time, or whether he slept through so much of the deliberations that he could be deemed absent, such that the verdict was reached by a jury of 11 persons. Accordingly, we are constrained to reverse. People v Franqui, 2014 NY Slip Op 08736, 1st Dept 12-11-14

 

Question Posed by the Prosecutor to Prospective Black Jurors About Whether They Felt Police Officers Unfairly Target Members of the Minority Community Required Reversal

The Fourth Department reversed defendant’s conviction, finding that the prosecutor’s explanation for excluding black jurors was not race-neutral.  The prosecutor asked the jurors whether they felt that police officers unfairly target members of the minority community:

Pursuant to Batson and its progeny, “the party claiming discriminatory use of peremptories must first make out a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more [prospective] jurors for an impermissible reason . . . Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory—–step two … The third step of the Batson inquiry requires the trial court to make an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented” … . * * *

With respect to step two of the analysis, we conclude that the People failed to meet their burden of setting forth a “race-neutral reason” for striking the challenged prospective jurors … . “A race-neutral reason naturally means an explanation based on something other than the race of the [prospective] juror’ ” …, and must be “related to the particular case to be tried” … . Although the burden on the nonmoving party at this stage of the analysis is relatively minimal, “[a] prosecutor’s explanation may not be sustained where discriminatory intent is inherent in the explanation” … .

Here, the People excluded the two prospective jurors at issue solely based upon their answers to a race-based question, i.e., whether they believed that police officers “unfairly target members of the minority community” … . Notably, that question was unrelated to the facts of this case, which does not involve any allegation of racial profiling . We are unpersuaded by the People’s assertion that the question was “designed to ensure that the jurors would not automatically accept or reject police testimony.”  People v Mallory, 2014 NY Slip Op 06728, 4th Dept 10-3-14

 

Denial of For Cause Challenge to Juror Required Reversal

The Third Department determined the trial court erred in denying defendant’s “for cause” challenge to a juror:

“Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . Here, during jury selection, juror No. 153 stated that he was “very uncomfortable” about the alleged use of a firearm during the commission of the charged crimes. When asked by defense counsel if his stated discomfort was something that would affect his ability to keep an open mind, juror No. 153 responded, “It might. I can’t say for sure what it is, but it’s a concern to me.”

After questioning of this panel had concluded, and out of the presence of the prospective jurors, defense counsel challenged juror No. 153 for cause. County Court, stating that defense counsel failed to ask any follow-up questions of juror No. 153 at the time the juror made the subject statements in order to make out an appropriate foundation for cause, denied the challenge. Having heard the statements by juror No. 153, County Court should have either granted the challenge for cause or conducted a further inquiry of that juror and obtained express, unequivocal assurances on the record of his impartiality … . People v Young, 2014 NY Slip Op 04975, 3rd Dept 7-3-14

 

Court’s Failure to Conduct an Inquiry After Learning of a Juror’s Comments During Trial Indicating Her Lack of Impartiality Required Reversal

The Second Department determined that the trial judge had been made aware of information raising the possibility that a juror would not be impartial and erred in not conducting an inquiry:

The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case … . In addition, the “trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . Although the Court of Appeals acknowledged that an “in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror” (People v Buford, 69 NY2d 299 n 4), here, defense counsel wanted the juror to be questioned.

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (id. at 299) of juror number seven, during the trial, when it was alleged that he had stated “the evidence speaks for itself or they got themsel[ves] into this situation” …, and subsequently, after deliberations had commenced, when it was alleged that juror number seven had engaged in flirtatious conduct with someone connected to the defendant as well as someone connected to the codefendant … . Since the court’s general inquiry of the jurors with respect to the first incident failed to meet the requirements of Buford …, and no inquiry at all was made with respect to the later incidents …, it is unknown whether the juror held an opinion that affected his ability to be impartial … . Such an error is not subject to harmless error analysis and, thus, the conviction must be reversed … . People v Henry, 2014 NY Slip Op 04962, 2nd Dept 7-2-14

 

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