Tagged: Southern District of New York

The Silver Verdict: Conviction Amidst Juror Struggles in High Profile Deliberation

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

After a three-week highly publicized federal trial in the Southern District of New York, former New York Assembly Speaker, Sheldon Silver, was convicted on all seven counts against him. Silver received nearly $4 million in corrupt payments from two different law firms and earned over $700,000 in referral fees from real estate firm, Goldberg & Iryami, by inducing real estate developers to retain the firm. Silver also received over $3 million in case referrals sent to Weitz & Luxenberg. Silver secured the asbestos case referrals from a doctor, and in exchange, directed New York State funds to the doctor’s research center. Silver was automatically expelled from his assembly seat after his conviction.

The conviction of Silver signifies many turning points for New York and presents a broad array of subject matter. The end of a powerful politician’s decades-long run. A vacant seat in the assembly. A recently honed focus by the federal government to end rampant political corruption. But another less obvious topic of discussion amidst Silver’s trial is the role the jury played in his conviction. On several occasions during the deliberation process, jurors vocalized their concerns and requested to be relieved. Though Silver was ultimately convicted by a unanimous decision, it is worth noting the issues expressed by these jurors and what exactly they signify.

Shortly after the jury began deliberations, one juror sent a note to Judge Valerie E. Caproni requesting to be dismissed. “I have a different opinion/view so far in this case and it is making me feel very, very uncomfortable,” the juror wrote. “I am so stressed out right now that I can’t even write normally. I don’t feel like I can be myself right now! I need to leave!” The judge denied the juror’s request. Furthermore, the juror had also requested a private meeting with the judge. Judge Caproni denied such a meeting, stating that, “the secrecy of jury deliberations is a cornerstone of our jury system.” Shortly after the request, the judge received another note stating that one of the jurors was “having difficulty distinguishing whether or not exchanging New York State funds for something in return is illegal” – the ultimate trial issue – and requested information on a code of conduct. Another juror, a cab driver, later asked to be excused based on a conflict of interest – his medallion owner allegedly was friends with Silver. The juror was kept on the case. After three days of deliberation, a guilty verdict was rendered.

Jury deliberations are secretive by nature. It is very rare to catch a real-time glimpse of the inner workings of such a system. But in Silver’s case, perhaps one of the most highly publicized trials New York has seen in recent history, the mindsets of some jurors were exposed for all to see – and for all onlookers to analyze. So what does it mean when there is such discord in the juror room – enough to warrant letters to the judge and requests for dismissal?

In the case of the first reluctant juror, defense lawyer, John Meringolo, believed it could perhaps be due to the juror’s unwillingness to convict. “When there’s chaos in the jury room, it’s always good for the defendant. Statistically, the conviction rate is so high in the federal system, when you have someone who’s willing to take a stand, it means that maybe he has a shot.” Meringolo proved correct. After a deliberation was reached, the juror identified herself and stated she was the only juror who doubted Silver’s guilt. “There were people who did not want to listen to anything I had to say — not many, a few,” Arleen Phillips said. “It was tense and I just wanted to get out of there.”

A juror’s pressure to ‘get out’ of deliberations (and oftentimes, jury duty itself) is a problem that has long plagued the justice system. As is one of the many ways in which a juror’s fairness is unable to be gauged, lawyers and judges alike cannot predict which jurors vote due to factually and legally cognizable reasoning and which vote simply to “get out of there.” But in Silver’s case, it was vocalized on three separate occasions that there were issues amongst the jurors that influenced their decisions in perhaps an inappropriate way. As evident in Phillips’ statement, unanimity was not reached due to her actual beliefs and interpretations of the facts and law, but rather, it seems that she was broken down by others.

It is no surprise that a juror majority will always try to influence the lone wolf in an effort to reach a verdict. But what happens if debate and discussion turns into pressure and coercion? At what point is a jury considered no longer able to render a truly unanimous verdict? Silver’s case is a prime example of such an issue, and just as it brings forth many questions as to the propriety of New York’s politicians, it is also an excellent vehicle in which to examine the practical difficulties of juror unanimity.

Related Readings:

A Recent Decision: Fatally Improper Conduct Between Deliberating Jurors

While the jury deliberation process remains safely secret in our system, there are limits to what jurors can do and say to each other in the deliberative process when that process spills over into the courtroom. Federal District Judge Kimba Wood recently granted a petition for a writ of habeas corpus  to a defendant in a case where a Bronx trial judge refused to investigate claimed racial bias among the deliberating jurors that was brought to his attention during deliberations.

In the underlying murder trial, the jury was in its third day of deliberations when a juror sent a note to the judge saying he had been called a racial epithet and felt as if he were being forced to agree with the other jurors. A second juror asked to have deliberations suspended until the following Monday due to overwhelming tension in the jury room. On Monday, the first juror sent another note saying he was exhausted and could no longer be objective. The judge declined defense counsel’s request for an in camera interview of the individual jurors, encouraged the jurors to continue deliberating, and sent them back. Three days later the jury convicted the defendant of manslaughter and he was sentenced to serve 20 years in prison. The Appellate Division affirmed, finding that the error had not been preserved, and the court of appeals denied leave. The magistrate judge issued a report advising that the habeas petition be denied because of the same procedural default.

Judge Wood disagreed. She held that defense counsel’s objection placed the trial court on notice of the constitutional basis for his objections. Thus, the state’s contemporaneous objection rule “served no legitimate state purpose.” On the merits, the Court found that the case was one of first impression in the Circuit – Whether Federal Rule of Evidence 606(b) which bars inquiry into the validity of a verdict, prohibits jurors from testifying about statements during deliberations. The court found that the policy behind the rule – preventing the badgering of jurors by a losing party and endless litigation – does not bar the reviewing court from considering such statements when they are brought to the court’s attention before the verdict is returned. The court held that the defendant was denied a fair trial because, on the basis of a verbal racist assault, which was evidence of actual bias – deprived the defendant of his right to an impartial jury.

Related Readings: 

Caveat Chatter: Digital Communication and Mens Rea in United States v. Valle

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

JSher_valle imageIn a recent post, we discussed issues of mens rea as they related to internet search history. Digital communications, however, have also recently come under scrutiny. In the hands of an adroit prosecutor, they are equally as revealing and equally powerful evidence as an individual’s internet search history.  Yet, when the prosecution relies exclusively on online communications to prove a defendant’s mens rea beyond a reasonable doubt, a skilled defense team may be able to raise issues surrounding the actual context of the communications that may preclude a conviction.

In an opinion and order issued on June 30, 2014 Judge Paul Gardephe of the Southern District of New York conditionally granted former NYPD Officer Gilberto Valle’s motion for a new trial on his conviction for conspiracy to commit kidnapping. The prosecution relied heavily on a mountain’s worth of digital communications between Valle and his alleged co-conspirators. Unfortunately, none of the evidence against Valle had any corroboration outside of the electronic world, and Valle never finalized any of his alleged “plans.” As a result, Valle’s defense counsel contended that his online activities constituted morbid fantasy role-playing, not conspiracy. The government conceded that some of Valle’s communications were fantastical, but argued that some were manifestations of Valle’s specific intent to commit the alleged crime of kidnapping.

Judge Gardephe observed that “Valle’s depraved, misogynistic … fantasies about his wife, former college classmates, and acquaintances undoubtedly reflect a mind diseased.” United States v. Valle, No. 12 Cr. 847 (PGG), 2014 WL 2980256, 2014 U.S. Dist. LEXIS 89650 (S.D.N.Y. June 30, 2014). His observation notwithstanding, however, the judge granted Valle’s motion for a new trial. He did so based on the theory that the government neither demonstrated proof beyond a reasonable doubt that Valle’s chats reflected true criminal intent as opposed to fantasy role-play, and that the government’s evidence was insufficient to distinguish the real communications from the conceded fantasy communications. (emphasis added). In Valle, the Court wrote:

Valle’s visits to Internet sites devoted to death, violence, and kidnapping; his possession of images depicting acts of sexual violence against women; his computer searches regarding kidnapping methods; and his 89 computer folders containing Facebook images of women he knew, all graphically illustrate his depraved interests.  The Government did not, however, meet its burden … the Government offered no evidence that would have permitted a reasonable juror to determine whether someone who is truly interested in kidnapping a woman would be more likely to engage in these activities than someone who is merely interested in fantasizing about kidnapping and committing acts of sexual violence against women.

Even digital communications that may appear damningly unassailable require corroboration or further investigation. As Learned Hand once ruminated, “it does not follow, because a jury might have found [the defendant] guilty of the substantive offence, that they were justified in finding him guilty of a conspiracy to commit it.” United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941).

Proof of mens rea may require something more than digital evidence alone, even if a jury is convinced of a defendant’s guilt. As a result, the prosecution in Valle fell short of building their case for a conviction as a matter of law, a fact that Valle’s attorneys managed to exploit in floating an argument sufficient to warrant a re-trial.

Cases and Related Readings: