Petition — Smith v. Phillips
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IN THE MICHAEL RODAK, JR. CURE
Supreme Court of the United States
October Term, 1980
HAROLD J. SMITH, Superintendent,
Attica Correctional Facility,
Petitioner,
against
WILLIAM R. PHILLIPS,
Respondent.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
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PETITION FOR A WRIT OF CERTIORARI
Rosert M. MorcentHau
District Attorney
New York County
Attorney for Petitioner
155 Leonard Street
New York, New York 10013
(212) 553-9000
Rosert M. Pitter
Davin H. Sterner
Assistant District Attorneys
Of Counsel
Question Presented
In a state criminal prosecution, after a hearing, a trial
judge concluded beyond a reasonable doubt that prosecu-
torial misconduct had not in any way prejudiced the de-
fendant. Has a federal court departed from governing
legal principles and unjustifiably interfered in a state crim-
inal prosecution when, without disagreeing with the state
trial judge’s finding that there was no prejudice, it none-
theless grants habeas corpus relief merely because it dis-
approves of the prosecutor’s conduct?
TABLE OF CONTENTS
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Jurisdiction .......... Ue sdeiccdipabiaeais Ret ee OT
Constitutional and Statutory Provisions Involved ....
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The State Post-Judgment Proceedings ..........................
The Federal Habeas Corpus Proceeding ........................
The District Court Decision 00200...
The Second Circuit Decision 0...
Reasons for Granting the Writ... nn.
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TABLE OF AUTHORITIES
PAGE
Cases:
Banks v. United States, 204 F.2d 666 (Sth Cir.), cert.
denied, 346 U.S. 857 (1953) 13n.
Brady v. Maryland, 373 U.S. 83 (1963) 13, 15
Donnelly v. DeChristoforo, 416 U.S. 637 (1974) .. 10, 14, 15
Francis v. Henderson, 425 U.S. 536 (1976) ......... 14
Mikus v. United States, 433 F.2d 719 (2d Civ, 1970) . 8n.
People v. Genovese, 10 N.Y.2d 478, 180 N.E.2d 419, 225
PRC IOI os csissssueKisccssaseeactocemnubacwarn 13n.
People v. Phillips, 87 Mise.2d 613, 384 N.Y.S.2d 906
(1975), aff’d, 52 A.D.2d 758, 384 N.Y.S.2d 715
(1976), leave to appeal denied, 39 N.Y.2d 949, 386
Be CIEE isha cecshcive yy visitenstavenatoenparnriclanctics 2,6
People v. West, 38 A.D.2d 548, 327 N.Y.S.2d 493, aff’d,
32 N.Y.2d 944, 300 N.E.2d 734, 347 N.Y.S.2d 203
(1973) . hs, 13n.
Phillips v. Smith, 485 F. ‘Supp. 1365 (SDNY. 1980),
aff’d, —— F.2d —— (2d Cir. decided September
BN I isso cavcassntecassasixed ovistcanastirresecloubaanavcvaeacianmees 2
Remmer v. United States, 347 U.S. 227 (1954) .. 8n., 10, 11,
12, 14, 15
Sullivan v. Fogg, 613 F.2d 465 (2d Cir. 1980) 00.0... 11
United States v. Agurs, 427 U.S. 97 (1976) ...........8, 10, 11,
12, 13, 15
United States v. Avila-Macias, 577 F.2d 1384 (9th Cir.
MIN cigs sty ad. Contes teanis siccsoaal ats cace sash inbedsaaet aksa nee CA 13n.
PAGE
United States v. Gross, 614 F.2d 365 (3d Cir. 1980),
cert. denied, US. , 100 S.Ct. 3019 (1980) 11
United States v. Johns, 615 F.2d 672 (5th Cir. 1980) 11
United States v. Moten, 564 F.2d 620 (2d Cir. 1977),
cert. denied, 434 U.S. 959 (1977) 13n.
United States v. Wood, 299 U.S. 123 (1936) 8n.
Constitutional Provisions:
United States Constitution, Fourteenth Amendment 2
Statutes:
New York Criminal Procedure Law §270.35 sa ocaee
28 United States Code Section 1254(1) Pen 2
28 United States Code Section 2254(a) 3, 10, 15
Other Authorities:
The Mind and Faith of Justice Holmes (Lerner ed.
1943) . ae naltedet indi ssi TakAL pa teictnseoaeaiiecrocixcooi 15
No.
IN THE
Supreme Court of the United States
October Term, 1980
Harotp J. Smiru, Superintendent,
Attica Correctional Facility,
Petitioner,
against
Wim R. Pxt.uips,
Respondent.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
$<
PETITION FOR A WRIT OF CERTIORARI
To The Honorable Chief Justice and the
Associate Justices of the Supreme Court:
The New York County District Attorney on behalf of
the State of New York and Harold J. Smith, Superintendent
of Attica Correctional Facility, petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Second Circuit in this case.
Opinions Below
The opinion of the Court of Appeals for the Second
Circuit (App. A, infra, la-12a) is not yet reported. The
opinion of the United States District Court for the South-
ern District of New York (App. B, infra, 13a-29a) is re-
ported at 485 F. Supp. 1365. The opinion of the state trial
judge denying the motion to set aside the conviction (App.
K, infra, 33a-57a) is reported at 87 Misc. 2d 613, 384 N.Y.S.
2d 906. The order of the Appellate Division, First Depart-
ment, affirming the judgment of conviction without opinion
is reported at 52 A.D.2d 758, 384 N.Y.S.2d 715 (1976).
Finally, the order of Chief Judge Breitel denying leave to
appeal to the New York Court of Appeals is reported at
39 N.Y.2d 949, 386 N.Y.S.2d 1039 (1976).
Jurisdiction
The judgment of the Court of Appeals was entered on
September 26, 1980 (App. F, infra, 58a-59a). Rehearing
was denied on December 8, 1980 (App. G, infra, 60a-61a).
The jurisdiction of this Court is invoked under 28 U.S.C.
1254 (1).
Constitutional and Statutory Provisions Involved
The Fourteenth Amendment of the United States Con-
stitution provides, in pertinent part:
...+ LNJor shall any State deprive any person of life,
liberty, or property, without due process of law;
3
28 U.S.C. 2254(a) of the United States Code provides:
The Supreme Court, a Justice thereof, a circuit judge,
or a district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Con-
stitution or laws or treaties of the United States.
Statement
On Christmas Eve 1968, on New York’s fashionable
upper east side, in an apartment used as a house of prosti-
tution, a pimp named Jimmy Smith and Sharon Stango, a
prostitute, were shot in the head at point blank range and
killed and a customer, Charles Gonzalez, was shot and
left to die by a then unknown gunman with no apparent
motive. After the shooting, the gunman calmly rang for
the elevator, rode down to the lobby, thanked a handyman
for opening the door for him and walked off into the night.
Gonzalez survived the shooting but, along with the
doorman and handyman, could provide the police with
only a composite sketch of the killer and a general descrip-
tion of the clothes he wore. In addition, one of Smith’s
other employees suggested that the killer might have been
a police officer.
The investigation proved fruitless until 1971. In that
year, the highly publicized Knapp Commission, which was
appointed in 1970 by Mayor Lindsay to investigate police
corruption in New York City, held a series of televised
hearings. One of the star witnesses was police officer Wil-
+
liam Phillips, who agreed to cooperate after having been
caught shaking down a notorious prostitute by commission
investigators.
During his televised testimony, Phillips was seen by a
detective, assigned to investigate the Smith-Stango mur-
ders, who believed that Phillips fit the composite sketch of
the killer. A subsequent investigation showed that Phillips
had been ‘‘shaking down”’’ Smith for years, but in late 1968
Smith had refused to make further payments. The day
before the murders, according to a woman who worked for
Smith, a man whom she identified as Phillips threatened
to ‘‘blow Smith’s ... head off’’ if Smith did not pay $1,000
the following day. In addition, the surviving victim as well
as the handyman identified Phillips as the killer.
Phillips was indicted and brought to trial. All of the
evidence specified above was introduced. Phillips testified
in his own behalf, denied committing the murders and had
an alibi supported by several witnesses. The jury reported
itself deadlocked (10-2 for acquittal) and a mistrial was
declared.
Between the first and second trials, there came to light
evidence which destroyed Phillips’ alibi as well as evidence
showing that he, despite his denial, had possessed a sweater
identical in color to that worn by the killer. The second trial
resulted in conviction for both murders and the attempted
murder and Phillips was subsequently sentenced to a term
of from twenty-five years to life imprisonment.
5
The State Post-Judgment Proceedings
About two weeks after conviction, Richard Kuh, the Dis-
trict Attorney of New York County, learned that during
trial the trial prosecutor knew but did not disclose that a
juror had applied by letter for a job with the prosecutor’s
office. Mr. Kuh immediately informed both the trial judge
and defense counsel! about the letter. An extensive hearing
was held, at which both the juror and the trial prosecutor
were fully cross-examined.
Juror John Dana Smith, a Vietnam veteran who was
about to graduate from Columbia University, had been
accepted by the defense even though he had said that he
was actively seeking employment as a federal law enforce-
ment officer and had had dealings with the New York
County District Attorney’s Office when he worked as a store
detective. During trial, upon learning that the District
Attorney’s Office was hiring investigators, Smith sent a
letter applying for a position without mentioning his juror
status. He believed that the application had nothing to
do with his duty as a juror and that the trial prosecutor
would have no reason to know about the application. At
the hearing, he stated unequivocally that the application
had no effect whatsoever on his deliberations or verdict.
Smith did not hear from the prosecutor’s office until after
trial because the trial prosecutor, having been informed of
the application, directed that no one have any contact with
the juror until the trial’s conclusion.
Also on the jury was a man named Bethel who, the trial
prosecutor discovered during trial, was a defendant in a
6
pending misdemeanor drug possession case and who had
agreed to testify against the seller of drugs in exchange
for dismissal of his case. The prosecutor informed the
court and defense counsel about Bethel, and he was ex-
cused and replaced by an alternate.
Even though there were other alternates available, how-
ever, the trial prosecutor believed that juror Smith had
revealed fully on voir dire his desire to be a law enforce-
ment officer. The trial prosecutor did not inform the court
or defense counsel of Smith’s application for a job because
it was consistent with his disclosure on voir dire and be-
cause no one from the prosecutor’s office had contacted the
juror.
The trial judge found that Smith had been incredibly
naive in sending the letter. Still, the judge credited Smith’s
‘*faith in his own integrity, in his own ability to render a
verdict on the evidence, which permitted him to send his
letter of application to the District Attorney and ignore
the possible construction which might be placed on such
action’’ (App. E, infra, 43a-44a). In addition, the court
found that the prosecutor had made a ‘‘serious error in
judgment’’ by failing to disclose the letter. Nonetheless,
in a lengthy and carefully reasoned opinion, following both
state and federal cases, the judge denied the motion to set
aside the verdict, concluding beyond a reasonable doubt
that the juror had been impartial (id. at 57a). The convic-
tion was affirmed on appeal (52 A.D.2d 758, 384 N.Y.S.2d
715 [1976]), and Chief Judge Breitel denied leave to appeal
to the Court of Appeals (39 N.Y.2d 949, 386 N.Y.S.2d 1039
(1976]). *
The Federal Habeas Corpus Proceeding
The District Court Decision
On April 5, 1979, Phillips sought habeas corpus review
in the United States District Court for the Southern Dis-
trict of New York. The thrust of the petition was that the
State had used allegedly immunized testimony at trial in
violation of Phillips’ privilege against self-incrimination.
On May 25, 1979, Phillips filed what he called a ‘‘supple-
mental petition’’ ‘‘to raise every possible federal issue.’’
In this petition, after merely stating the facts adduced at
the post-trial hearing, Phillips alleged in conclusory fashion
that he was denied due process of law by juror Smith’s
participation on the jury.
Judge Lawrence Pierce did not reach the claim based on
the alleged immunized testimony. Judge Pierce concluded
that the record supported fully the trial court’s finding
that Smith’s judgment was not influenced by his applica-
tion and that Smith was therefore not actually biased.
Judge Pierce noted that petitioner had ample opportunity
to adduce evidence of actual bias, and that the trial judge,
who concluded that there was no actual bias, had observed
the demeanor of all the witnesses, including juror Smith,
who testified at the post-verdict hearing (App. B, infra,
25a).
Despite the fully supported conclusion that Smith was
in fact an unbiased juror, Judge Pierce believed it neces-
sary to determine whether Smith was ‘‘impliedly biased.’’
Judge Pierce then found that there was a ‘‘conclusive pre-
sumption’’ of bias (id. at 26a) because ‘‘it is reasonable to
9
ported to the judge during trial, there was a substantial
likelihood that the judge would have excused the juror.
On the other hand, at a post-verdict hearing, it was not
likely that the judge would set aside the verdict because of
the juror’s application (id. at 7a, 10a). Thus, according
to the majority, Phillips was prejudiced by the prosecutor’s
failure to disclose, notwithstanding the fully supported con-
clusion that the juror was actually impartial (id. at 10a).
In dissent, Judge Van Graafeiland agreed that the trial
prosecutor had been wrong in not disclosing the juror’s
application but concluded that this failure had not prej-
udiced Phillips because the juror was found to have been
actually impartial. Judge Van Graafeiland made the point,
undisputed by the majority, that the state post-trial hearing
into the juror’s impartiality was precisely the procedure
required by this Court as well as the Second Circuit (id. at
lla). Given the majority’s assumption that the state hear-
ing record could support the trial judge’s finding of impar-
tiality, it was clear that habeas corpus was granted solely
because of prosecutorial misconduct regardless of prejudice,
of which there was none (id. at 12a). Consequently, since
there was no prejudice, Judge Van Graafeiland believed
that rather than interpreting the Constitution, the majority
was exercising supervisory powers over the administration
of justice in the state courts, thereby usurping the power of
the state judiciary (id. at 12a).
On October 10, 1980, the State sought rehearing and re-
hearing en banc, which the Court of Appeals denied on
December 8, 1980. On December 12, 1980, the Second Cir-
cuit granted a motion for a stay of the mandate provided
10
a petition for certiorari was filed within twenty days. This
Petition will have been filed on December 31, 1980 or Janu-
ary 1, 1981.*
Reasons for Granting the Writ
The decision in this case expands federal habeas corpus
review of state convictions to permit federal courts to exer-
cise supervisory power over the conduct of state prosecu-
tors by nullifying convictions even though the challenged
conduct did not affect the outcome of the trial. Such an
expansion poses a serious threat to federal-state comity
and has so far departed from accepted constitutional prin-
ciples and statutory requirements as to call for review by
this Court. The decision is a gross departure from these
principles because it directly conflicts with no fewer than
three decisions of this Court—Remmer v. United States,
347 U.S. 227 (1954), United States v. Agurs, 427 U.S. 97
(1976) and Donnelly v. DeChristoforo, 416 U.S. 637 (1974) —
and directly contravenes the statutory requirements gov-
erning habeas corpus. 28 U.S.C. 2254.
In the Remmer case (supra) this Court recognized that
a post-verdict hearing on a juror’s bias is the appropriate
remedy when a juror has allegedly been influenced or en-
* Phillips has remained in custody throughout the federal pro-
ceedings. After the district court granted habeas corpus relief, he
unsuccessfully sought bail from state court, as well as the district
court, the Circuit Court of — and Mr. Justice Marshall. After
the Circuit Court affirmed the judgment granting habeas corpus, a
state Supreme Court justice granted bail. However, the Appellate
Division of the New York State Supreme Court prohibited petitioner's
release because the grant of habeas corpus did not become effective un-
til issuance of the mandate ; thus, there were still valid state convictions
for murder and state law prohibited bail for persons so convicted.
Subsequently, the Second Circuit denied motions for bail or immedi-
ate issuance of the mandate and then stayed the mandate pending an
application for certiorari.
11
gaged in misconduct during trial. In that case the Court
ordered a post-trial hearing into the impartiality of a juror
after the prosecutor informed the trial judge, but the judge
failed to inform the defense, about a purported attempt to
influence the juror and a follow-up FBI investigation which
included an interview of the juror. Indeed, there is an
entire body of federal law recognizing the appropriateness
of post-verdict inquiry in cases involving juror miscon-
duct during trial. See, e.g., United States v. Johns, 615 F.2d
672, 676 (5th Cir. 1980); United States v. Gross, 614 F.2d
365, 368 (3d Cir. 1980), cert denied, U.S. , 100 S.Ct.
3019 (1980); Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir.
1980). In the instant case the state court held the post-trial
hearing required by Remmer and concluded beyond a rea-
sonable doubt that the juror was impartial.
True, in Remmer, the failure to hold a hearing at trial
on whether the juror had been influenced resulted from a
judicial error, and in the other cases the failure occurred
because of a juror’s conduct which was not discovered until
after trial. Here the failure to hold a hearing resulted
from a prosecutor’s serious error in judgment. Nonethe-
less, if a post-trial hearing is the constitutional remedy
for the failure to hold a mid-trial hearing because of an
error by a judge or juror, there is no reason why a post-
trial hearing should not be the appropriate constitutional
remedy when the fault for not having a hearing at trial lies
with the prosecutor. To overcome this inescapable conclu-
sion, the court below not only ignored Remmer, but also
misapplied United States v. Agurs, supra, which requires a
showing of prejudice before prosecutorial misconduct man-
dates a new trial.
The Agurs case defined the duty of a prosecutor to dis-
close evidence that would likely affect the jury. A defend-
12
ant has a constitutional right to have exculpatory evidence
considered by a jury and thus by definition, the duty to dis-
close material evidence defined the remedy for its breach.
Once the jury had been discharged, only a new trial, before
a new jury, could cure the prejudice of a verdict which
might have been obtained as the result of the prosecutor’s
failure to disclose material evidence.
The court below used Agurs to define the constitutional
duty to disclose information which would have had a ‘‘fair
likelihood’? of affecting a judge’s determination concerning
a juror’s impartiality (App. A, infra, at 10a). Having
so used Agurs, the court below found it simple to conclude,
as in Agurs, that here only a new trial could remedy the
prejudice, if any, suffered as the result of the prosecutor’s
breach of duty. This simple conclusion was erroneous.
Factual questions involving guilt or innocence require
resolution by a jury after a new trial. On the other hand,
determinations by a judge, such as a finding respecting a
juror’s impartiality, can be made at a post-trial hearing
without an entire new trial. Thus, a defendant suffers no
prejudice if the only result of a prosecutor’s failure to
disclose is that the hearing regarding possible juror bias is
postponed until after trial. As noted by the dissent below,
this is the principle enunciated by the Remmer line of cases,
a principle unfortunately ignored by the majority.
The Remmer line of cases stands for the additional prin-
ciple that only when there is a finding that a juror was not
impartial is a new trial required. Here, the state judge
concluded beyond a reasonable doubt that the juror in
question was impartial, a conclusion which the district
court found fully supported by the record and which the
court below never disputed.
13
Given the finding of impartiality, the prosecutor’s fail-
ure to disclose did not prejudice Phillips; because the juror
was impartial, Phillips has been convicted by twelve
impartial jurors. The Constitution requires no more. As
Judge Van Graafeiland in the dissent below correctly con-
cluded, in the absence of a biased juror, whose participation
would have rendered the trial unfair, the Constitution does
not require a new trial even if the prosecutor acted repre-
hensibly in failing to disclose the application (App. A, infra,
12a). This is so because, as this Court has made clear and
the majority below ignored, the governing constitutional
principle in cases involving failure to disclose exculpatory
evidence ‘‘is not punishment of society for misdeeds of
a prosecutor but avoidance of any unfair trial to the
accused.’’ Brady v. Maryland, 373 U.S. 83, 87 (1963);
accord, United States v. Agurs, 427 U.S. at 110, supra.
The majority opinion sought to finesse the Agurs-Brady
requirement of prejudice by concluding that there was a
‘‘fair likelihood’’ that if informed of the juror’s applica-
tion during trial, the state judge would have exercised his
discretion and replaced the juror (App. A, infra, 10a).
Nevertheless, juror Smith was impartial and no prejudice
could arise from denying the judge an opportunity to re-
place one impartial juror with another. Perhaps even more
significant, and unmentioned by the majority, is that New
York judges have no greater discretion to remove a juror
during trial than do their federal counterparts.” Yet, a
* Compare N.Y. Crim. Proc. Law §270.35 and People v. Genovese,
10 N.Y.2d 478, 482-3; 180 N.E.2d 419, 422, 225 N.Y.S.2d 26, 29-30
(1962) and People v. West, 38 A.D.2d 548, 549; 327 N.Y.S.2d 493,
495, aff'd, 32 N.Y.2d 944, 300 N.E.2d 734, 347 N.Y.S.2d 203 (1973),
with United States v. Avila-Macias, 577 F.2d 1384, 1387 (9%h Cire.
1978) and United States v. Moten, 564 F.2d 620, 629 (2d Cir.), cert.
denied, 434 U.S. 959 (1977) and Banks v. United States, 204 F.2d
666, 671 (8th Cir.), cert. denied, 346 U.S. 857 (1953).
14
post-trial hearing into juror misconduct is adequate to
protect an accused’s right to an impartial jury verdict in
federal court. See cases cited at p. 10-11, supra.* Surely,
the majority deviated from applicable principles by its
failure to treat the state post-trial hearing the same way.
Cf. Francis v. Henderson, 425 U.S. 536, 541-42 (1976).
At the core of the majority’s departure from accepted
principles is its incorrect insistence that the crucial and
only issue in this case was prosecutorial misconduct, not
juror bias. From this false premise the majority seems to
have concluded that even if the juror were actually impar-
tial, the prosecutor’s failure to disclose the job application
by itself deprived the accused of due process (App. A, infra,
10a). This conclusion is difficult to understand. As shown
above, the juror was in fact unbiased; thus, the conviction
has not been obtained by the failure to disclose. Put simply,
here there can be no constitutional violation without
prejudice. The applicable statute authorizes the granting
of habeas corpus only to persons in custody in violation
* Of course, inquiry into a juror’s state of mind is a difficult mat-
ter, but that difficulty is present regardless whether the inquiry takes
place before, during or after trial. There are many reasons why the
post-trial hearing required by the Remmer case is as adequate as, if
not more so than, a hearing during trial. In both hearings, the judge
can observe the juror’s reactions during trial as well as his or her de-
meanor during the hearing. Further, in both situations, the juror
could be brought to the court without being told why, thereby pre-
venting preparation for the particular inquiry. With respect to the
post-trial hearing there are at least two other advantages. First,
defense counsel, in cross-examining the juror, would not have to tread
lightly in fear that, if his chailenge were unsuccessful, then he would
be stuck with a juror who might well hold the cross-examination
against his client. Second, at trial there would be pressure to have
an abbreviated hearing to get on with the trial. Post-trial, there is
no such concern. Indeed, here counsel was given wide latitude to
explore as he saw fit.
15
of the Constitution. 28 U.S.C. 2254. Accordingly, Phillips
was not entitled to habeas corpus relief.
Of course, a court having supervisory powers over the
conduct of a prosecutor may desire to encourage future
disclosure by punishing the prosecutor and ordering a new
trial even though an accused would not otherwise have been
entitled to one. Given the departure of the court below
from accepted principles, the ineluctable conclusion is that
this prophylactic device remains the only basis for the
majority opinion. Indeed, Phillips expressly requested
in his brief to the court below that it exercise such super-
visory power (Brief for Appellee: 31). In accepting this
invitation, the majority below, however, has brought itself
into direct conflict with the applicable statute (28 U.S.C.
2254). Under that statute, habeas corpus review of a state
court conviction based on prosecutorial misconduct is a
‘‘narrow one of due process, and not the broad exercise of
supervisory power that [we] would possess in regard to
four] own trial court.’’ Donnelly vy. DeChristoforo, 416
U.S. 637, 642, (1974).
In exercising this supervisory power despite recognizing
that there was here no actual prejudice as required by the
governing constitutional principles, the majority sought
final refuge in a reference to the ‘‘appearance of justice”’
(App. A, infra 10a). But as Justice Holmes knew, ‘‘if a
man begins to talk about [justice] for one reason or another
he is shirking thinking in legal terms.’’ Tae Minp anv
Farru or Justice Houmes, p. 435 (Lerner ed. 1943). The
majority below, in talking in this way, surely did shirk
thinking in legal terms and reached a decision by exercising
supervisory powers in conflict with the governing statute
16
and with accepted legal principles established by the Agurs,
Brady, DeChristoforo and Reinmer cases.
We recognize that certiorari is rarely granted and the
record here shows that the trial prosecutor was clearly
wrong. But that wrongful conduct did not prejudice Phil-
lips and it makes poor sense and worse law to punish the
people of New York State by requiring a new trial twelve
years after the crime (with all of the attendant problems)
for a corrupt police officer who was convicted of two mur-
ders on overwhelming proof of guilt by twelve jurors, not
one of whom has been found to be anything but impartial.
By seeking certiorari, we seek no vindication for the trial
prosecutor. Rather, we seek vindication of the accepted
legal principles from which the court below so clearly
departed, thereby unjustifiably interfering in a most signi-
ficant state criminal prosecution.
Conclusion
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Rosert M. Morcentuav
District Attorney
New York County
Attorney for Petitioner
Rosert M. Pitter
Davin H. Sterner
Assistant District Attorneys
Of Counsel
December 31, 1980
APPENDICES
APPENDIX A
Opinion of the United States Court of Appeals
UNITED STATES COURT OF APPEALS
For tHe Seconp Circuit
No. 1303—September Term, 1979
(Argued June 16, 1980 Decided September 26, 1980)
Docket No. 80-2099
a <> io
Wituuam R. Pxuuips,
Petitioner-Appellee,
against
Harotp J. Smiru, Superintendent,
Attica Correctional Facility,
Respondent-A ppellant.
Before: |
Oakes, Van Graaremann, Circuit Judges,
and Nickerson, District Judge*
Appeal from a judgment of the United States District
Court for the Southern District of New York, Lawrence
* United States District Judge for the Eastern District of New
York, sitting by designation.
2a
W. Pierce, Judge, granting petition for writ of habeas
corpus, 485 F. Supp. 1365.
Affirmed.
Rosert M. Morcentuav, District Attorney, New York
County (Robert M. Pitler, Jerrold Tannenbaum,
Assistant District Attorneys, of counsel) New
York, New York, for respondent-appellant
Wii M. Kunstier, Esq., New York, New York, for
petitioner-appellee
Nickerson, District Judge:
This is an appeal from a judgment entered on the order
of the District Court, Lawrence W. Pierce, Judge, granting
petitioner William R. Phillips a writ of habeas corpus
unless he is retried.
Phillips, a former New York City police officer, was
indicted by a New York County grand jury on March
29, 1972 for the 1968 murders of a pimp and a prostitute
and for the attempted murder of a customer of the bordello
where the crimes occurred. In August 1972 Phillips’ first
trial ended in a hung jury, deadlocked, he claims, ten to two
for acquittal. On November 21, 1974, after a second trial
of some seven weeks, he was convicted on all three counts.
The convictions were affirmed without opinion, People v.
Phillips, 52 App. Div.2d 758, 384 N.Y.S.2d 715 (1st Dept.
1976), and leave to appeal was denied. 29 N.Y.2d 949, 386
N.Y.8.2d 1039 (1976).
In April 1979 he commenced this habeas corpus proceed-
ing, pursuant to 28 U.S.C, § 2254, asserting, among other
things, that he had been denied due process because during
the second trial one of the jurors, John Dana Smith, applied
3a
to the New York District Attorney’s Office for a job as an
investigator, a fact which the prosecutors knew but did not
reveal to the trial judge or to Phillips’ counsel. Judge
Pierce conditionally granted the writ. 485 F. Supp. 1365.
Phillips’ second trial commenced before New York State
Supreme Court Justice Harold Birns on September 16,
1974. After ten days of voir dire, twelve jurors and four
alternate jurors were selected. Although Smith indicated
on voir dire an interest in pursuing a career in law enforce-
ment, particularly with the federal government, he was not
challenged by the defense and was chosen as juror number
three.
On September 23, 1974, the day he was sworn as a juror,
Smith had lunch with Criminal Court Officer Rudolph
Fontane, who had attended John Jay College of Criminal
Justice with Smith’s wife. Fontane said that he was think-
ing of applying for a job as a rackets investigator in the
District Attorney’s Office and told Smith that a federally
funded position for a major felony investigator had opened
in that office. Smith said he was interested in the latter
position.
Fontane made inquiries on behalf of Smith and himself
as to the procedure for applying for a job as an investi-
gator. He spoke first to Michael Mulderrig, an investigator
in the District Attorney’s Office, who said that an applica-
tion and resume should be sent directly to the District
Attorney. Fontane learned the same thing from Mario
Piazza, a jury warden for the New York Supreme Court,
who had spoken about the matter to John Lang, an Assist-
ant District Attorney. Fontane reported what he had
learned to Smith, and on October 22, 1974, after some three
weeks of testimony, Smith wrote a letter to the New York
4a
County District Attorney's Office stating, ‘‘I understand
that a federally funded investigative unit is being formed
in your office to investigate major felonies. 1 wish to apply
for a position as an investigator.”’
Smith gave his application to Fontane, assuming that
Fontane would deliver it to a personal acquaintance in the
District Attorney's Office. Instead, Fontane simply placed
it in the mail, although he personally delivered his own
application for the job of rackets investigator. Several
days after the applications were submitted, Fontane met
Smith and Piazza for lunch. Later that day or the next
day, Piazza called Fontane and told him that Assistant
District Attorney Joan Sudolnik was responsible for re-
viewing applications for employment in the Major Felony
Program.
Smith’s application was forwarded to the Administra-
tive Assistant District Attorney, who, on his return from
vacation on November 9, 1974, sent it to Sudolnik. Sudol-
nik referred the application to Lang. On November 13,
1974, Fontane met Assistant District Attorney Robert
Holmes, spoke of Smith’s application and mentioned, for
the first time to a member of the District Attorney’s staff,
the fact that Smith was on the Phillips jury. Holmes
promptly told this to Sudolnik, who instructed both her
secretary and Lang that no one should correspond with
Smith until after the trial. The next day, November 14,
1974, Sudolnik met with Jack Litman, the Assistant District
Attorney prosecuting Phillips, and his assistant, Phillip
LaPenta, and informed them of the situation.
Litman testified that he directed Sudolnik to make no
response to the application and said that he did not wish
to know about anything contained in Smith’s resume. Lit-
6a
Defense counsel moved to vacate the jury verdict.
Justice Birns denied the motion after an extensive post-
trial hearing. People v. Phillips, 87 Mise.2d 613, 384 N.Y.S.
2d 906 (1975).
Justice Birns concluded that there was ‘‘no evidence’’
that any member of the District Attorney’s staff had a
sinister or dishonest motive with respect to Smith’s appli-
cation, 87 Mise.2d at 619, 384 N.Y.S.2d at 910, and that
sending the application, though ‘‘an indiscretion’’, 87
Misc.2d at 627, 384 N.Y.S.2d at 915, and ‘‘unprecedented
imprudence’’, 87 Mise.2d at 631, 384 N.Y.S.2d at 918, did
not constitute improper conduct by a juror under New
York State law. In light of the voir dire revealing Smith’s
ambitions for a law enforcement career, Justice Birns found
that the application ‘‘in no way reflected a premature con-
clusion as to defendant’s guilt, or prejudice against the
defendant, or an inability to consider the guilt or innocence
of the defendant solely on the evidence.’’ 87 Mise.2d at 627,
384 N.Y.S.2d at 915.
Justice Birns also found that, although the prosecution
should have informed the court and defense counsel of the
application and although their failure to do so was ‘‘a
serious error in judgment,’’ 87 Mise.2d at 628, 384 N.Y.S.2d
at 916, indeed, ‘‘unique misjudgment’’, 87 Mise.2d at 631,
384 N.Y.S.2d 918, as to the requirements of professional
ethics, this failure was not such prosecutorial misconduct
as to deprive Phillips of a fair trial or to prejudice his sub-
stantial rights.
In granting the writ, Judge Pierce held that, while there
was insufficient evidence to support a finding that Smith
was actually partial, he was impliedly biased because the
‘taverage’’ juror in his position ‘‘ would indeed be likely to
favor the prosecution’s position—at least to some extent,’’
485 F. Supp. at 1372, and that Phillips was therefore held
7a
in violation of the Sixth Amendment as incorporated in the
due process clause of the Fourteenth Amendment. Duncan
v. Louisiana, 391 U.S. 145 (1968).
Judge Pierce cited, among other authorities, Tumey v.
Ohio, 273 U.S. 510, 532 (1927), in which the Supreme Court,
deciding that due process requires disqualification of a
judge with a pecuniary interest in finding against a defend-
ant, stated ‘‘[e]very procedure which would offer a possible
temptation to the average man .. . to forget the burden of
proof required to convict the defendant, or which might
lead him not to hold the balance nice, clear and true between
the State and the accused, denies the latter due process of
law.’’
Given the human propensity, often subconscious, for
self-justification, as well as the ‘‘psychological impact’’ of
requiring an individual to state before others whether he
was fair and impartial, Jrvin v. Dowd, 366 U.S. 717, 728
(1961), it is at best difficult and perhaps impossible to learn
from a juror’s own testimony after the verdict whether he
was in fact ‘‘impartial.’’ Indeed, following a seven week
trial any determination of something as amorphous as the
feelings of a juror who has applied to the prosecutor for a
job may be suspect. For these reasons, perhaps the law
should apply the objective, prophylactic rule adopted by
Judge Pierce. But we need not decide the point, for we are
persuaded that, as contended by Phillips below and in the
state courts, the failure of the prosecutors to disclose their
knowledge denied him due process.
The requirements of disclosure which the due process
clause imposes on a prosecutor have been dealt with in
an analogous context in the line of cases commencing with
Brady v. Maryland, 373 U.S. 83 (1963). The Brady case
held that suppression by the prosecution of evidence re-
8a
quested by the accused violated due process where the
evidence was material to guilt or punishment, irrespective
of the good or bad faith of the prosecution. The Court
stated: ‘‘The principle .. . is not punishment of society for
misdeeds of a prosecutor but avoidance of an unfair trial
to the accused. Society wins not only when the guilty are
convicted but when criminal trials are fair; our system of
the administration of justice suffers when any accused is
treated unfairly.’’ 373 U.S. at 87.
Subsequently, the opinion in United States v. Agurs,
427 U.S. 97 (1976), reemphasized this commitment to
‘*fairness’’ for the accused. The Court pointed out that
the Brady rule arguably applies in three distinct situations.
The first involves the knowing use of perjured testimony
by the prosecution. A conviction so obtained is ‘‘funda-
mentally unfair’’, and must be set aside if there is ‘‘any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.’’ 427 U.S. at 103. See
also Giglio v. United States, 405 U.S. 150 (1972); Napue v.
Illinois, 360 U.S. 264 (1959). The opinion in the Agurs
case stated that this standard of materiality is applied ‘‘not
just because prosecutorial misconduct’’ is involved, but
more importantly because of the ‘‘corruption of the truth-
seeking function of the trial process.’’ 427 U.S. at 104.
The second situation, illustrated by the Brady case, is
where the defense requests specific evidence. In those cir-
cumstances ‘‘if the subject matter of such a request is
material, or indeed if a substantial basis for claiming
materiality exists, it is reasonable to require the prosecutor
to respond either by furnishing the information or by sub-
mitting the problem to the trial judge,’’ and ‘‘the failure
to make any response is seldom, if ever, excusable.’’ 427
U.S. at 106. |
9a
The third situation is where, as in the Agurs case, there
has been no specific request, in which event the prosecution
has a duty to provide the defense with exculpatory evidence
only if it ‘‘creates a reasonable doubt that did not other-
wise exist.’’ 427 U.S. at 112. Agurs had been convicted
for murder of one Sewell who, just before the killing, had
been carrying two knives, including the one with which
Agurs killed him. Agurs’ counsel moved for a new trial,
asserting he had discovered that Sewell had a prior record,
including two guilty pleas to carrying deadly weapons,
apparently knives. The prosecutor had not been requested
to disclose and had not disclosed this record to the defense.
The Supreme Court held that there was no denial of
due process, approving the trial court’s finding that this
evidence did not create a reasonable doubt that did not
otherwise exist. The evidence did not contradict the prose-
cution’s case and was largely cumulative.
For purposes of the present case what is significant in
the Agurs opinion is its indication that had Sewell’s prior
record been requested and withheld Agurs would have been
denied due process. Thus the standard of due process is
not whether the defendant in the court’s opinion was in
fact guilty. The test is whether the defendant has received
‘*fair’’ treatment. By deciding that a request for specific
evidence must be honored the court held that to sanction
the withholding by the prosecutor of specified evidence as
to which there is a substantial basis for claiming materiality
would not only be unfair to the defendant but would also
impugn the integrity of the judicial process itself.
We think similar considerations are applicable in this
case. Here the defense had no reason to believe a juror
had applied to the prosecutor for a job and therefore no
reason to request such information. But an impartial jury
10a
is basic to a fair trial. Irvin v. Dowd, 366 U.S. 717, 722
(1961). To condone the withholding by the prosecutor of
information casting substantial doubt as to the impartiality
of a juror, such as the fact that he has applied to the prose-
cutor for employment, would not be fair to a defendant and
would ill serve to maintain public confidence in the integrity
of the judicial process. As in Rose v. Mitchell, 443 U.S. 545,
555-56 (1979), in which the convicted defendant alleged
racial discrimination in the selection of the foreman of the
grand jury, the ‘‘harm is not only to the aeeused’’ but ‘‘to
society as a whole’’ when the ‘‘appearance of justice’’ is
destroyed.
We may assume for purposes of argument that the trial
judge might find after a hearing that the juror was of so
staunch a character and of such extraordinary sensitivity
and righteousness that his judgment would not be affected,
even subconsciously, by his interest in his future employ-
ment. But it is not the prosecutor’s function to predict
what the court may find. His duty must be defined in
objective terms. Where the facts indicate that an average
juror might be prejudiced and there thus is a fair likelihood
that the trial judge will exercise his discretion to substitute
an alternate or declare a mistrial, the prosecution must
divulge the facts upon which the exercise of that discretion
depends.
No doubt there will be cases in which the prosecution
receives innocuous information regarding a juror. While
the prudent prosecutor will no doubt err on the side of
disclosure, we do not suggest that a new trial will be re-
quired in every case. We merely hold that the prosecutor
may not keep silent when he knows that a juror has applied
to become his employee.
The judgment is affirmed.
lla
Van GraareiLann, Circuit Judge, (dissenting) :
In affirming the judgment herein, my colleagues have
done exactly what the Supreme Court has said should not
be done. They have measured the constitutional obligation
of due process ‘‘by the moral culpability, or the willfulness,
of the prosecutor.’’ United States v. Agurs, 427 U.S. 97,
110 (1976). They hold that the failure of the prosecutor
to disclose his knowledge of a juror’s job application denied
petitioner due process regardless of whether the judgment
of the juror in question was in fact affected by his interest
in future employment so as to deprive petitioner of a fair
trial. I cannot subscribe to this unwarranted expansion of
the habeas corpus powers of the federal courts.
In Remmer v. United States, 347 U.S. 227 (1954), an
FBI agent was sent into the jury room without the defend-
ant’s knowledge or consent to investigate a rumor con-
cerning jury tampering. The Court recognized that send-
ing an agent in to investigate a juror as to his conduct ‘‘is
bound to impress the juror and is very apt to do so unduly.”’
Id. at 229. It ordered that the trial judge be directed to hold
a hearing so as to determine whether the incident was pre-
judicial and harmful to the defendant and if ‘‘it [was]
found to have been harmful, to grant a new trial.’’ 7d. at
230. Since Remmer, this has been the generally approved
procedure where there are reasonable grounds to suspect
jury improprieties. See, e.g., United States v. Johns, 615
F.2d 672, 676 (5th Cir. 1980); United States +. Gross, 614
F.2d 365, 368 (3d Cir. 1980); Sullivan v. Fogg, 613 F.2d
465, 467 (2d Cir. 1980). It was the procedure followed by
the state court judge in this case.
The state judge held a hearing during which the chal-
lenged juror was examined. Following the hearing, the
12a
judge found that the juror was not prejudiced or hostile
and had made no premature determination of the defend-
ant’s guilt; that instead the juror was honest and able to
render a verdict on the evidence. The judge concluded
that petitioner had not been deprived of a fair trial. The
district court likewise found that the record did not support
petitioner’s claim that the letter-writing juror was partial
to the prosecutor’s case.
My colleagues say this makes no difference and approve
the granting of a writ solely because they find the state
prosecutor’s conduct to have been reprehensible. However,
reprehensible conduct by a state prosecutor which has not
deprived the defendant of a fair trial does not warrant
federal habeas corpus relief. Fambo v. Smith, 565 F.2d
233, 235 (2d Cir. 1977). Our right to review state court
proceedings is ‘‘the narrow one of due process, and not the
broad exercise of supervisory power that [we] would pos-
sess in regard to [our] own trial court.’’ Donnelly v. De-
Christoforo, 416 U.S. 637, 642 (1974), quoting DeChristo-
foro v. Donnelly, 473 F.2d 1236, 1238 (1973).
New York State Supreme Court judges are obligated
and fully qualified to supervise the trial conduct of state
prosecutors. Unless a prosecutor’s conduct has so preju-
diced a defendant as to deprive him of a fair trial, section
2254 gives a federal judge no right to usurp the state
judge’s function. Borodine v. Douzanis, 592 F.2d 1202,
1209-12 (1st Cir. 1979). The purpose of habeas corpus ‘‘is
not punishment of society for misdeeds of a prosecutor but
avoidance of an unfair trial to the accused.’’ Brady v. Mary-
land, 373 U.S. 83, 87 (1963).
I dissent.
13a
APPENDIX B
Opinion and Order of the District Court
UNITED STATES DISTRICT COURT
SoutHerN District or New York
No. 79 Civ. 1782.
> OO”
WituiaMm R. PHuurps,
Petitioner,
v.
Harotp J. Smiru, Superintendent,
Attica Correctional Facility,
Respondent.
————————-—-—t > bre
March 13, 1980.
William M. Kunstler, New York City, for petitioner.
Robert M. Morgenthau, Dist. Atty. for New York
County, by Jerrold Tannenbaum, Robert M. Pitler, Asst.
Dist. Attys., New York City, for respondent.
Pierce, District Judge.
OPINION AND ORDER
This petition for a writ of habeas corpus presents this
Court with the serious question of whether a defendan'
charged with capital crimes in state court can receive a
fair trial where one of the members of the jury, during the
l4a
course of the trial, sought some benefit from the prosecu-
tor’s office and where this fact became known to the prose-
cutor during the trial but was not communicated to de-
fendant’s counsel or to the court until after a verdict of
guilty had been returned.
Petitioner William R. Phillips was convicted after a
trial before a jury in State Supreme Court, New York
County, on November 21, 1974, on two counts of murder and
one count of attempted murder. He is presently serving
concurrent sentences on those charges of up to a life term
of imprisonment. He has petitioned for a writ of habeas
corpus pursuant to sections 2241 and 2254 of Title 28,
United States Code. In support thereof, he contends, first,
that he was denied his constitutional right to a trial by an
impartial jury and, therefore, to due process of law in that
a member of the jury had applied for employment with
the prosecutor’s office during the course of the trial, which
application, to the knowledge of the prosecutor, was still
pending at the time the jury rendered its verdict against
him. He further asserts that a second juror, while serving
on the jury in this case, had agreed to testify on behalf of
the prosecution in another, unrelated criminal action in
exchange for immunity from prosecution for himself, pe-
titioner not having been informed of this fact until the end
of the prosecution’s case against petitioner. Finally,
petitioner contends that a tape recording of a conversation
in which he was a participant should not have been admitted
into evidence at his trial because he had previously been
granted transactional immunity with respect to that con-
versation.
In the discussion that follows, petitioner’s second and
third contentions will not be addressed since this Court
15a
finds, with respect to his first contention, that the funda-
mental constitutional requirements of a trial before an
impartial jury and of due process of law were denied to
petitioner based upon the undisputed fact that a juror filed
an application for a job in the prosecutor’s office after being
selected to serve on the trial jury in this case, which appli-
cation was still pending at the time the jury rendered its
verdict. The Court notes that the prosecuting attorneys
became aware of this information during the trial but
did not reveal it to either the defendant or the trial court
until after a verdict was rendered. The Court notes further
that this issue might well have been avoided if the prose-
cuting attorneys had timely informed the trial judge of
this matter since alternate jurors were available to replace
this juror/job applicant before deliberations began.
Facrts'
On March 29, 1972, petitioner was indicted on charges
of murder and attempted murder. Thereafter, on June 28,
1972, the first trial of petitioner on these charges was com-
menced in State Supreme Court, New York County. How-
ever, on August 9, 1972, the jury informed the court that it
was unable to reach a verdict, and a mistrial was declared.
Petitioner’s second trial before a jury was commenced on
September 16, 1974, before Justice Harold Birns. On
November 21, 1974, the jury returned a verdict convicting
1. During the post-trial hearings before Justice Harold Birns in
state court on petitioner’s motion to vacate the verdict of the jury on
the grounds of jury and prosecutorial misconduct, the testimony of
all of the persons involved in the tucidents set forth in the petition
before this Court was taken. Inasmuch as the parties are in substantial
agreement regarding the events in controversy, a separate hearing
was not held by this Court on the present petition. The events de-
scribed herein have been established from the record of the criminal
roceedings against the petitioner in state court, including post-trial
earings.
16a
petitioner of two counts of murder and one count of at-
tempted murder. Both trials were prosecuted by the New
York County District Attorney’s Office.
During the course of the second jury trial, one of the
jurors, John Dana Smith, was informed by one Rudy
Fontaine of possible employment opportunities in the
Major Felony Program of the New York County District
Attorney’s Office. At that time, Fontaine was a uniformed
court officer of the same state court in which petitioner was
on trial, but was not involved in the ongoing proceedings
against the petitioner. Fontaine knew that Smith had an
interest in law enforcement; he also knew that Smith was
a juror in the Phillips trial. During the jury selection
process Smith had revealed that he was interested in law
enforcement and had applied for a position with the federal
Drug Enforcement Administration.
With Smith’s consent, Fontaine began to inquire about
employment opportunities with the New York County Dis-
trict Attorney’s Office on Smith’s behalf, as well as his
own. He spoke to Michael Mulderrig, an investigator in
the District Attorney’s Office whom he knew, about apply-
ing for a position. Fontaine was told that he should apply
for a position by submitting a letter and a resume to the
District Attorney’s Office by hand or by mail. The record
of this matter, including the post-trial hearings held by
Justice Birns at which the testimony of these persons was
taken, is inconclusive as to whether Fontaine mentioned to
Mulderrig either Smith’s name or the fact that Smith was
a juror in a pending criminal action.
Fontaine also spoke to a jury warden for the New York
State Supreme Court, one Mario Piazza, to inquire if he
knew where an employment application should be sub-
mitted. Piazza in turn spoke to an assistant district attor-
17a
ney, one John Lang, and was told that employment appli-
cations should be sent to the District Attorney’s Office.
Piazza did not know the names of the prospective applicants
at that time and did not, therefore, mention Smith’s name.
However, he later met Smith, while petitioner’s trial was
underway, at a lunch with Fontaine.
On or about October 22, 1974, Smith drafted a letter and
resume pursuant to Fontaine’s instructions? He gave
these to Fontaine in an unstamped envelope for delivery
to the District Attorney’s Office. Smith stated at the post-
trial hearings before Justice Birns that he assumed that
Fontaine had a personal contact in the District Attorney’s
Office and that Fontaine would personally hand-deliver the
envelope to that person when Fontaine submitted his own
application. (Hearing Transcript at pp. 71-72). He further
stated that he did not expect that Fontaine would influence
the evaluation of his application through any of Fontaine’s
contacts within the District Attorney’s Office. He did later,
however, seek the help of a former job supervisor, Wallace
Reilly, infra, whose acquaintance with members of the Dis-
trict Attorney’s Office, Smith hoped, would be beneficial.
(Hearing Transcript at p. 73).
Fontaine thereafter personally delivered his own ap-
plication to the District Attorney’s Office. However, when
he offered the envelope containing Smith’s application, he
was told that it should be addressed and mailed to Richard
2. The letter itself did not indicate that Smith was a member of
the Phillips’ jury. It was addressed to District Attorney Richard
Kuh, and dated October 23, 1974. It stated:
“T understand that a Federal Funded investigation unit is being
formed in your office to investigate major felonies. I wish to
apply for a position as an investigator.
Attached is my resume. Letters of recommendation will be
furnished upon request. Thank you for your consideration.”
18a
Kuh, the District Attorney. Fontaine subsequently stamped
and mailed the envelope as directed.*
Several days later, Fontaine met with Smith and Piazza
for lunch, at which time Piazza informed Fontaine about
Smith’s application having been submitted. That after-
noon or the next day, Piazza called Fontaine and told him
that an Assistant District Attorney by the name of Sudolnik
was responsible for reviewing applications for employment
in the Major Felony Program for which Smith had sub-
mitted an application and that Smith should call her. Fon-
taine apparently relayed this information to Smith. It
appears that, at the time of his last telephone conversation
with Fontaine, Piazza was not aware that Smith was a
juror in an ongoing criminal proceeding in state court.
In late October or early November, 1974, after Smith’s
employment application had been submitted, Assistant Dis-
trict Attorney Holmes was approached by Fontaine and
informed that a person serving as a juror in the Phillips
case had applied for a position with the District Attorney’s
Office. He may also have been asked if he would do some-
thing about the application, to which request, Holmes con-
tended at the post-trial hearings, he initially indicated that
he would check and see if an application had been filed.
However, Holmes further contended, when he realized that
the applicant was a juror, he became alarmed and told
Fontaine that he would not contact Smith and that the
application would not be processed. Fontaine contends that
Holmes stated that he did not think that it was improper
for a juror to apply for a position with the District Attor-
3. The letter with resume was received by the District Attorney’s
Office on or about October 23, 1974 and was routinely referred to
Assistant District Attorney Conboy. It was eventually submitted to
Assistant District Attorney Sudolnik,
20a
fense counsel or the trial court should be informed. The
trial, at that time, had not yet concluded. They reasoned
that since Smith had indicated during the voir dire that he
was interested in a career in law enforcement as an in-
vestigator and had a pending application with the federal
Drug Enforcement Administration, this incident was not
surprising or unexpected. Therefore, they assumed, so
long as they did not contact the juror and did not gain any
knowledge about his background which was unknown to the
defense, they were not obligated to bring this matter to the
attention of the Court or defense counsel.
On November 20, 1974, the jury retired to deliberate.
At that time, three alternates were available and could have
been used as substitute jurors for Smith. (Trial Transcript
at p. 6156). The next day, on November 21, 1974, the jury
rendered its verdict convicting the petitioner. Neither the
court nor defense counsel was yet aware that Smith had
applied for employment with the District Attorney’s Office
or that various contacts had been made with members of
that office by persons interested in promoting Smith’s appli-
cation.
At the time the jury rendered its verdict, Smith’s em-
ployment application was still pending. He had not been
invited to an interview nor had he been informed of the
status of his application. Having been previously informed
by Piazza through Fontaine that he should contact Assist-
ant District Attorney Sudolnik about his application, Smith
attempted to contact her by telephone the day after the
jury’s verdict was rendered. She was not available at the
time he called, however, and did not return his call. He
then called his former supervisor, Wallace Reilly, under
whom he had worked in the past while employed as a guard
at a department store. Reilly apparently knew several of
2la
the assistant district attorneys, and Smith asked him to
inquire on his behalf. Reilly called Sudolnik and told her
that Smith had worked for him and had done a good job.
The fact that Smith had been a juror in the Phillips’ case
was also mentioned. She replied that Smith would be
interviewed as would a number of other applicants and that
the final selection was to be made by the New York City
Bureau of Personnel and not the District Attorney’s Office.
On December 9, 1974, District Attorney Richard Kuh
informed the court that Smith had applied for employment
during the pendency of the trial and that the two assistants
had been approached regarding the application. Peti-
tioner’s defense counsel moved to vacate the verdict of the
jury on the grounds of jury misconduct and prosecutorial
misconduct. Justice Birns then held post-trial hearings at
which the testimony of numerous persons, including Smith,
was taken to establish a record of the events which occurred.
Smith testified that while serving as a juror he did not
consider whether the verdict would affect his application
either favorably or unfavorably and that he did not think
that it was improper to apply for employment when he did
or that it was necessary to inform the court of his applica-
tion.
Upon conclusion of the hearings, Justice Birns held that
petitioner had not been deprived of his right to a trial
before an impartial jury or otherwise prejudiced. Peti-
tioner was then sentenced. On appeal, petitioner’s convic-
tion was affirmed without opinion. People v. Phillips, 52
App. Div.2d 758, 384 N.Y.S.2d 715 (1st Dep’t). Thereafter,
the New York State Court of Appeals denied leave to
appeal. People v. Phillips, 39 N.Y.2d 949, 386 N.Y.S.2d
1039 (1976).
22a
Having exhausted all available state remedies, petitioner
commenced this action for a writ of habeas corpus on April
5, 1979. Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979).
Discussion
The Sixth Amendment to the U. S. Constitution provides
that a defendant in a criminal prosecution has a right to a
trial by an impartial jury. This federal constitutional right
is binding not only upon the federal courts, but also upon
the individual states through the due process clause of the
Fourteenth Amendment. Duncan v. State of Louisiana,
391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
The determinative issue here is petitioner’s claim that
he was denied his constitutional right to a trial before a
panel of impartial jurors. The gravamen of his claim is
the prejudice he contends he suffered as a result of a juror
having applied for employment with the prosecuting attor-
ney’s office during the course of his trial, which application
was still pending during the period of the jury’s delibera-
tions. The problems caused by this event were further
exacerbated by the failure of the prosecuting attorneys to
promptly notify the court and defense counsel of these
circumstances before the conclusion of trial and before the
jury began its deliberations. Indeed, this Sixth Amend-
ment constitutional challenge of the criminal conviction
might have been avoided by prompt notification to the trial
court and defense counsel and timely substitutional of one
of the three available alternate jurors for Juror Smith
before the jury commenced its deliberations.
Test of Jury Bias
The issue of jury bias in a criminal trial involves mixed
questions of law and fact, Reynolds v. United States, 98
23a
U.S. 145, 156, 25 L.Ed. 244 (1878), for which there is no
single determinative test. As stated in United States v.
Wood, 299 U.S. 123, 146, 57 S.Ct. 177, 185, 81 L.Ed. 78
(1936) :
‘‘TImpartiality is not a technical conception. It is a
state of mind. For the ascertainment of this mental
attitude of appropriate indifference, the Constitution
lays down no particular tests and procedure is not
chained to any ancient and artificial formula.’’
In reviewing such claims, the federal courts have dis-
tinguished between those actions which involve claims of
actual jury bias and those involving implied bias. Actual
bias may be said to exist where there is sufficient evidence
of a juror’s prejudiced state of mind. United States v.
Haynes, 398 F.2d 980, 984 (2d Cir. 1968), cert. denied, 393
U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124 (1969). Upon a
showing by a defendant that a claim of actual bias is more
than mere conjecture, the court will review the trial record
for objective evidence of prejudice—or the lack thereof—
such as explicit assertions of partiality or of impartiality
by the suspected juror to determine the validity of such
claim. E. g., Mikus v. United States, 433 F.2d 719 (2d Cir.
1970).
Where there is insufficient evidence of actual juror bias,
the court may nevertheless find that a juror occupies a
status or is a party to a relationship which, as a matter of
law, raises the presumption of partiality. This presumption
is conclusive and may not be defeated by affirmations of
neutrality by the juror. United States v. Haynes, supra,
398 F.2d at 984.
The common law, see Blackstone’s Commentaries on the
Law of England, Bracton on the Laws and Customs of Eng-
land, and United States v. Burr, 25 Fed.Cas.P. 49, 50
24a
(14,692¢) (C.C.Va.1807), provides the foundation for the
formulation of the test for implied jury bias which is pres-
ently followed by the federal courts, the ‘‘average man’’
test. Dennis v. United States, 339 U.S. 162, 176, 70 S.Ct.
519, 527, 94 L.Ed. 734 (1950) (Black, J., dissenting) ; United
States v. Haynes, 398 F.2d at 985. As set forth in T’umey
v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749
(1926) :
‘*(E]very procedure which would offer a possible
temptation to the average man... to forget the burden
of proof required to convict the defendant, or which
might lead him not to hold the balance nice, clear and
true between the state and the accused, denies the latter
due process of law.’’ (Emphasis supplied).
Accordingly, in adjudging a claim of implied jury bias
this Court must determine whether an average man in the
position of the juror in controversy would be prejudiced.
Whereas, in reviewing a claim of actual jury bias, the Court
must determine whether the evidence produced supports the
conclusion that the juror was in fact partial.
Actual Bias
The record of the post-trial hearings in state court indi-
cates that Juror Smith was not a passive, indifferent appli-
cant for employment. Indeed, his active interest in the
position he sought is manifest from his request that Fon-
taine obtain information for him about the position, from
his immediate drafting of a resume and cover letter pursu-
ant to Fontaine’s instructions, from his efforts to contact
Assistant District Attorney Sudolnik about the job after
the trial was concluded, and from the efforts of his former
supervisor, Wallace Reilly, to contact the District Attor-
25a
ney’s Office at Smith’s request. Moreover, since he had
applied for the position of an investigator with the Major
Felony Unit of the prosecutor’s office while sitting as a
juror in a criminal case involving a capital offense, it ap-
pears initially that petitioner’s claim of actual jury bias is
not mere unfounded speculation. However, a further re-
view of the record indicates that there is insufficient evi-
dence to support a finding that Smith was actually partial
to the State’s case because of his desire to obtain employ-
ment. At the post-trial hearings before Justice Birns,
Smith testified, in substance, that he was not influenced by
his pending employment application and that he did not
attempt to influence the other members of the jury.
Although efforts were made by Piazza and Fontaine to con-
tact members of the District Attorney’s Office to urge that
Smith be employed, Smith apparently was unaware of these
solicitations and had not requested that such efforts be
undertaken on his behalf. Further, the personal inquiries
which he made himself and the efforts of Reilly which were
made at his request did not occur until after the jury had
rendered its verdict. Justice Birns who had observed the
demeanor of all of the witnesses, including Smith who testi-
fied at the post-trial hearing concerning this issue, and who
had the opportunity to observe Smith throughout the trial,
concluded that Smith’s judgment was not influenced by
these circumstances.
Therefore, since petitioner has had ample opportunity
to adduce evidence of actual prejudice, the Court finds that
the record of this matter does not support petitioner’s claim
that Juror Smith was actually partial to the prosecution’s
case because he was seeking to obtain employment.
Implied Bias
In determining whether implied jury bias existed, the
Court is mindful that it should not ‘‘create a set of un-
reasonably constricting presumptions that jurors [are im-
pliedly biased because of] certain occupational or special
relationships which might bear directly or indirectly on the
circumstances of a given case....’’ Mikus v. United States,
433 F.2d 719, 724 (2d Cir. 1970). For example, it is clear
that mere current governmental employment of a juror,
unrelated to the circumstances of a criminal prosecution, is
not sufficient to raise a conclusive presumption of jury bias.
United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed.
78 (1936); Frazier v. United States, 335 U.S. 497, 69 S.Ct.
201, 93 L.Ed. 187 (1948). Similarly, a former government
employee is not barred from serving as a juror merely
because of his prior employment. Mikus v. United States,
supra, 433 F.2d at 724.
In determining that current or former government em-
ployees are not disqualified from serving as jurors as a
matter of law, the Courts have reasoned that government
employees have no different interest in a criminal matter
than that of ‘‘any citizen who wishes to see crime properly
punished.’’ United States v. Wood, 299 U.S. at 149, 57
S.Ct. at 187. Nonetheless, it has been implied that excep-
tional circumstances may exist which would warrant a
finding of inherent prejudice based on the employment affili-
ation of a juror. Jd. at 150, 57 S.Ct. at 187; Frazier v.
United States, 335 U.S. at 510, 69 S.Ct. at 208.
The reasoning of the Court in Frazier and Wood is con-
sistent with the average man test set forth in United States
v. Burr, supra, and Tumey v. Ohio, supra. See Dennis v.
United States, 339 U.S. 162, 177, 70 S.Ct. 519, 527, 941 L.Ed.
27a
734 (1950). Under this test, the average person employed
by the government would not be held to be prejudiced
against a defendant in a criminal prosecution, as a matter of
law, because of that employment, absent exceptional cir-
cumstances.
But prospective employment of a juror by the prosecu-
tor’s office as an investigator is not the type of cireumstance
addressed in Frazier or Wood and is not, in the opinion of
this Court, governed by their holdings. In those cases,
the jurors were current government employees whose work
was not related in any significant way to the matter being
tried. Here, Smith was seeking employment in a clearly
definable context which was closely related to the matter
being tried; he sought employment as an investigator with
the Major Felony Unit in the District Attorney’s Office
while sitting as a juror in a homicide case then being prose-
cuted by that very office. Under these circumstances, it is
reasonable to conclude that the average person in Smith’s
position would believe that the verdict of the jury would
directly affect the evaluation of his job application. More-
over, it would not be unreasonable for such a juror to as-
sume that the prosecutor’s office had reviewed his applica-
tion and, in the process of reviewing his background, had
become aware that he was a juror in a significant criminal
trial it was then prosecuting, although his employment
application did not so state. The Court notes that here the
District Attorney’s Office was in fact aware that Smith, a
juror, had applied for employment, although it learned of
this for reasons other than through its investigation of job
applicants. Under these circumstances, reason suggests
that a person would indeed be likely to favor the prosecu-
tion’s position—at least to some extent.
28a
This Court does not find that a conclusive presumption
of partiality in this instance is unreasonably constrictive.
No significant class of prospective jurors is likely to be
affected. Furthermore, extrajudicial communications be-
tween jurors and the office of the prosecuting attorney
should not be countenanced. See Mattox v. United States,
146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892). Nor
has counsel for the respondent contended that a finding of
implied juror bias would constitute an unreasonable limita-
tion.
The established principle of implied jury bias is founded
in English common law and has been adopted by American
courts. As Blackstone noted, a prospective juror should not
serve when it is shown:
‘*that [he] is of kin to either party within the ninth
degree ; that he has been arbitrator on either side; that
he has an interest in the cause; that there is an action
pending between him and the party; that he has taken
money for his verdict; that he has formerly been a
juror in the same cause; that he is the party’s master,
servant, counsellor, steward or attorney, or of the same
society or corporation with him.’’ 3 Colley, Blackstone
Commentaries on the Laws of England 363.
Similarly, Bracton states that if the defendant ‘‘sus-
pects any of the twelve jurors he may remove him for just
cause ... as where there are deadly enmities between some
of them and the indicted man, or there is a greedy desire
to get his land, as was said above; if there is ground for sus-
picion all are to be removed, that the inquiry may proceed
free from all doubts.’’ 2 Thorne, Bracton on the Laws and
Customs of England 405 (1968). Our courts have fre-
quently affirmed this tenet. Chief Justice Marshall stated
29a
in United States v. Burr, 25 Fed.Cas.P. 409, 50 (14,692g)
(C.C.Va. 1807) that:
‘‘The relationship may be remote; the person may
never have seen the party; he may declare that he feels
no prejudice in the case, and yet the law cautiously
incapacitates him from serving on the jury because it
suspects prejudice, because in general persons in a
similar situation would feel prejudice.’’
Accordingly, the Court finds that Juror Smith was not
qualified to sit as a juror because of implied bias and should
have been removed from the panel of jurors. The assistant
district attorneys who prosecuted these serious criminal
charges in state court must share the responsibility for this
inexcusable abridgement of the petitioner’s Sixth Amend-
ment right. They were aware of this problem long before
the jury retired to deliberate and failed to bring this matter
to the attention of the trial court or defense counsel. Since
three alternate jurors were available at the time, this con-
troversy could likely have been avoided by the substitution
of another juror for Smith.
For these reasons, the petition for a writ of habeas cor-
pus is hereby conditionally granted unless retrial of the
petitioner commences within ninety days of the entry of
this order.
So OrpereD.
30a
APPENDIX C
Judgment of the District Court
UNITED STATES DISTRICT COURT
Soutuern District or New York
79 Civil 1782 (LWP)
_— > se
WiuiM R. PxHuuies,
Petitioner,
against
Harotp J. Smirn, Superintendent,
Attica Correctional Facility,
Respondent.
May 7, 1980
The above named petitioner having filed a petition for
a Writ of Habeas Corpus, pursuant to Title 28 U.S.C.
Sees. 2241 & 2254 and said petition having been submitted
to the Honorable Lawrence Pierce, United States District
Judge, and the Court thereafter on March 14, 1980, having
handed down its decision conditionally granting the said
petition, it is,
Orperep, ApyupcEep anv Decreep: That the petition be
and it is hereby conditionally granted unless retrial of the
3la
petitioner comences within ninety days of the entry of the
Court’s order.
Dated: New York, N.Y.
May 7, 1980
Raymonp F. Burearpt,
Clerk
A True Copy
Raymonp F. Burecnarpt, Clerk
Tuomas W. Acreer,
Deputy Clerk
32a
APPENDIX D
Order of the District Court Staying the Judgment
UNITED STATES DISTRICT COURT
Soutnuern District or New York
79 Civ. 1782
—=— > Se
WituMm R. PHinuies,
Petitioner,
v.
Harotp J. Smiru, Superintendent,
Attica Correctional Facility,
Respondent.
So Oo
Respondent seeks an order staying this Court’s condi-
tional grant of a writ of habeas corpus. See Opinion and
Order dated March 13, 1980. It appearing that respond-
ent’s appeal from the Opinion and Order of this Court
dated March 13, 1980 is scheduled to be heard by the United
States Court of Appeal for the Second Circuit on June 16,
1980, eleven days from the date of this Order, it is hereby
ordered that the Opinion and Order dated March 13, 1980
is modified to provide that petitioner’s application for a
writ of habeas corpus pursuant to 28 U.S.C. §2254 is hereby
conditionally granted unless retrial of the petitioner com-
mences within sixty days of the date of the determination
of respondent’s appeal.
So OrpERED.
Dated: New York, New York
March 5, 1980 (date misstated).
Lawrence W. Pierce,
U.S. D. J.
34a
cutorial misconduct as to warrant the relief sought. Thus,
this court is not now confronted with a challenge to the
sufficiency of the evidence against the defendant. It is
concerned, however, with a tangential attack designed to
upset the jury’s verdict.
For the reasons stated below, the motion, in all respects,
is denied. The alleged misconduct does not meet the re-
quirements of the CPL.
Prior to the court’s charge on November 20 and follow-
ing summations the previous day, upon information first
disclosed by the prosecutors on November 18, a hearing was
held, in camera, concerning Juror No. 6, Mr. Lawrence
Bethel. On October 4, the trial prosecutors, Messrs. Jack
Litman and Philip La Penta, had obtained unverified in-
formation that Mr. Bethel had been arrested on a narcotics
charge, a misdemeanor. It was not immediately known,
but subsequent inquiry established, that he had been ar-
rested on February 1, 1974, arraigned in the Criminal Court
on February 2, and that he had then undertaken to co-
operate with the office of the Special Narcotics Prosecutor
in seeking the conviction of the alleged seller of the said
narcotics. The charge against Mr. Bethel had been ACD’d,
i.e., adjourned in contemplation of dismissal because of
his promise of cooperation (see CPL 170.55).
Mr. Litman explained that the information concerning
Mr. Bethel had not been disclosed earlier because the infor-
mation had not only to be verified but it was also necessary
to obtain the stenographic record of Mr. Bethel’s interroga-
tion on the voir dire prior to the trial to determine whether
the questions put to him then in any way related to this
newly acquired information, and that there was consider-
able delay in obtaining such stenographic minutes,
35a
At the hearing, Mr. Allen Alpert, an assistant to the
Special Narcotics Prosecutor, testified that he was an ob-
server at the Phillips’ trial on October 4, and that he be-
lieved he recognized juror Bethel as a person in whom his
office had an interest. Shortly thereafter, he gave the in-
formation concerning Mr. Bethel to Mr. Litman.
Mr. Bethel, summoned from the juryroom (and there-
after not permitted to return), testified that he had not
disclosed his arrest upon voir dire because he believed the
charges against him were no longer pending and were of
no consequence. In fact, it appeared that no question put
to Mr. Bethel at that time required him to provide any
information concerning his arrest or its surrounding cir-
cumstances (People v. Rosen, 251 App. Div. 584). Mr.
Bethel also testified that at no time did he disclose to any of
his fellow jurors the fact of his arrest or his promise to
cooperate with the authorities.
A defense motion for a mistrial was denied, and there-
upon Mr. Litman, the defense counsel Mr. Rothblatt, and
the defendant in person expressly consented to the dis-
charge of Mr. Bethel, although defense counsel reserved
the right to make further inquiry into the matter, stating
he intended to call the police officer, Douglas Brussel, who
had arrested Mr. Bethel, to explore the promise of co-
operation by Mr. Bethel and whether such cooperation in
any way ‘‘tainted’’ the jury. Mr. Bethel’s place in the jury
box was taken by Mr. Robert F. Thompson, the alternate,
whose name ‘‘was first drawn and called’’ (CPL 270.35,
subd. 1).
Following the declaration of the jury’s verdict, defense
counsel specifically requested a further hearing concerning
Mr. Bethel. December 9 was set for that purpose. Police
Officer Brussel and Mr. Bethel were to appear on that date.
36a
In fact, Mr. Brussel on that occasion testified that he
learned in June or July from Assistant District Attorney
Alpert that Mr. Bethel would cooperate against the alleged
seller, but he never saw Mr. Bethel after the arraignment
in Criminal Court or spoke to him since that time.
This court is satisfied beyond a reasonable doubt (Chap-
man v. California, 386 U.S. 18, diseussed infra, p. 632) that
at no time did Mr. Bethel disclose to any of his fellow
jurors the fact of his arrest or of his promise of coopera-
tion. To no degree was the jury ‘‘tainted’’ by Mr. Bethel.
There was no misconduct by Mr. Bethel. The substitution
of the alternate for Mr. Bethel consented to by the defend-
ant, prevented any prospective prejudice to the defendant.
The belated disclosure concerning Mr. Bethel can be attrib-
uted in part to the delay in obtaining his voir dire minutes
and perhaps to trial pressures on the prosecutors. How-
ever that may be, the delay itself in supplying this infor-
mation, although protracted, in no manner constituted
prosecutorial misconduct, as will be seen, under the pro-
visions of the CPL (CPL 330.30, subd. 2).
At the commencement of the proceedings on December
9, District Attorney Richard Kuh, again in camera, in the
presence of defendant and defense counsel and others,
made the following statement: On December 4, he had
learned for the first time that during the trial of Mr.
Phillips a letter had been received by his office on October
23 from one John Dana Smith seeking employment as an
investigator. It developed that Mr. Smith was Juror No. 3
at the Phillips’ trial. The letter, addressed to District
Attorney Kuh’s office, read as follows: ‘‘I understand that
a federally funded investigative unit is being formed in
your office to investigate major felonies. I wish to apply
37a
for a position as an investigator.’’ Attached to the letter
was a résumé containing biographical information concern-
ing Mr. Smith. District Attorney Kuh proceeded to out-
line the history of the letter from the time of its receipt
until its disclosure in court.
Defense counsel requested and was granted an imme-
diate hearing concerning the letter and the failure of the
trial prosecutors to disclose its existence during the trial.
A hearing was held in open court (CPL 330.40, subd. 2, par
[f]). Decision was reserved. It is noted that the law
places upon the defendant ‘‘the burden of proving by a
preponderance of the evidence every fact essential to sup-
port the motion’’ (CPL 330.40, subd. 2, par [g]).
Facts
The testimony elicited at the hearing revealed the follow-
ing unprecedented chain of events:
After being selected and sworn as a juror on September
23, Mr. Smith lunched with Criminal Court Officer Rudolph
Fontaine, who had attended the John Jay College of Crimi-
nal Justice with Mr. Smith’s wife. They discussed jobs in
law enforcement. Mr. Fontaine told Mr. Smith of oppor-
tunities for persons with investigative backgrounds in the
District Attorney’s office. Mr. Smith evinced interest.
Mr. Fontaine then inquired of Investigator Mulderig of
the District Attorney’s Office, whom he knew, as to the pro-
cedure for filing applications for investigators’ positions
for himself and a friend. Mr. Johanssen, Mr. Mulderig’s
superior, verified the procedure. At no time did Mr. Fon-
taine mention Mr. Smith or his status as a juror. However,
he did relate the information obtained to Mr. Smith. Mr.
Smith’s letter was mailed on October 22 and Mr. Fontaine
submitted his own letter of application.
38a
Mr. Smith’s letter found its way to the desk of Assistant
District Attorney Conboy, an administrative assistant, who,
upon returning from vacation, referred it on or about
November 9 to Miss Joan Sudolnik, an assistant in charge
of the major felony program in the District Attorney’s
Office. She was seeking to employ investigators. In routine
fashion she turned the letter over to her subordinate Mr.
Lang, who noted on a memo that an appointment should be
made with the applicant Mr. Smith. Up to that point no
one in the District Attorney’s Office knew or had reason to
know that the applicant was a juror in a pending criminal
trial. Supreme Court Officer Mario Piazza saw Mr. Smith
and Mr. Fontaine at a luncheonette during the trial and
voluntarily undertook to learn the name of the person in
charge of hiring investigators and was told by Mr. Lang on
a subsequent date that it was Miss Sudolnik. Mr. Fontaine
sought to learn from Assistant District Attorney Holmes,
whom he knew, the progress of Smith’s letter of application
and his own. In conversation he told Mr. Holmes that Mr.
Smith was a juror in the Phillips case and raised the ques-
tion, for the first time, whether such an application was
proper. Mr. Holmes thought it sufficiently questionable to
immediately inform his supervisor Mr. Lankler of the
pending application and, in addition, promptly told Miss
Sudolnik what he had learned. This oceurred November 13.
Upon ascertaining that indeed there was an application
from Mr. Smith and that Mr. Smith was a juror in the
Phillips case, Miss Sudolnik immediately attempted to com-
municate with Mr. Litman, but could not reach him until the
following day, November 14. Incredulously, Mr. Litman
heard the information about Mr. Smith and also was told
that no action was taken upon the application. Mr. La
39a
Penta was present. Mr. Litman directed Miss Sudolnik
to make no response at all to Mr. Smith’s application, with
which direction she complied. On Friday night, November
15, Mr. Holmes met Mr. La Penta in a restaurant and began
to tell him of the Smith letter of application. Mr. La Penta
did not want to hear any mention of it at that time and
place.
When Mr. La Penta and Mr. Litman discussed this ex-
traordinary development, they concluded that all that was
required of them in the circumstances of the trial was to
permit no contact to develop with this juror concerning the
letter of application. That posture continued until after
the jury’s verdict was returned. It was developed that
neither Mr. Litman nor Mr. La Penta sought advice from
any superior or colleague with respect to Mr. Smith’s letter.
It is obvious, however, that Mr. Smith’s presence on the
jury was now known to many persons within and without
the District Attorney’s Office.
On December 4, following an unsuccessful habeas corpus
proceeding initiated by defendant in the United States Dis-
trict Court, Southern District of New York, Mr. La Penta
told Mr. John Keenan, Chief Assistant District Attorney, of
Mr. Smith’s letter of application. Mr. Keenan promptly
investigated all the circumstances surrounding this appli-
cation and made the results known to District Attorney Kuh
without delay. Mr. Kuh promptly and properly disclosed
the facts as he knew them concerning the letter of applica-
tion and the result of Mr. Keenan’s investigation to the
defense and the court, as stated hereinabove.
In evaluating the testimony, this court finds that despite
the probing and exhaustive examination of each and every
witness at the hearing, there is no evidence which to any
40a
degree points to a conclusion that any member of the Dis-
trict Attorney’s staff, particularly Mr. Litman, Mr. La
Penta, or any court officer, had a sinister or dishonest
motive with respect to Mr. Smith’s letter of application, or
sought to gain thereby an unfair advantage over the de-
fendant.
We turn, first, to the defense claim that Juror No. 3 was
guilty of such improper conduct that the jury’s verdict
should be set aside. Specifically, it is claimed that Mr.
Smith’s desire to obtain employment in the District Attor-
ney’s office during the trial meant that under no cirecum-
stances would his verdict be other than guilty, because his
success in obtaining such employment depended upon the
return of a guilty verdict, and thus the defendant was de-
nied his constitutional right to a fair trial.
Of course, no such conclusion is warranted from a mere
reading of the letter.
Whether such a conclusion is warranted at all requires
an examination of all the facts and circumstances disclosed
at this hearing.
A review of the vuir dire examination of Mr. Smith is
helpful in assessing this claim. On his voir dire examina-
tion Mr. Smith made the following declarations: 1. that he
was a store detective employed by Bloomingdale’s for one
year, from 1972 to 1973; 2. that his wife studied criminology
at the John Jay College of Criminal Justice; 3. that he, Mr.
Smith, following his expected graduation from the Colum-
bia University School of General Studies, in October,
planned to obtain employment in Federal Drug Enforce-
ment overseas, in cooperation with local [foreign] authori-
ties (and had already applied for such employment); 4.
that he had, as store detective, made a number of arrests
4la
and on many occasions had cooperated with the New York
County District Attorney’s Office; 5. that his wife had been
the victim of a crime, that she had been stabbed, sustaining
serious injuries, and that her assailant had been prosecuted
by the New York County District Attorney’s Office.
The continuing interest of the juror in law enforcement
was acknowledged by defense counsel and he gave it his
attention in the following questions put to Mr. Smith:
‘*Q. Mr. Smith, I’m just a little curious here, I’m
going to use the term that you are in a peculiar situa-
tion on this case. You’ve sort of been on the side of
the law and law enforcement, making arrests for
Bloomingdale’s and now you are about to be appointed
with a law enforcement agency with the Federal Gov-
ernment. Obviously in this case Bill Phillips is being
accused and being prosecuted by the District Attor-
ney’s Office, and members of the Police Department in
the City of New York, who are a central part of law
enforcement—and I’m sure you are aware from your
background of what you know—that Bill Phillips sits
here in this case just like in every case; and our sys-
tem of law says that he’s presumed to be innocent.
Now, do you feel that in this particular case, in spite
of your experience, that the term presumption of inno-
cence, as applies in this case, is not just theoretical, but
the real meaningful law? Will you be able to keep that
in mind?
‘*A. I will do that, and Mr. Rothblatt, let me say
that the reason, as I mentioned before, my ex-boss
steered me to the Federal Drug Enforcement Agency
for legal experience. At this time, I wouldn’t be able
to go to law school. In the near future, after serving
with the Drug Enforcement Agency, I could go to law
school. At this time, I’ve just had enough college
atmosphere.
42a
**Q. You want a little sabbatical?
‘*A,. Ultimately, that is what my plans would be.
**Q. In other words, law enforcement is an inter-
mediate step?
‘*A. It’s all part of the same package, but it’s in the
legal and justice system.’’
It is also noted that the juror declared to the trial prose-
cutor that he would be ‘‘a fair and impartial juror in the
case’’, and to Mr. Rothblatt he stated that if he had a
reasonable doubt of the defendant’s guilt he would have no
hesitancy in returning a verdict of not guilty.
Despite his predilection for law enforcement in connec-
tion with his personal ambitions, Mr. Smith was accepted
by the defense without challenge for cause. He was there-
upon duly sworn as a juror in the case.
At the post-trial hearing conducted by this court, Mr.
Smith testified that he learned of a ‘ob opportunity in law
enforcement from an acquaintance, Criminal Court Officer
Fontaine, whose acquaintance he renewed after assuming
his role asa juror. He testified he never discussed the Phil-
lips’ case with Fontaine. When he learned from Mr. Fon-
taine the procedure in which an application could be for-
warded to the District Attorney’s Office, he gave his letter
and résumé to Mr. Fontaine, who mailed it. He admitted
that this act was imprudent, but asserted that his verdict in
no way was conditioned upon the hope of employment by
the District Attorney. He testified, ‘‘I am willing to take
a rap for naivete.’’ He stated to Mr. Rothblatt, ‘‘I swore
on oath to listen to the evidence and to render a verdict on
that evidence. I did so.’’ Further, ‘‘To imply that I
worked the jury’s mind is repugnant to me and to the other
jurors.’’ To a question whether the hope of employment
43a
would have in any way affected his verdict, he said, ‘‘That
didn’t enter my mind; I didn’t think about it that way.’’
Mr. Smith made no inquiry as to the progress of his letter
of application until after the verdict, when for the first time
he called Miss Sudolnik. She told him that she would look
into the matter but never again communicated with him.
Mr. Rothblatt also inquired as to a conversation post
verdict between Mr. Smith and his former supervisor at
Bloomingdale’s. Mr. Smith’s testimony with respect to
this was as follows: ‘‘A. He [Reilly] said, ‘Did you really
think the guy was guilty?’ and I said yes, he was guilty as
hell. He [Reilly] said, ‘Was there a long deliberation?’ I
said, ‘No it wasn’t a very long deliberation.’ That was the
extent of it.’” Mr. Smith also discussed the progress of his
application with Mr. Reilly, who had originally suggested
to Mr. Smith that he seek a job with law enforcement (see
voir dire of Juror Smith).
The defense has failed to establish that Mr. Smith’s
letter of application in any way reflected a prejudice, hos-
tility, or premature determination as to the defendant’s
guilt (United States v. Brown, 79 F.2d 321). In no way did
the letter reflect a state of mind on the part of this juror
other than that acknowledged by the defense when it ac-
cepted the juror. As stated, Mr. Smith’s predilection for
law enforcement was well known to the defense and hence
may not be used belatedly as a basis for challenge post-trial
(People v. Mack, 35 App. Div. 114; People v. Smith, 169
N.Y.S. 837; see, also, People v. Cosmos, 205 N.Y. 91,103).
From all the evidence adduced, this court finds that it
was Mr. Smith’s faith in his own integrity, in his own ability
to render a verdict on the evidence, which permitted him to
send his letter of application to the District Attorney, and
44a
ignore the possible construction which might be placed upon
such action. As will be seen, the act of sending the letter
did not constitute improper conduct within the meaning of
CPL 330.30 (subd. 2).
We now turn to the additional defense claim that the
trial prosecutors were guilty of improper conduct so as to
deny the defendant a fair trial.
Specifically, it is asserted that their failure to inform
defense counsel and the court of Mr. Smith’s letter of
application interfered with a substantial right of the de-
fendant, i.e., a right to a fair and impartial jury and, in
addition, if there had been such disclosure, the defendant
then had a right under such circumstances to challenge Mr.
Smith and have him removed from the jury before deliber-
ations began (CPL 270.35, subd. 2).
As stated earlier, the letter of application was called to
the attention of Mr. La Penta on November 14. The di-
lemma which then concerned the prosecutors was sum-
marized in Mr. La Penta’s testimony when he recalled
saying to Mr. Litman, ‘‘ What the hell do you do in a situa-
tion like this?’’
After reflection, the prosecutors concluded that Mr.
Smith’s expressed desire in the letter to obtain employment
in a Federally funded program in the District Attorney’s
Office was in no way inconsistent with the ambitions he un-
mistakably declared in the voir dire. They concluded that
under these circumstances Mr. Smith had not engaged in
any act of misconduct as to require them to bring knowledge
of his letter to the attention of the court or defense counsel ;
that their prosecutorial responsibility would be met if the
District Attorney’s Office deliberately and assiduously
avoided any further communication with Mr. Smith with
respect to the letter of application.
45a
They also reasoned that because there had been no dia-
logue between Juror Smith and the District Attorney’s
Office, as there had been between Juror Bethel and the office
of the Special Narcotics Prosecutor, the absence of bi-
lateral communication justified nondisclosure.
Tue Law
Juror Misconpuct
CPL 330.30, as far as applicable to this case, provides:
Motion to set aside verdict, grounds for.
‘*At any time after rendition of a verdict of guilty and
before sentence, the court may, upon motion of the defend-
ant, set aside or modify the verdict or any part thereof
upon the following grounds: * * *
‘*2. That during the trial there occurred, out of the
presence of the court, improper conduct by a juror, or im-
proper conduct by another person in relation to a juror,
which may have affected a substantial right of the defendant
and which was not known to the defendant prior to the
rendition of the verdict.’’
Under this section it appears that within certain time
requirements (which have been met in this case) a verdict
may be set aside on motion of the defendant only when
there was improper conduct on the part of a juror which
may have affected a substantial right of the defendant, or
only when there has been improper conduct by another
person in relation to a jury which may have affected a sub-
stantial right of the defendant, and such conduct was not
known to the defendant prior to the jury’s verdict. This
section of the CPL is derived from subdivisions 2, 3, and
4 of section 465 of our former Code of Criminal Procedure
46a
(see Denzer, Practice Commentaries, McKinney’s Cons
Laws of N.Y. Book 114, p. 13).
Subdivisions 2, 3 and 4 of section 465 of our former
Code of Criminal Procedure read as follows: ‘‘The court
in which a trial has been had upon an issue of fact has
power to grant a new trial, when a verdict has been ren-
dered against the defendant, by which his substantial rights
have been prejudiced, upon his application in the following
cases * * * 2, When the jury has received any evidence out
of court * * * 3. When the jury * * * have been guilty of
any misconduct by which a fair and due consideration of
the case has been prevented; 4. When the verdict has been
decided * * * by any means other than a fair expression
of opinion on the part of all the jurors.’’
It would appear our former Code of Criminal Procedure
empowered the court to grant a new trial when the jury
was ‘‘guilty of any misconduct,’’ but only where the de-
fendant’s ‘‘substantial rights have been prejudiced’’ and
only where such misconduct ‘‘prevented’’ a ‘‘fair and due
consideration of the case’’ (People v. Cocco, 305 N... 282,
287, dissenting opn., Fup, J.).
Upon comparison, the thrust of both sections appears to
be similar ; that is, upon defendant’s motion a jury’s verdict
may be vitiated where a defendant’s substantial rights
have been adversely affected by juror misconduct which
would prevent a fair and due consideration of the case.
To interpret properly the current provisions of the CPL
which permit a jury’s verdict to be set aside, it will be
necessary then to consider cases which were decided in
similar instances under our former Code of Criminal Proce-
dure. But first it will prove helpful to note the observations
of recognized commentators on the subject of criminal law.
It is not every act of misconduct by a jury which will
48a
his colleagues that the defendant on trial for robbery re-
sembled members of a family he formerly knew with a
reputation for being ‘‘tough’’, this statement was held not
to have prejudiced the defendant so as to warrant a new
trial (People v. Thompson, 198 N.Y. 396). Where a juror
read from a copy of the Penal Law and the Code of Crimi-
nal Procedure and exhibited those volumes to the jury
during deliberations, and where, in another case, a jury
obtained a copy of the revised statutes while deliberating
on a verdict, it was held in each case that the irregularity
did not vitiate the verdict unless it could be shown that the
defendant was prejudiced thereby (People v. Priori, 164
N.Y. 459; People v. Draper, 28 Hun 1). ‘‘[AJn irregularity
or indiscretion of a jury is not of itself sufficient to warrant
a new trial. More must be shown * * * The irregularity
or indiscretion must be of such a nature as prevented fair
and due consideration of the case’’ (People v. Catalanotte,
supra, p. 353).
On the other hand, in a case where a defendant, a for-
eigner, was tried for murder and testified in his own behalf,
and where it was established, without dispute, that a juror
stated he would not believe a person of such nationality
under oath, this continuing prejudice was held to deny
defendant a fair trial. The verdict of guilty was vacated
asa nullity (People v. Leonti, 262 N.Y. 256). The fact that a
juror had a racial prejudice against the accused was held
to deprive the defendant of a fair trial (People v. Whitmore,
45 Mise. 2d 506, revd. on other grounds 27 A.D.2d 939).
Where jurors made unauthorized visits to the scene of
alleged crimes, such action constituted the jurors witnesses
against the respective defendants, thus depriving the par-
ticular defendant of Sixth Amendment rights, i.e., the right
49a
to be confronted by such witnesses (People v. De Lucia,
20 N.Y.2d 275; People v. Crimmins, 26 N.Y.2d 319; see, also,
Parker v. Gladden, 385 U.S. 363). Where a juror concealed
a personal bias against the defendant, the defendant’s right
to a fair trial by an impartial jury was adversely affected
(People v. Harding, 44 A.D.2d 800). In recognition of the
fundamental rights to which a defendant is entitled in the
administration of criminal law, it has been emphasized ‘‘a
defendant has a right to a trial by a fair and impartial
jury’’ (People v. DeLucia, supra, p. 278).
Thus, in determining whether alleged misconduct by a
juror should warrant a new trial, it must be demonstrated
that the fundamental right to a fair and impartial assess-
ment of the facts were frustrated. This is always a crucial
issue where juror misconduct is asserted.
Federal Jurists have considered similar problems. A
reference to two cases in the Southern District will suffice.
In United States v. Brown (79 F.2d 321, supra), during the
pendency of a trial, a juror obtaining a haircut was asked
by his barber how the trial was going and whether the
defendant would be convicted. He answered, ‘‘I think so.’’
This indiscretion was held not to show, as claimed, ‘‘a pre-
mature conclusion by the juror’’ as to the defendant’s guilt
so as to deprive the defendant of a fair trial. ‘‘It * * *
was not an expression of a separate opinion to which a
juror might feel himself committed; it was merely a fore-
cast of the verdict, which could hardly be more than a pro-
visional guess.’’ (See opn., Learnep Hanp, J., p. 324.)
The case of People ex rel. Moore v. Fay (238 F. Supp.
1005, 1007) is most instructive on the issues before this
court. Following a verdict in a State court convicting the
defendant Moore of manslaughter, it was disclosed that
50a
during the trial a juror, in violation of instructions not to
discuss the case with others, communicated with his own
attorney as to the propriety of a question asked by counsel
during the trial. Judge Epwarp Weryre.p of the United
States District Court, in denying habeas corpus relief
sought by the defendant, observed (p. 1007) : ‘‘ There can be
no doubt that the juror’s communication with the third
party violated the Court’s expressed instruction, in conse-
quence of which the juror’s name was stricken from the
jury list. However, not every violation by a juror of the
Court’s instructions with respect to third party communi-
cations, nor every irregularity in a juror’s conduct, auto-
matically compels the declaration of a mistrial, the replace-
ment of a juror, or the vacatur of a judgment of conviction.
The dereliction must be such that it may be said to deprive
the parties of the continued objective and disinterested
judgment of the juror, thereby foreclosing a fundamentally
fair trial. This is not a case where a third party communi-
cates with a juror with overtones of bribery, coercion, tam-
pering, shadowing or other conduct which carries with it a
presumption of prejudice. Here, the juror, seemingly in
doubt as to the prosecution’s action and the Court’s ruling,
himself initiated the communication. In and of itself, the
incident did not suggest any prejudicial attitude toward the
defendants.’’ Cases have been cited by the defendant which
spell out a dialogue or bilateral communication between a
juror and third parties where the respective court believed
the matter to be of such moment as to set a verdict aside
(Tableporter v. Urist, 157 Mise. 347 ; Pekar v. United States,
315 F.2d 319).
On the other hand, in a prosecution for passing a ficti-
tious check, a casual conversation between a trial prosecutor
5la
and a juror in a courtroom corridor, in plain view of by-
standers, was held not to be such misconduct as to require
the setting aside of the jury’s verdict (People v. Newell, 192
Cal. 659).
In the case at bar no dialogue or bilateral communication
between Juror Smith and representatives of the District At-
torney’s office has been established. The direction of Mr.
Litman to Miss Sudolnik not to respond to the letter effec-
tively encapsulated the communication. There was nothing
in the letter which in any way was inconsistent with the
ambitions expressed by the juror in the voir dire, which
were acknowledged and accepted by the defense. Mr.
Smith’s letter was indeed an indiscretion but, in the light of
his voir dire, in no way reflected a premature conclusion as
to the defendant’s guilt, or prejudice against the defendant,
or an inability to consider the guilt or innocence of the
defendant solely on the evidence.
ProsecuTorRIAL Misconpuct
We turn now to the issue of prosecutorial misconduct as
claimed by the defense. The decision not to disclose the job
application of Juror Smith was made by Mr. Litman, with
six trial weeks behind him and summation a week away,
with knowledge of the looming problem of Juror Bethel and
at a time when the defendant had just completed his fourth
day of cross-examination by Mr. Litman.
Mr. Litman believed that he met his professional respon-
sibility by ignoring Mr. Smith’s letter and advising his
associates in the District Attorney’s Office to do the same.
The standards of the American Bar Association provide :
‘*Tf counsel suspects * * * juror misconduct he should, of
course, report it to the court’’ (American Bar Association,
52a
Standards Relating to the Prosecution Function and the
Defense Function, commentary to § 5.3, p. 116).
The standards of the New York State Bar Association
provide: ‘‘Because of his duty to aid in preserving the
integrity of the jury system, a lawyer who learns of im-
proper conduct by or towards * * * a juror * * * should make
a prompt report to the court regarding such conduct’’ (Code
of Professional Responsibility, EC 7-32).
Mr. Litman and Mr. La Penta, in their testimony, ex-
plained that they did not view Mr. Smith’s letter as ‘‘ juror
misconduct,’’ and it appears that they were correct. But
undoubtedly, it was questionable conduct, and, under the
circumstances, this court and defense counsel should have
been made aware of it during the trial, as they were made
aware of it on December 9.
It was a serious error in judgment, although there may
be room for a contrary opinion (People v. Cocco, 305 N.Y.
282, supra, [see dissenting opn., Fup, J., p. 287]; see, also,
United States v. Kyle, 469, F.2d 547). The Assistant Dis-
trict Attorneys were quasi-judicial officers holding a special
status in the administration of criminal law. As prosecu-
tors, they were ‘‘not [to be] the judge of what is unduly
prejudicial to the government or the defense’’ (United
States v. Kyle, supra, p. 552 dissenting opn. of Bazeton, Ch.
J.). Certainly prosecutors are to be held to a higher stand-
ard than that required of ordinary laymen (ef. Meinhard v
Salmon, 249 N.Y. 458). Had they not permitted the pres-
sures of the case to becloud their professional vision, there
would be no need for this hearing, the occurrence of which
has proved inevitable.
Moreover, the juror could have been excused by consent,
or an application for a discharge of a juror could have been
53a
made by defense counsel (see People ex rel. Moore v. Fay,
238 F. Supp. 1005, supra). Whether at the time this court
would have ruled to excuse the juror on grounds specified
in our CPL (§ CPL 270.35) is now beside the point, but will
be discussed hereinafter. Alternates were available to re-
place up to four jurors, who for one reason or another might
be unable to sit until the conclusion of the trial.
However we are not now concerned with the resolution
of a question of professional ethics. We are considering a
definite narrow legal issue, i.e., whether the failure to dis-
close Mr. Smith’s letter of application constituted ‘‘im-
proper conduct by another person in relation to a juror,’’
and if so, may it ‘‘have affected a substantial right of the
defendant’’ (CPL 330.30, subd. 2).
From a mere reading of the statute one may readily con-
clude that the phrase ‘‘improper conduct by another person
in relation to a juror’’ was designed to meet the problem of
‘‘jury tampering’’; that is, affirmative action by a third
person directed toward a juror with intent to affect a jury’s
verdict (for examples of such conduct see People v. Cocco,
305 N.Y. 282, supra; People v. Sher, 24 N.Y.2d 454).
In the Cocco case, a discharged alternate in a public
restaurant, during the time the sequestered jury was about
to dine, informed a juror that he heard the defendant on
trial for a felony ran ‘‘a sporting house.’’ Despite the
juror’s disclaimer that her judgment was in no way im-
paired as a result of this conversation, the verdict of guilty
was set aside, the Court of Appeals concluding that the
defendant’s right to a fair trial was adversely affected.
In another case, during the taking of testimony in a trial
of a defendant charged with murder, several jurors received
anonymous communications by telephone disparaging the
54a
defendant. The trial court, after determining that each
recipient of a call could render a fair and impartial verdict
on the evidence, refused to set aside a verdict convicting the
defendant. The judgment of conviction was affirmed
(People v. Sher, supra). It is not necessary to analyze the
rationale distinguishing the contrary result in each case.
The point is that in each case it was affirmative activity by
a third party in relation to a juror which brought into ques-
tion whether the sanction of law should be imposed.
It is claimed by the defense that the failure of the trial
prosecutor to disclose Mr. Smith’s letter amounted to ‘‘im-
proper conduct by another person in relation to a juror.’’
Such omission to disclose cannot be equated with jury tam-
pering. The challenged behavior of the prosecutors focuses
upon an omission to act in relation to a juror rather than
some positive deliberate step by the prosecutors designed
to influence the jury’s verdict. Accordingly, this court
cannot hold in this instance that there was prosecutorial
misconduct within the meaning of the CPL [CPL 330.30,
subd. 2].
The defense also contends that the failure to disclose
Mr. Smith’s letter during trial deprived it of the opportun-
ity to challenge the juror during trial.
The CPL permits, under certain circumstances, the dis-
charge of a juror during trial where the juror’s continued
presence on the jury is attacked (CPL 270.35, subd. 2). If it
is shown ‘‘that a juror has engaged in misconduct of a
substantial nature but not of a kind to require the declara-
tion of a mistrial pursuant to subdivisions one and two of
section 280.10, the court may,’’ if an alternate juror is
present, ‘‘discharge such * * * juror’’ and replace him with
the appropriate alternate.
55a
It is not any misconduct of a juror which may require a
change in the jury’s composition, but ‘‘misconduct of a sub-
stantial nature’’ which would not require the declaration of
a mistrial under conditions specified in another section of
the CPL (CPL 280.10).
Under CPL 280.10 (subd. 1), a defendant may move fora
mistrial prior to the jury’s deliberation only when ‘‘there
occurs during the trial an error or legal defect in the pro-
ceedings, or conduct inside or outside the courtroom, which
is prejudicial to the defendant and deprives him of a fair
trial.’’
To warrant a mistrial on a defendant’s motion, the con-
duct complained of must ‘‘so clearly [deprive the defend-
ant] of a fair trial that it would require a reversal on appeal
of a prospective judgment of conviction’’ (see Denzer, Prac-
tice Commentaries, McKinney’s Cons Laws of N.Y., Book
11A, CPL 280.10, p. 521, citing People v. Byrne, 17 N.Y.2d
209; People ex rel. Costello v. La Valle, 13 A.D.2d 601;
People v. Montlake, 184 App. Div. 578).
While the degree of misconduct required to merely ex-
cuse a juror under attack during trial (CPL 270.35, subd.
[2]) appears to be less than that which would warrant mis-
trial sought by a defendant (CPL 280.10, subd. 1), neverthe-
less to remove a juror uring trial, his misconduct must be
found to be substantial. It necessarily follows that such
misconduct must be of such import as to affect adversely the
ability of the juror to sit fairly and impartially assess the
issues on trial.
The conduct of Mr. Smith in sending his letter of Octo-
ber 22, as shown hereinbefore, in no way deprived the de-
fendant of a fair trial so as to warrant the declaration of a
mistrial on defendant’s motion under CPL 280.10. Nor did
that act amount to misconduct of a substantial nature which
56a
would, in the light of his answers during his voir dire exam-
ination, require him, ipso facto, to be excused under CPL
270.35 (subd [2]). To no degree did the letter have such
import in relation to the issues at the trial so as to demon-
strate Mr. Smith’s hostility or prejudice to the defendant
or a premature determination of the defendant’s guilt
(United States ex rel. Moore v. Fay, 238 F. Supp. 1005,
supra; United States v. Brown, 79 F.2d 321, supra). It was,
at most, an irregularity. Had the receipt of the letter been
disclosed at the trial, in the absence of a consent by the
District Attorney to excuse Mr. Smith as a juror, defend-
ant’s motion challenging the right of Mr. Smith to continue
to sit as a juror would necessarily have to be denied as a
matter of law.
ConcLusIon
Each such case must be considered in the light of its own
facts and circumstances (United States v. Betner, 489 F.2d
116). ‘*{W]hen jury misconduct is alleged in a defendant’s
motion for a new trial, the trial judge has a duty to take
the following actions: he must conduct a full investigation
to ascertain whether the alleged jury misconduct actually
occurred; if it occurred, he must determine whether or not
it was prejudicial; unless he concludes that it was clearly
not prejudicial, he must grant the motion for a new trial;
if he concludes that it did not oceur or that it was clearly
not prejudicial, he must spell out his findings with adequate
specificity for meaningful appellate review.’’ (United
States v. McKinney, 429 F.2d 1019, 1026).
Only for the most compelling reasons should a jury ver-
dict be set aside (McDonald v. Pless, 238 U.S. 264; Tanner v.
Stimm, 66 Mise. 2d 1030; People v. Maynard, 80 Mise. 2d
279).
57a
It would be manifestly improper to permit a tangential
post-trial attack of insufficient strength to overcome the
verdict in this case, which rests upon so firm a factual
foundation.
More particularly, it would be manifestly improper to
invalidate the verdict here merely because of unprece-
dented imprudence on the part of a juror or unique mis-
judgment of the trial prosecutors as to the requirement
of professional ethics, where no prejudice to the defend-
ant’s substantial rights has been shown and substitution for
such juror during trial most likely would not have altered
the result (ef. United States v. Keogh, 391 F.2d 138, 148).
As has been stated in another connection, ‘‘A defendant
is entitled to a fair trial but not a perfect one’’ (Lutwak
v. United States, 344 U.S. 604, 619).
Aware that the present application for a new trial under
CPL 330.30, like its predecessor section 465 of the Code of
Criminal Procedure, is addressed to the sound judicial
discretion of the Trial Judge, this court is of the opinion,
from the testimony adduced at this hearing, that the de-
fendant’s substantial rights were not prejudiced.
Although our CPL specifies that the defendant has the
‘‘burden of proving by a preponderance of the evidence
every fact essential to support the motion’’ (CPL 330.40,
subd. 2, par [g]), it is noted that the defendant’s claim that
he was denied his right to a fair trial is one of constitutional
dimension (U.S. Const., 6th Amdt.; N.Y. Const. art. I, § 6).
Accordingly, this court holds, as it is required to do under
such circumstances, that it is satisfied beyond a reasonable
doubt that the ‘‘irregularities’’ established were harmless
and did not contribute to the verdict in this case (Chapman
v. California, 386 U.S. 18, supra, citing Fahy v. Connecticut,
375 U.S. 85; People v. Catalanotte, 67 Misc. 2d 351, supra).
The defendant’s motion is in all respects denied.
58a
APPENDIX F
Judgment of the United States Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE Seconp CigcuitT
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house in the City of New York, on the twenty-sixth day of
September, one thousand nine hundred and eighty.
Present:
Hon. James L. Oakes
Hon. Exvuswortn A. Van GRAAFEILAND
Circuit Judges
Hon. Evorene H. Nickerson
District Judge
80-2099
—
Wu R. Pxsuures,
Petitioner-Appellee-cross-appellant
v.
Harotp J. Sirus, Superintendent of
Attica Correctional Facility,
Respondent-A ppellant-cross-appellee
i
Appeal from the United States District Court for the
Southern District of New York.
59a
This cause came on to be heard on the transcript of
record from the United States District Court for the South-
ern District of New York, and was argued by counsel.
On ConsmperaTION Wuenreor, it is now hereby ordered,
adjudged, and decreed that the judgment of said District
Court be and it bereby is affirmed in accordance with the
opinion of this court with costs to be taxed against the
respondent-appellant.
A. Dante Fusaro
Clerk
By: /s/ Rotanne Henry
Rolanne Henry
Deputy Clerk
60a
APPENDIX G
Denial of Petition for Rehearing
UNITED STATES COURT OF APPEALS
Seconp Circuit
At a stated term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Court House, in the City of New York, on the eighth day of
December, one thousand nine hundred and eighty.
No. 80-2099
—--
WiriuuM R. Pxiups,
Petitioner-Appellee,
v.
Harotp J. Smirn, Superintendent of
Attica Correctional Facility,
Respondent-Appellant.
A petition for rehearing containing a suggestion that
the action be reheard in banc having been filed herein by
counsel for the respondent-appellant, Harold J. Smith,
Upon consideration by the panel that heard the appeal,
it is
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