Flirtatious juror leads to conviction reversal

July 9, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

Hon. Priscilla Hall sat on the Appellate Division panel

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Improper inquiry of a juror suspected of flirting with women connected to two defendants in a robbery trial compelled the Brooklyn Appellate Division to reverse the defendant’s conviction.

A Queens jury convicted defendant Dewayne Henry and a co-defendant of robbery, criminal possession of a weapon and related charges in September 2012. During a trial recess, a witness informed Henry’s defense counsel that a juror had been observed talking to Henry’s wife.

According to the wife, the juror allegedly told her “the evidence speaks for itself, or they got themsel[ves] into this situation.”

Defense counsel alerted the judge and noted his suspicion that juror seven was the alleged offender. The presiding trial judge, instead of speaking directly to juror seven, reminded the jury as a group to remain open-minded and advised any juror who could no longer be impartial to step forward. No one did and the trial resumed.

When the trial ceased and jury deliberations began, juror number seven was again accused of speaking with a female member of the defendants’ support team. According the court record, it is alleged that juror seven — on at least two occasions — flirted with the co-defendant’s child’s mother.

Again, defense counsel alerted the Queens judge of the suspected infraction and moved the lower court for a mistrial. Refusing to grant a mistrial, the presiding judge attempted to cure the perceived error by speaking with juror seven, requesting that he not speak to anyone in the court building.

Improper conduct by a juror, including speaking with any defendant, defense counsel, witness or family member of a defendant, is grounds for juror disqualification and — in extreme cases — reason enough for a mistrial.

When confronted with alleged juror misconduct, it is incumbent upon the presiding trial judge to “conduct an in camera inquiry of the juror,” the Appellate Division, Second Department reminded in its ruling in Henry’s conviction appeal.

The purpose for an in-camera — or in judge’s chambers — probe is to allow the judge along with defense and prosecuting counsel to determine the jurors’ impartiality. In Henry’s case, the judge “erred in failing to conduct an in-camera ‘probing and tactful inquiry’ of juror number seven,” the Appellate court ruled.

When advised as to juror seven’s comment to Henry’s wife that “the evidence speaks for itself,” the trial judge should have immediately called juror seven into chambers and inquired further. Instead, the appellate justice noted, the trial judge gave a general reminder to the entire jury of their obligation to be impartial. The presiding judge was again alerted to a second infraction by juror seven and again failed to look further into the matter against protests by defense counsel.

“[N]o inquiry at all was made of with respect to the later incidents,” the higher court noted leaving it “unknown whether the juror [seven] held an opinion that affected his ability to be impartial.”

The lower court’s error was deemed harmful enough to Henry’s constitutional right to a fair trial to order a reversal of his robbery and weapons conviction.

Justices L. Priscilla Hall, Sheri Roman, Colleen Duffy and Hector LaSalle sat on the Appellate Division panel.

Bryan Kreykes of Appellate Advocates appeared on Henry’s behalf and Queens Assistant District Attorneys John Castellano, Nicoletta Caferri and Nancy Fitzpatrick Talcott appeared for the prosecution.