Friday, March 22, 2019

Judge's ex parte conversation with jury gets defendants a new trial

This case is maybe the most bizarre criminal appeal this year from the Second Circuit. The Court of Appeals orders a new trial for two people accused of marriage fraud because the trial judge had an ex parte conversation with the jurors and may have compromised the integrity of the jury process by undermining the presumption of innocence.

The case is U.S. v. Mehta, issued on March 21. The defendants are a man and woman who were charged with charged with marriage fraud in violation of the immigration laws. During trial, the judge met with five jurors to discuss their concern about the defendants' behavior outside the courthouse during trial. The jurors told the judge that the defendants "have been kind of lingering and staring, like, walking noticeably slow and I feel like I see them, see me, if I was coming in, even if I've been behind them, like, from the second floor parking ramp to the entrance." In other words, the jurors thought the defendants were following them around suspiciously outside the building. The judge told the jurors, "That's disturbing," and said he would assign a court officer to accompany the jurors to their cars. The judge also told the jurors that, after years of presiding over trials, this situation was unusual. The lawyers were not present during this colloquy. When the judge discussed this issue with the lawyers moments later, he instructed counsel to tell their clients "to stay the hell away from the jury."

At the close of trial, the judge instructed the jury, "You may consider the fact that a defendant's interest in the outcome of the case creates a motive for false testimony, but it by no means follows that a defendant is not capable of telling the truth."

New trial for defendants. The ex parte conversation with the jurors was wrong because whenever the jury communicates with the court during trial (even if it's in the form of a note), counsel must be present. This is what the public trial provision of the Bill of Rights is all about. The same holds true when the court communicates with the jury. That did not happen here. Counsel is supposed to get involved in these conversations because they can suggest how to handle the inquiry. While the defendants were charged with non-violent crimes, "the judge's comments to the jurors strongly implied that the defendants posed some kind of threat of physical danger to the jurors." Defendants' counsel could have helped find a better way to deal with the jurors' concerns. Making matters worse, the other jurors who were not present during this ex parte meeting were never told what happened in that meeting, which raises the risk that the jurors "reached unfounded conclusions about the defendants . . . without any guidance from the District Court or from counsel."

Making matters worse was the jury charge, which violated the settled rule that "district courts should not instruct juries to the effect that a testifying defendant has a deep personal interest in the case." The jury charges undermines the presumption of innocence. Taken together, these trial errors get defendants a new trial. 

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