New York Federal Criminal Practice Blog
September 29, 2008

EDNY Judge Denies Motion for New Trial Premised on Allegedly False Statements by Juror During Voir Dire

A prospective juror who says he’s a political science professor, albeit also a lawyer who has not practiced for the last six years, sounds like a good defense gamble.  After all, liberal professors outnumber conservatives in the social sciences by 11 to 1.  On the other hand, if you throw in that that same individual “received a bachelor’s degree from Yale University, a master’s degree from Harvard University, a law degree from Harvard, taught at the University of Michigan law School, was a litigator at two New York City law firms, and served for seven years as general counsel to two New York City agencies and as acting commissioner of homeless services,” one might think again about having such a smart, worldly person on the jury, since people with these kinds of credentials can wield disproportionate influence in the jury room.  It’s great if that influence operates in your favor, but can erase the possibility of a hung verdict if it does not.

In United States v. Bangiyev, 07-cr-331 (NG), 2008 WL 4240005 (E.D.N.Y. September 12, 2008), the presence of such a juror in a counterfeiting trial spawned a Rule 33 motion for a new trial on the grounds that the juror’s failure to reveal his legal work history was materially dishonest.  Had it known the truth, the defense contended it would have struck the juror for cause, or exercised a peremptory challenge.  A peculiar wrinkle in the case involved a post-verdict encounter between the judge and two jurors, who asked to speak to her about an aspect of their decision.  Judge Gershon declined to speak to them.  The defense – creatively – suggested that this was evidence that the jury had been “coerced and improperly influenced” by the deceptive professor/litigator.
Judge Gershon denied the motion for a new trial, holding first that the juror had not been dishonest – she had only asked the jurors in voir dire about employment with a law enforcement agency, which she found did not encompass the juror’s employment in the New York City Law Department.  Moreover, even if the juror had misled the court, there was no evidence that he had harbored any bias against the defendant to sustain a cause challenge, and the defense had forfeited its right to make an informed peremptory challenge by failing to ask additional questions about his employment history. 
Most interesting in the decision are the court’s comments on the defendant’s claim that the juror improperly used his experience and learning to influence the others.  Dismissing the claim as pure speculation, Judge Gershon added that, in any event, “personal experiences are permissible influences on jury deliberations.”  Rather, what is prohibited is the introduction of additional extra-record facts about the defendant.  She quoted Judge Friendly: “while the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not [consider] in the confines of the jury room ...specific facts about the specific defendant then on trial” (emphasis in the original).

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