APL-2018-00144

Onondaga County Clerk’s Indictment No. 2014-635-1 and Index No. 2014-0737

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THE PEOPLE OF THE STATE OF NEW YORK,
Appellant,
- against -

M. ROBERT NEULANDER,

Defendant-Respondent.

BRIEF FOR AMICUS CURIAE IN SUPPORT

OF DEFENDANT-RESPONDENT

CAROLINE RULE
KOSTELANETZ & FINK, LLP
7 World Trade Center, 34th Floor
New York, New York 10025
(212) 808-8100
crule@kflaw.com
- and -
SUSAN R. NECHELES
HAFETZ & NECHELES LLP
10 East 40th Street, 48th Floor
New York, New York 10016
(212) 997-7400
snecheles@hafetznecheles.com
Attorneys for Amicus Curiae New York Council
of Defense Lawyers

Date Completed: February 20, 2019

 TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT 2
ARGUMENT 5
I. A DEFENDANT IS DEPRIVED OF THE RIGHT TO TRIAL BY AN
IMPARTIAL JURY WHEN A JUROR ENGAGES IN CUMULATIVE
MISCONDUCT THAT VIOLATES THE COURT’S INSTRUCTIONS, AND
THEN LIES UNDER OATH ABOUT HAVING DONE SO - AND A NEW
TRIAL IS REQUIRED AS A MATTER OF LAW 5
A. A Juror’s Honesty is the Most Relevant Barometer of Whether She Was an
Impartial Juror 6

B. A New Trial Is Required as a Matter of Law When a Juror is as Thoroughly

Mendacious as Juror 12 11
C. The People’s Recitation of Alleged Evidence of Guilt is Irrelevant to the
Question Whether the Juror Was Unfit to Have Served 16
II. EVEN IF THE PEOPLE’S ARGUMENT THAT THERE WAS NO
PREJUDICE IS COGNIZABLE, THE JUROR’S CUMULATIVE
MISCONDUCT HERE CREATES A PRESUMPTION OF LACK OF
IMPARTIALITY, AND THE PEOPLE CANNOT REBUT
THIS PRESUMPTION THROUGH THAT JUROR’S OWN TAINTED
TESTIMONY 18
A. Cumulative Misconduct by a Juror Gives Rise to a Presumption of Bias .... 18

B. The Presumption of Juror Bias That Arises From a Juror’s Dishonesty

Cannot be Rebutted by the Juror’s Own Tainted Testimony 20
CONCLUSION 28

CERTIFICATE OF COMPLIANCE 29
 TABLE OF AUTHORITIES
CASES
Arkwright v. Steinbulger, 283 A.D. 397 (2d Dep’t 1954) 21
Burton v. Johnson, 948 F.2d 1150 (10th Cir. 1991) 6
Chambers v. State , 739 S.E.2d 513 (Ga. Ct. App. 2013) 25
Dietz v. Bouldin, _U.S. 136 S. Ct. 1885 (2016) 19
Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) 11, 12, 19, 20, 25
Estes v. Texas, 381 U.S. 532 (1965) 5
Ex parte Arthur, 835 So.2d 981 (Ala. 2002) 15
Gomez v. United States, 490 U.S. 858 (1989) 12
Gray v. Mississippi, 481 U.S. 648 (1987) 5
Green v. White, 232 F.3d 671 (9th Cir. 2000) 20
Mattox v. United States, 146 U.S. 140(1892) 18
McDonough Power Equip, v. Greenwood, 464 U.S. 548 (1984) 6, 8, 10, 11
Panko v. Flintkote Co., 7 N.J. 55, 80 A.2d 302 (1951) . 6
People v. Clark, 81 N.Y.2d 913 (1993) 26
People v. Crimmins, 36 N.Y.2d 230 (1975) 17

...
People v. Estella, 68 A.D.3d 1155 (3d Dep’t 2009) . 17
People v. Fox, 172 A.D.2d 218 (1st Dep’t 1991) 13,22, 23
People v. Giarletta, 72 A.D.3d 838 (2d Dep’t 2010) 17, 18
People v. Harris, 526 N.E.2d 335 (111. 1988) 21

People v. Havner, 19 A.D.3d 508 (2d Dep’t 2005) 13

People v. Henriquez, 3 N.Y.3d 210 (2004) 6

ii
People v. Hensley, 330 P.3d 296 (Cal. 2014) 25
People v. Hobley, 696 N.E.2d 313 (111. 1998) 19
People v. Honeycutt, 570 P.2d 1050 (Cal. 1977) 21,22
People v. Irizarry, 83 N.Y.2d 557 (1994) 26
People v. Kozlowski, 11 N.Y.3d 223 (2008) 1
People v. Roberson, Dkt No.1-11-0194, 2012 WL 6955439
(111. App. Nov. 7, 2012) 15
People v. Robertson, 217 A.D.2d 989 (4th Dep’t 1995) 13
People v. Rodriguez, 100 N.Y.2d 30 (2003) 27
People v. Sanders, 120 Misc. 2d 1087 (Sup. Ct. N.Y. Cnty. 1983) 25
People v. Santana, 58 Misc. 3d 581 (Sup. Ct. Bronx Cnty. 2017) 21
People v. Spraigon, 288 A.D.2d 498 (2d Dep’t 2001) 8

People v. Townsend, 111 A.D.2d 636 (1st Dep’t 1985) 17

People v. Ventura, 66 N.Y.2d 693 (1985) 17
People v. Wadle, 77 P.3d 764 (Colo. Ct. App. 2003) 15
People v. Wilson, 93 A.D.3d 483 (1st Dep’t 2012) 26
Remmer v. United States, 347 U.S. 227 (1954) 18,21
Sampson v. United States, 724 F.3d 150 (1st Cir. 2013) 7
Sengupta v. Saint Bamabus Medical Center, Dkt No. A-2334-15T4,
2018 WL 4373097 (N.J. Super. Sept. 14, 2018) 6

Smith v. Phillips, 455 U.S. 209 (1983) 8

State v. Cecil, 655 S.E.2d 517 (W. Va. 2007) 25

State v. Furutani, 873 P.2d 51 (Haw. 1994) 15

Strickland v. Washington, 466 U.S. 668 (1984) 6

iii
United States v. Colombo, 869 F.2d 149 (2d Cir. 1989) 7, 23, 24
United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979) 26
United States v. Farhane, 634 F.3d 127 (2d Cir. 1994) 19
United States v. Fell, Dkt No. 2:01-cr-12, 2014 WL 3697810
(D.Vt. July 24, 2014) 19, 20
United States v. Morrison, 984 F. Supp.2d 125 (E.D.N.Y. 2013) 21
United States v. Parse, 789 F.3d 83 (2d Cir. 2015) 27
Warger v. Shauers, _ U.S. 135 S. Ct. 521 (2014) 6
Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala. 1984).... 16
STATUTES
CPL § 270.20(1)(b) 8
CPL § 270.35 11, 12

CPL § 330.30(1) 17
CPL § 330.30(2) 8, 12, 17, 19
N.Y. Civ. Rights Law Art. 2 § 12 2,5

RULES
Rule 500.23(a)(4)(iii) 2
CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. VI, 2,5

iv
 INTEREST OF AMICUS CURIAE
The New York Council of Defense Lawyers (“NYCDL”) respectfully

submits this brief as amicus curiae in support of Defendant-Respondent, Robert

Neulander. As discussed below, the NYCDL believes that the Appellate Division,

Fourth Department, properly granted Mr. Neulander a new trial based on the

deplorable dishonesty of Juror 12 during Mr. Neulander’s trial, which dishonesty

was confirmed by Juror 12’s post-trial perjury and her attempts to destroy physical

evidence of her misconduct. Any other result would undermine the fundamental

right to an impartial jury guaranteed by the federal constitution and state law.

The NYCDL is a not-for-profit association of over 300 lawyers whose

practice focuses on the defense of criminal cases in New York’s state and federal

courts. The NYCDL’s membership includes many former state and federal

prosecutors; indeed, the NYCDL’s President is a former Assistant District

Attorney in Kings County. The NYCDL’s mission includes protecting individual

rights guaranteed by the Constitution, enhancing the quality of defense

representation, and promoting the proper administration of criminal justice. The

NYCDL has often submitted amicus briefs in cases of significant interest to the

criminal defense bar, including to this Court in People v. Kozlowski, 11 N.Y.3d

223 (2008), and on occasion has been invited by the courts to participate in

briefing and oral argument.

 The NYCDL offers the Court the collective experience of practitioners who

regularly handle some of the most complex criminal cases in this state’s courts,

and respectfully submits that its members’ perspective will be of assistance to the

Court. In addition, this brief goes beyond the parties’ focus on New York law, and

demonstrates that the ruling of the Fourth Department is amply supported by case

law from other jurisdictions around the country, a perspective that the parties may

not have had the opportunity to present and that could otherwise escape the Court’s

consideration.1

SUMMARY OF ARGUMENT

One of the most fundamental rights protected by the Sixth Amendment and

N.Y. Civ. Rights Law Art. 2 § 12 is, in a criminal case, the right to trial by an

impartial jury. The Fourth Department recognized the importance of this right and

the necessity of a new trial, regardless of the alleged strength of the evidence,

where a juror’s manifest dishonesty, misconduct, and violation of the trial court’s

instructions raises substantial questions about her ability to have served as an

impartial juror. This appeal is of particular concern to the NYCDL because the

approach taken by the trial court and endorsed by the two dissenting justices of the

1
Pursuant to Rule 500.23(a)(4)(iii) of this Court’s Rules of Practice, amicus states (a) that no
party’s counsel contributed content to this brief, nor participated in the preparation of the brief in
any other manner; (b) no party or party’s counsel contributed money to fund preparation or
submission of this brief; and (c) no person or entity, other than amicus or its counsel, contributed
money to fund preparation or submission of the brief.

2
Fourth Department would uphold a conviction despite a juror’s blatant dishonesty

during the trial, compounded by her post-trial peijury and her attempts to obstruct

justice by destroying evidence. The extent of this misconduct at trial and afterward

is so great, and the impropriety of her having served as a juror in this case is so

clear, that a new trial is required to protect the integrity of our system of justice.

It has long been established that honesty is a vital characteristic of an

impartial juror, but Juror 12 in this case was anything but honest. Instead, her

dishonesty began during the trial, when she disobeyed the court’s instructions by

communicating via text with various third parties about the case, and by, at least

once (but likely more often) performing prohibited internet searches. She then

compounded her misconduct by lying to the court in chambers during the trial,

when honest answers would have led immediately to her removal as a juror, and by

subsequently perjuring herself in a post-trial affidavit, which greatly downplayed

her misconduct and denied having violated the court’s instructions. In addition,

she took deliberate steps to obstruct justice and cover up her dishonesty by

selectively deleting from her cell phone numerous inculpatory texts, as well as her

entire internet browsing history, and resisted producing her cell phone, which

ultimately revealed the level of her misconduct.

The NYCDL respectfully submits that when a juror is this dishonest and

obstructs justice through this degree of cumulative deceitful misconduct, she

3
should be deemed as a matter of law unfit to have served, and a new trial is clearly

required under the federal constitution and state law. As the Fourth Department

correctly held:

[E]very defendant has a right to be tried by jurors who follow the

court’s instructions, do not lie in sworn affidavits about their
misconduct during the trial, and do not make substantial efforts to
conceal and erase their misconduct when the court conducts an
inquiry with respect thereto. These rights are substantial and
fundamental to the fair and impartial administration of a criminal trial.

R.2E. (quotations omitted).

Evidence of a defendant’s guilt is irrelevant to whether the defendant has

received a fair trial by an impartial jury. Consequently, the People’s lengthy

discussion of the evidence is misguided, when that evidence is immaterial to the

fundamental question whether Juror 12’s misconduct deprived Mr. Neulander of a

fair trial.

At a minimum, even if a juror who communicates with third parties and

conducts at least one prohibited internet search, and then lies about having done so,

is not as a matter of law unfit to have served, this kind of conduct must give rise to

a strong presumption that the juror was not qualified. And here, where the only

ground on which the People can attempt to rebut this presumption is the juror’s

own testimony, the People’s argument must fail, since the testimony of a juror who

has disobeyed the court’s instructions, lied about doing so, and tampered with

4
evidence, is so demonstrably lacking in credibility that the court cannot properly

accept it.

ARGUMENT
I. A DEFENDANT IS DEPRIVED OF THE RIGHT TO TRIAL BY
AN IMPARTIAL JURY WHEN A JUROR ENGAGES IN
CUMULATIVE MISCONDUCT THAT VIOLATES THE
COURT’S INSTRUCTIONS, AND THEN LIES UNDER OATH
ABOUT HAVING DONE SO - AND A NEW TRIAL IS
REQUIRED AS A MATTER OF LAW

The Sixth Amendment guarantees a criminal defendant “a right to an

impartial jury,” U.S. Const. Amend. VI., as does N.Y. Civ. Rights Law Art. 2 § 12.

Indeed, the Supreme Court has “always held that the atmosphere essential to the

preservation of a fair trial - the most fundamental of all freedoms - must be

maintained at all costs,” Estes v. Texas, 381 U.S. 532, 540 (1965) (emphasis

added), and that the “right to an impartial adjudicator” is so basic to a fair trial that

its infraction “can never be treated as harmless error,” Gray v. Mississippi, 481

U.S. 648, 668(1987).

This Court has similarly recognized that an impartial jury is an essential

element of a fair trial: “The constitutional guarantee of due process of law

provides criminal defendants with ‘the fundamental right to a fair trial,’” which

5
includes ‘“an impartial jury.’” People v. Henriquez, 3 N.Y.3d 210, 214 (2004)

(quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)).2

In this case, Mr. Neulander was deprived of his right to a fair trial by an

impartial jury through Juror 12’s cumulative acts of misconduct, as discussed

below.

A. A Juror’s Honesty is the Most Relevant Barometer of

Whether She Was an Impartial Juror

The courts have long recognized that lowest jurors are a cornerstone of an

impartial jury, and hence of a fair trial. In McDonough Power Equip, v.

Greenwood, 464 U.S. 548 (1984), one of the Supreme Court’s preeminent cases

regarding juror misconduct, the Court stated emphatically that “[t]he necessity of

truthful answers by prospective jurors if [the voir dire] process is to serve its

purpose is obvious.” Id. at 554 (emphasis added). Or as Justice Blackmun stated

in concurrence, “the honesty or dishonesty of a juror’s response [to a voir dire

question] is the best indicator of whether the juror in fact was impartial.” 464 U.S.

at 556 (emphasis added).3 See also Burton v. Johnson, 948 F.2d 1150, 1159 (10th

2 See also Sengupta v. Saint Barnabus Medical Center, DktNo. A-2334-15T4, 2018 WL
4373097, at *4 (N.J. Super. Sept. 14, 2018) (‘“on elementary principles [a jury’s] verdict must be
. . . entirely free of the taint of extraneous considerations and principles’”) (quoting Panko v.
Flintkote Co., 7 N.J. 55, 61, 80 A.2d 302, 305 (1951)).
3 While McDonough was a civil case, the same constitutional principles apply, a fortiori, in a
criminal case. See Warger v. Shauers, _ U.S. _, 135 S. Ct. 521, 528 (2014) (“The Constitution
guarantees both criminal and civil litigants a right to an impartial jury.”). Indeed, the need for

6
Cir. 1991) (dishonesty on part of a juror was “of itself . . . evidence of bias”);

Sampson v. United States , 724 F.3d 150, 167 (1st Cir. 2013) (“juror dishonesty . . .

can be a powerful indicator of bias”).

Thus, jurors are required to give truthful answers during voir dire, when they

are questioned, inter alia, about their willingness to obey the court’s instructions

and to weigh the evidence without outside influences. In United States v.

Colombo, 869 F.2d 149 (2d Cir. 1989), a juror failed to acknowledge during voir

dire that her brother-in-law was an attorney for the government. Id. at 151. The

court held that a new trial was required if this was true, because the juror’s failure

to acknowledge this fact was “quite inconsistent with an expectation that a

prospective juror will give truthful answers concerning her ability to weigh the

evidence fairly and obey the instructions of the court.” Id. at 151-52. It follows

that, after voir dire, a juror is similarly required to give truthful answers about

whether she did obey the court’s instructions. In this case, by blatantly

disregarding the court’s instructions, and then lying during trial about having done

so, Juror 12 engaged in conduct completely inconsistent with the conduct expected

of an honest, impartial juror.4

complete impartiality is of even greater importance in a criminal case, where the Sixth
Amendment comes into play.
4
The requirement of honesty continues throughout the trial. For example, when jurors find it
difficult to reach a verdict, they are properly instructed “to try to agree, but not to relinquish their

7
 The fact that voir dire is prospective - inquiring if a juror “has a state of

mind that is likely to preclude him from rendering an impartial verdict based upon

the evidence,” CPL § 270.20(1)(b) - while the examination of Juror 12’s

misconduct in this case was retrospective - determining if she had engaged in

“improper conduct . . . which may have affected a substantial right of the

defendant,” CPL § 330.30(2) - does not alter the required result. In either case, a

juror’s honesty or dishonesty is the most relevant barometer of whether she will be

- or here, whether she was - an impartial juror.

Put another way, a post-verdict hearing regarding a juror’s conduct during

trial, to determine if the juror was subject to outside influences, serves a similar

purpose to voir dire, i.e., to ensure that there was “an impartial trier of fact - ‘a

jury capable and willing to decide the case solely on the evidence before it.’”

McDonough, 464 U.S. at 554 (quoting Smith v. Phillips, 455 U.S. 209, 217

(1983)). In this case, Juror 12’s multiple texts with third parties during the trial,

and her one confirmed internet search of a news website (and likely more),

demonstrated that she palpably was not “capable and willing” to decide Mr.

Neulander’s case solely on the evidence before her.

honest convictions.” People v. Spragion, 288 A.D.2d 498, 498 (2d Dep’t 2001) (emphasis
added).

8
 The cumulative effect of Juror 12’s multiple dishonest acts demonstrates her

unfitness to have served. We note that the Fourth Department majority was careful

to hold that the facts about Juror 12’s misconduct “were not controverted at the

[post-trial] hearing.” R.2E. Juror 12’s most significant dishonest acts include: her

receipt of her father’s admonition via text to “[m]ake sure he’s guilty!,” R.2C, to

which Juror 12 did not demur; her apparent acceptance and adoption of a friend’s

texted description of Mr. Neulander as “the scary man,” R.21; and a text

conversation with a friend who strongly suggested that Jenna Neulander, a crucial

defense witness, was herself guilty, to which Juror 12’s only response was to send

an enigmatic “see no evil, speak no evil, hear no evil” emoticon. R.23.

Thus, texts that Juror 12 received during trial, inter alia, (a) urged that Mr.

Neulander be convicted; (b) prejudicially maligned Mr. Neulander as “scary”; and

(c) took aim at a key defense witness. In addition, cookies later retrieved from

Juror 12’s cell phone demonstrated that, during the trial, she accessed the news

website Syracuse.com - which was covering the trial extensively - on at least one

occasion. R.23-24.

Juror 12 then lied to the court during trial when she denied in chambers that

she had communicated with third parties or accessed the internet. As it later

emerged, Juror 12 had erased “scores of messages or parts thereof,” R.2D, giving

rise to an inescapable inference that she knew the texts were prejudicial. She also

9
deleted the whole history of her web browsing during the trial, which gives rise to

a strong implication that she engaged in more than one improper internet search

related to the case.

Despite these numerous transgressions during the trial, Juror 12 swore

unequivocally, and falsely, in a post-trial affidavit that: “At all times throughout

the trial and throughout the deliberative process I followed Judge Miller’s

instructions.” R.2D. Nothing could have been further from the truth. As the

Fourth Department held, Juror 12’s sworn statement was “patently untruthful.” Id.

Juror 12 again lied when she testified at a post-trial hearing that she had probably

been reading an internet article about cheerleading on the one day when it was

confirmed that she had accessed the website of Syracuse.com; Syracuse.com did

not post articles about cheerleading that day. R.24 & n.6.

The precepts of the McDonough decision apply with full force in this case -

that honesty is the best indicator that a juror is impartial, and dishonesty is the best

indicator that a juror is biased - but the facts here are in direct contrast to

McDonough, and require an opposite result. In McDonough, the Court held that a

new trial was not required when it emerged after a civil trial that a juror might have

given a good faith but inaccurate response during voir dire. In these

circumstances, the Court held that: “To invalidate the result of a three-week trial

because of a juror’s mistaken, though honest response to a question, is to insist on

10
something closer to perfection than our judicial system can be expected to give.”

464 U.S. at 555 (emphasis added). In this case, in contrast, Juror 12’s multiple acts

of deliberate dishonesty sabotaged the kind of criminal trial that our judicial system

is expected to provide.

A juror who disobeys the court’s instructions by communicating successive

times about the case with non-jurors, and performs at least one prohibited internet

search during trial (and likely more), and who baldly lies to the court in chambers

about those extrajudicial contacts, is plainly unfit to have served In addition, here,

Juror 12 compounded her improper conduct during the trial with her perjurious

post-trial affidavit and her attempts to obstruct justice by selectively deleting texts,

deleting her entire browsing history, and resisting the trial court’s issuance of a

subpoena duces tecum for her cell phone. Her post-trial wrongdoing only

confirmed her fundamental dishonesty, which, as McDonough held, is the best

indicator that she was not impartial and should not have served.

B. A New Trial Is Required as a Matter of Law When a Juror is

as Thoroughly Mendacious as Juror 12

When a juror lies about a material issue during voir dire, or engages in

prejudicial extrajudicial communications about the case during a criminal trial, and

then lies about them, this level of dishonesty demonstrates that the juror is, as a

matter of law, unfit to serve. See, e.g., CPL § 270.35 ( requiring dismissal of a

juror who “has engaged in misconduct of a substantial nature”). See also Dyer v.

11
Calderon, 151 F.3d 970, 983 (9th Cir. 1998) {en banc) (“A perjured juror is as

incompatible with our truth-seeking process as a judge who accepts bribes.”)

Thus, a harmless error analysis never applies when a juror is not impartial. Gomez

v. United States, 490 U.S. 858, 876 (1989) (one of the “basic fair rights that can

never be treated as harmless is a defendant’s right to an impartial adjudicator”).

As the Fourth Department determined, there is no question that, had Juror

12’s “misconduct been discovered during voir dire or during the trial, rather than

after the verdict, the weight of authority under CPL 270.35 would have compelled

her discharge.” R.2D. The Fourth Department also recognized that it was no fault

of Mr. Neulander that Juror 12 was able to conceal her misdeeds until after the

trial. R.2E.

There must come a point at which a juror’s cumulative misconduct and

dishonesty demonstrate as a matter of law that the juror engaged in improper

conduct that affected a substantial right of a defendant, CPL 330.30(2), and hence

was not fit to have served, without the need to examine actual or implied prejudice.

See Dyer v. Calderon, 151 F.3d at 983 (“a juror who tells major lies creates a

serious conundrum for the fact-finding process. How can someone who herself

does not comply with the duty to tell the truth stand in judgment of other people's

veracity?”). We respectfully submit that this is a case where Juror 12’s unfitness to

have served is irrefutable.

12
 On similar facts, the courts of this state have repeatedly held that a new trial

is required, without consideration of harmless error or the alleged lack of

prejudice. For example, in People v. Havner, 19 A.D.3d 508 (2d Dep’t 2005), the

court affirmed the trial court’s dismissal of a juror who, in words that apply equally

to Juror 12, had “disregarded its instructions by discussing the case outside the

courtroom and then lied when questioned about the substance of the discussion.”

19 A.D.3d at 508. The court did not examine any purported rebuttal of the juror’s

unfitness. See also People v. Robertson, 111 A.D.2d 989, 990 (4th Dep’t 1995)

(juror properly discharged “because he engaged in misconduct of a substantial

nature by ignoring the court’s admonition not to discuss the case,” without

consideration of any possible rebuttal to juror’s unfitness to serve); People v. Fox,

112 A.D.2d 218, 219-20 (1st Dep’t 1991) (affirming dismissal of juror who

discussed case with friend and then claimed he had not acted improperly, without

consideration of any possible rebuttal of need to disqualify the juror).

There is no getting around the fact that Juror 12 failed to follow the court’s

instructions, by communicating with third parties about the case and conducting at

least one internet search during trial; lying to the court in chambers during trial by

denying her misconduct; perjuring herself in her sworn affidavit; and going to

great lengths to try to cover up evidence of her wrongdoing. Yet, despite the fact

that, by the post-trial hearing, Juror 12 had thereby proven herself thoroughly

13
dishonest, the trial court bent over backwards to avoid a new trial, improperly

crediting Juror 12’s testimony whenever it was not inescapably a blatant lie, and

profoundly understating Juror 12’s misconduct. On the latter point, for example,

the trial court stated only that Juror 12’s perjurious affidavit “did not completely

address the extent of [Juror 12’s] communications with third parties regarding this

case.” R.24. But in fact, Juror 12’s affidavit failed to report any of the prejudicial

communications with third parties discussed herein. The kinds of texts that Juror

12 received (and then hid), which were plainly hostile to the defendant and an

important defense witness, cannot have failed, whether immediately or

subconsciously, to have affected Juror 12’s ability to be impartial.

The trial court acknowledged that it was “worthy of note that Juror 12

deleted . . . messages, which demonstrated that she understood the prohibition on

speaking about this case with third parties,” R.2D, and that Juror 12 “clearly

displayed a consciousness that she had engaged in misconduct, in violation of the

Court’s admonitions,” R.24. But the court inexplicably failed to act on these

findings. It is astounding that the trial court - despite recognizing the multiple

times that Juror 12 had consciously disobeyed instructions, lied, peijured herself,

and tried to destroy evidence - repeatedly credited Juror 12’s testimony at the post¬

trial hearing, including her self-serving statements that she had decided the case

only on the evidence and the court’s instructions. R.13, 25. It is also difficult to

14
comprehend how, in the face of the uncontroverted evidence of Juror 12’s texts

with third parties about their opinions of the defendant and a key defense witness,

the trial court held that “there was no showing that Juror 12 received external

information pertinent to the case from an external source.” R.31.

Thus, despite recognizing Juror 12’s mendacity and attempts to obstruct

justice, the trial court refused to grant a new trial, basing its decision on Juror 12’s

testimony at the post-trial hearing, during which Juror 12 greatly downplayed her

misconduct. R. 20, 25, 36. By the time of the hearing, however, Juror 12 had

demonstrated her elemental dishonesty, and the trial court improperly looked the

other way when it credited her testimony, instead of granting a new trial as a

matter of law.

Numerous courts have granted new trials as a matter of law for various kinds

of juror misconduct. See People v. Roberson, Dkt No.1-11-0194, 2012 WL

6955439, at *3 (111. App. Nov. 7, 2012) (juror who slept through significant part of

presentation of evidence and closing arguments was unqualified as a matter of

law); People v. Wadle, 77 P.3d 764, 771 (Colo. Ct. App. 2003) (new trial required

as a matter of law if there is a “reasonable possibility that the introduction of

extraneous information” to jury affected the verdict); Ex parte Arthur, 835 So.2d

981, 85-86 (Ala. 2002) (extraneous information pertaining to a principal issue at

trial was prejudicial as a matter of law); State v. Furutani, 873 P.2d 51, 58, 63

15
(Haw. 1994) (when jurors failed to confirm during voir dire that they would not

hold the defendant’s failure to testify against him, and then discussed that failure

during deliberations, as a matter of law “possible misconduct at voir dire and the

misconduct during deliberations deprived [the defendant] of a trial by twelve fair

and impartial jurors”); Whitten v. Allstate Ins. Co., 447 So.2d 655, 658 (Ala. 1984)

(“Juror misconduct will justify a new trial when . . . from . . . extraneous facts

prejudice may be presumed as a matter of law”).

As in all these cases, a new trial is required here as a matter of law.

C. The People’s Recitation of Alleged Evidence of Guilt is

Irrelevant to the Question Whether the Juror Was Unfit to
Have Served

The People argue that the evidence of guilt was so compelling that the Court

should uphold the conviction notwithstanding the blatant lack of qualification of

__
Juror 12. This case was actually a close case, however, and the evidence is not

nearly as compelling as the People contend. More important, as this Court has

recognized, if the fundamental right to a fair trial is undermined - as it is when a

juror engages in significant misconduct and thereby deprives the defendant of the

right to an impartial jury - it does not matter whether the errors at trial contributed

to the defendant’s conviction. Proof of the defendant’s alleged guilt is irrelevant:

Not only the individual defendant but the public at large is entitled to
assurance that there shall be full observance and enforcement of the
cardinal right of a defendant to a fair trial So, if in any instance,
an appellate court concludes that there has been . . . such other wrong

16
 as to have operated to deny any individual defendant his fundamental
right to a fair trial, the reviewing court must reverse the conviction
and grant a new trial, quite without regard to any evaluation as to
whether the errors contributed to the defendant's conviction. The right
to a fair trial is self-standing and proof of guilt, however
overwhelming, can never be permitted to negate this right.
People v. Crimmins, 36 N.Y.2d 230, 237-38 (1975) (emphases added); see also

People v. Estella, 68 A.D.3d 1155, 1158 (3d Dep’t 2009) (same); People v.

Townsend, 111 A.D.2d 636, 640 (1st Dep’t 1985) (same).5

Thus, where a defendant has been deprived of a fair trial through juror

misconduct, evidence of the defendant’s guilt is irrelevant. Here, the People try to

escape the necessary result of Juror 12’s cumulative misdeeds - a new trial - by

arguing that her misconduct “is significantly outweighed by substantial proof of

guilt presented at trial.” People’s Br. at 18. Indeed, the People devote 13 pages of

their brief to a discussion of the evidence at trial. Id. at 44-57. But the People are

weighing apples against oranges; as demonstrated in Crimmins, proof of guilt can

do nothing to “outweigh” a juror’s flagrant misconduct that deprives a defendant of

his right to a fair trial.

In People v. Giarletta, 72 A.D.3d 838 (2d Dep’t 2010), the court ordered a

new trial when a juror disregarded the court’s instructions in ways very like Juror

12, “by communicating with her sister via text message and cell phone during the
5
Similarly, in People v. Ventura, 66 N.Y.2d 693, 695 (1985), this Court clarified that, in a
previous case, “In no respect did we imply that a CPL 330.30(1) motion must be denied ... if
evidence of defendant’s guilt is legally sufficient.” The sufficiency of evidence of guilt must be
disregarded in connection with a motion under CPL § 330.30(2).

17
trial about particular information relating to the defendant’s guilt or innocence, and

sharing those communications with other jurors.” 72 A.D.2d at 839. The court

held that this misconduct “created a significant risk that a substantial right of the

defendant was prejudiced,” and therefore ordered a new trial without discussing

evidence of the defendant’s guilt. Id. Similarly, Juror 12’s misconduct created a

significant risk that Mr. Neulander’s right to a fair trial was prejudiced, and the

Fourth Department properly granted a new trial without weighing the evidence

against Mr. Neulander.

II. EVEN IF THE PEOPLE’S ARGUMENT THAT THERE WAS NO

PREJUDICE IS COGNIZABLE, THE JUROR’S CUMULATIVE
MISCONDUCT HERE CREATES A PRESUMPTION OF LACK OF
IMPARTIALITY, AND THE PEOPLE CANNOT REBUT THIS
PRESUMPTION THROUGH THAT JUROR’S OWN TAINTED
TESTIMONY

A. Cumulative Misconduct by a Juror Gives Rise to a

Presumption of Bias

Even if a new trial were not required as a matter of law as the result of Juror

12’s cumulative misconduct, any substantive communications between a juror and

a third-party during trial or deliberations are presumptively harmful. Well over a

century ago, the Supreme Court recognized that “[pjrivate communications,

possibly prejudicial, between jurors and third persons ... are absolutely forbidden,

and invalidate the verdict, at least until their harmlessness is made to appear.”

Mattox v. United States, 146 U.S. 140, 150(1892). See also Remmer v. United

18
States, 347 U.S. 227, 230 (1954) (private communications with a juror about the

case during trial are presumptively prejudicial); People v. Hobley, 696 N.E.2d 313,

341 (111. 1998) (“[T]he law is well established that communications about the case

between jurors and third parties are presumptively prejudicial. . . [and] the verdict

may stand only if it is ‘obvious’ that no prejudice resulted from the

communications”) (citations omitted); United States v. Fell, DktNo. 2:01-cr-12,

2014 WL 3697810, at *26 (D. Vt. July 24, 2014) (“It is undisputed that ‘the law

presumes prejudice from a jury’s exposure to extra-record information’”) (quoting

United States v. Farhane, 634 F.3d 127, 168 (2d Cir. 1994)). See also Dietz v.

Bouldin,_ U.S. _, 136 S. Ct. 1885, 1895 (2016) (“Prejudice can come [to a

juror] through a whisper or a byte.”)

Here, Juror 12’s communications during trial with her father and friends, and

her internet access, give rise to a presumption of bias. Juror 12’s lies in chambers,

also during trial, likewise require an implication of bias. In Dyer v. Calderon, a

juror lied about a number of matters during voir dire; and the Ninth Circuit held

that her “lies give rise to an inference of implied bias on her part.” 151 F.3d at

979. The same should hold true in this case. Moreover, Juror 12’s implied bias

was confirmed, inter alia, when she provided innocuous text messages as

attachments to her affidavit in opposition to Mr. Neulander’s motion pursuant to

CPL § 330.30(2). She clearly knew that the text messages she did not then provide

19
would evidence her lack of impartiality and show her to have been grossly

unqualified as a juror. Consequently, she was willing to state under oath the base

lie that she had always followed the trial court’s instructions. R.2D.

Thus, Juror 12’s misconduct during trial - communications with third

parties, an internet search, and lies - was presumptively prejudicial. Another case

demonstrating that bias must be presumed on the facts here is Green v. White, 232

F.3d 671 (9th Cir. 2000), in which a juror had lied during voir dire about whether

he had a past conviction. The court granted a habeas petition because the juror’s

“pattern of lies, inappropriate behavior, and attempts to cover up his behavior

introduced ‘destructive uncertainties’ into the fact-finding process,” which required

that bias be presumed. Id. at 676 (quoting Dyer v. Calderon, 151 F.3d at 983).

The same language applies equally to Juror 12’s lies, inappropriate behavior, and

attempts to cover up that behavior. Bias must be presumed where a juror, like

Juror 12, undertakes prohibited extrajudicial communications, and lies to cover

them up, with the concomitant “destructive uncertainties” about the trial to which

those lies give rise.

B. The Presumption of Juror Bias That Arises From a Juror’s

Dishonesty Cannot be Rebutted by the Juror’s Own Tainted
Testimony

Where there is a presumption of juror bias, “the government is obligated to

‘prov[e] the negative,”’ United States v. Fell, 2014 WL 3697810, at *28, i.e., “the

20
burden rests heavily upon the Government to establish ... that [third party] contact

with the juror was harmless to the defendant,” United States v. Morrison , 984 F.

Supp.2d 125,133 (E.D.N.Y. 2013). As the Illinois Supreme Court has held:

[A]ny communication with a juror during trial about a matter pending

before the jury is deemed presumptively prejudicial to the defendant’s
right to a fair trial. Although this presumption of prejudice is not
conclusive, a burden rests on the State to establish that such contact
with the jurors was harmless to the defendant.
People v. Harris, 526 N.E.2d 335, 342 (111. 1988) (citing Remmer v. United States,

347 U.S. 227, 229 (1954)).

The People’s burden is a heavy one, since prejudicial extrajudicial

communications with a juror cannot be undone after the fact, and their possible

effect on a juror cannot accurately be determined. See, e.g., Arkwright v.

Steinbugler, 283 A.D. 397, 399 (2d Dep’t 1954) (“jurors are but individuals, and

may be subject to influences of which they themselves may often be unaware.”);

People v. Santana, 58 Misc. 3d 581, 589 (Sup. Ct. Bronx Cnty. 2017)

(extrajudicial influences may “have a subtle or unconscious impact on the jurors”).

For example, in People v. Honeycutt, 570 P.2d 1050 (Cal. 1977), a juror

asked an attorney during the trial whether involuntary manslaughter was a

misdemeanor or a felony. Because the attorney incorrectly advised that it could be

a misdemeanor, the juror might have believed that, if convicted, the defendant

would serve time in county jail rather than state prison. The California Supreme

21
Court held that “[i]t is well settled that a presumption of prejudice arises from any

juror misconduct,” 570 P.2d at 1052, and that the government could not rebut this

presumption, because it was based on the juror’s possible subjective beliefs and/or

potential subjective influence on other jurors. 570 P.2d at 1053-54.

Similarly, in this case, the clock cannot be turned back on the admonition by

Juror 12’s father to “Make sure he’s guilty”;6 on Juror 12’s acquiescent response to

a text terming Mr. Neulander “the scary man”; and Juror 12’s receipt of a text

expressing shock that Jenna Neulander, a critical defense witness, was not a

suspect herself. There is no way for the People to rebut the presumption of

prejudice arising from these kinds of improper communications, which cannot be

held “ambiguous, innocuous and irrelevant,” as the People allege. People’s Br. at

21. This is particularly true since Juror 12 demonstrated her understanding that she

had engaged in serious misconduct when she tried selectively to delete these texts,

and resisted producing her cell phone.

In an analogous case, People v. Fox, 172 A.D.2d 218, a juror discussed the

case with a friend, ignoring the “basic admonition not to talk about the case with

6
The People posit that the statement, “Make sure he’s guilty!,” could possibly be read as an
instruction to be sure of guilt, rather than an imprecation to convict. People’s Br. at 27-28. It is
highly unlikely, however, that Juror 12’s father would have texted her a message concerning the
sophisticated concept of reasonable doubt. Juror 12 gave no explanation of the statement other
than that it “was just my dad being [my] dad,” A-20, whatever that means. Moreover, Juror 12’s
testimony that she forgot about the text before it was later extracted from her phone can be
ignored. The very fact that she saw fit to delete this text clearly demonstrated her consciousness
of its inappropriate nature, as even the trial court seemed to recognize. A.24.

22
anyone,” and later commented that he “believed he was not acting improperly,”

which served to “establish that the juror did not feel bound by the judge’s

authority” Id. at 219-20. The court held that a new trial was required. In this

case, it has been established just as clearly that Juror 12 did not feel bound by the

judge’s authority when she repeatedly texted about the case, searched the internet

during trial, and then lied to the court about having done so.

In United States v. Colombo, 869 F.2d 149, the government argued that a

juror’s dissembling during voir dire, concealing that her brother-in-law was a

government lawyer, was harmless, since that fact would not have been cause for

dismissing the juror. The court disagreed, stating: “The point is not that her

relationship with her brother-in-law tainted the proceedings, but that her

willingness to lie about it exhibited an interest strongly suggesting partiality.” Id.

at 152 (emphasis added). The court explained that the “deliberateness” of the

juror’s failure to reveal her brother-in-law’s status - i.e. her calculated

untruthfulness - distinguished the case from others where jurors have given

mistaken, although honest, answers during voir dire. Id. The court held that

“[ijnquiry into the juror’s state of mind by way of partial denial, explanation or

protestations of impartiality would not reveal evidence that was under these

circumstances either trustworthy or sufficient to offset the deliberate violation of

the oath.” Id.

23
 For the same reasons, Juror 12’s protestations that she decided the case only

on the court’s instructions and the evidence must be disregarded as untrustworthy

and insufficient to offset the presumption of bias that arises from her deliberate

violations of her oath as a juror. Although this case involves post-trial revelation of

Juror 12’s misconduct, it is akin to Colombo in that it involves a juror who

demonstrated a “willingness to lie” during trial, and whose “deliberateness” in so

lying must be deemed inconsistent with a juror who was impartial. Indeed, as in

this case, the Second Circuit in Colombo was acting after the defendant had been

convicted, and held that, because of the juror’s deliberate misconduct, the

presumed bias could not be rebutted, and a new trial was thus required.

The People claim baldly that “[n]one of the information [Juror 12] received

‘affected [her] thinking,”’ People’s Br. at 9 (first bracket added, second bracket in

original), but their only support for this assertion about Juror 12’s subjective state

of mind is Juror 12’s own unreliable testimony. Juror 12’s conduct in other

respects demonstrated that she was a liar, and her testimony must therefore be

taken with a large grain of salt. The People cannot carry their burden of negating

the likely prejudicial effect of the texts that Juror 12 received, and her internet

search, by citing Juror 12’s self-serving testimony.

The People also attempt to dissect Juror 12’s pattern of misconduct into

separate, isolated acts, each of which they then argue was harmless. But, as

24
discussed above, it is the aggregation of Juror 12’s cumulative transgressions that

demonstrates that she was unfit to have served. See, e.g., People v. Sanders , 120

Misc. 2d 1087, 1091 (Sup. Ct. N.Y. Cnty. 1983) (cumulative effect of four acts of

juror misconduct required a new trial, despite People’s argument that examining

the acts separately led to the conclusion that defendant was not prejudiced); State

v. Cecil, 655 S.E.2d 517, 527 (W. Va. 2007) (cumulative effect of errors by juror

who advised others that children’s testimony should be given greater weight than

the defendant’s, and juror who conducted internet searches related to the case,

“made it impossible for the appellant to receive a fair trial”).

It is unclear if any other jurors were privy to Juror 12’s improper texts or

internet search, see, e.g., R.19, but that does not mitigate Juror 12’s misconduct; a

new trial is required even if only one juror is likely to have been influenced by

extrajudicial information. Because “[t]he Sixth Amendment guarantees criminal

defendants a verdict by impartial, indifferent jurors[, t]he bias or prejudice of even

a single juror would violate [a defendant’sj right to a fair trial.” Dyer v.

Calderon, 151 F.3d at 973 (emphasis added). See also People v. Hensley, 330 P.3d

296, 320 (Cal. 2014) (demonstrable bias of single juror was sufficient to require

new trial); Chambers v. State, 739 S.E.2d 513, 519-20 (Ga. Ct. App. 2013) (even if

trial court were correct that eleven jurors had not relied on extra-judicial

information from a twelfth juror, nothing in the record allowed such a finding in

25
connection with the twelfth juror herself); United States v. Eubanks, 591 F.2d 513,

517 (9th Cir. 1979) (“Even if ‘only one juror is unduly biased or prejudiced,’ the

defendant is denied his constitutional right to an impartial jury”) (citation omitted).

Finally, the cases cited by the dissenting Justices of the Fourth Department

simply do not involve situations comparable to this. In People v. Clark, 81 N.Y.2d

913, 914 (1993), for example, the extrajudicial contact was between a juror and a

defense alibi witness, suggesting that “the defendant was, if anything, aided by

whatever misconduct took place,” and the particular juror was, at least for a while,

the sole holdout for the defendant. In contrast, Mr. Neulander was certainly not

aided by a message urging Juror 12 to convict him, nor by a message

characterizing him as “the scary person,” i.e., the perpetrator of a well-publicized

murder. People v. Irizarry, 83 N.Y.2d 557, 561-62 (1994), was a dual jury case,

and this Court held that a jury’s awareness that a different person was convicted of

participating in the same alleged crime as the defendant “is not deemed inherently

prejudicial,” a perspective that has nothing at all to do with the facts of this case.

In People v. Wilson, 93 A.D.3d 483, 485 (1st Dep’t 2012), a juror posted on

Facebook that she was serving on a jury, but did not discuss the case in any way.

The juror testified unequivocally that she was not affected by responsive postings,

and the court held that there was “no basis for disturbing [the trial court]’s

credibility determinations.” Here, in contrast, Juror 12 lost all credibility after she

26
demonstrated her willingness to lie to the court in chambers and under oath.

Finally, in People v. Rodriguez, 100 N.Y.2d 30, 35 (2003), a juror concealed his

acquaintance with a prosecutor who was not involved in the case, and with whom

the juror had been out of touch for 10 years until they had lunch together and

“casually discussed the events of the intervening 10 years”; the juror’s failure to

disclose this desultory friendship with someone uninvolved in the case was is

infinitely more attenuated than Juror 12’s outright lies here.

It is extraordinary that the trial court found, in the face of Juror 12’s grievous

dishonesty, that Juror 12’s “intentions were pure.” R.35. It is difficult to

comprehend how the court could have reached that conclusion, after Juror 12 had

disregarded the court’s instructions, lied and perjured herself, tried to destroy

evidence, and attempted to conceal that destruction. Juror 12’s conduct was

anything but “pure,” and the People cannot demonstrate otherwise.7

7
As Mr. Neulander’s counsel points out, Brief for Def.-Resp. at pp.25-26, if the facts suggest
that a juror may be biased, the juror’s own statements about her ability to be impartial “become
irrelevant.” United States v. Parse, 789 F.3d 83, 100-01 (2d Cir. 2015). See also pp. 20-24,
supra.

27
 CONCLUSION

For the foregoing reasons, the NYCDL respectfully requests that the

Court affirm the decision of the Appellate Division, Fourth Department.

Dated: February 20, 2019

RespÿctfUUyÿubmitted,
By:
L
CAROLINE RULE
KOSTELANETZ & FINK, LLP
7 World Trade Center, 34th Floor
New York, New York 10025
crule@kflaw.com
Tel: (212) 808-8100

Counsel for the New York Council of

Defense Lawyers

SUSAN R. NECHELES
HAFETZ & NECHELES LLP
10 East 40th Street, 48th Floor
New York, New York
snecheles@hafetznecheles.com
Tel: (212) 997-740
President, New York Council of Defense
Lawyers

28
 CERTIFICATE OF COMPLIANCE
Court Rule 500.1 & 500.13(c)(1)
I hereby certify that the total number of words in the brief, inclusive of
headings and footnotes and exclusive of the brief cover, table of contents, table of
authorities, signature block, and certification of compliance is 6,939.
I also certify that the body of this brief has been prepared in a proportionally
spaced typeface using Microsoft Word in 14-point Times New Roman, and that the
footnotes are printed in 12-point Times New Roman.

Dated: New York, New York

February 20, 2019

By:

CAROLINE RULE
KOSTELANETZ & FINK, LLP
7 World Trade Center, 34th Floor
New York, New York 10025
crule@kflaw.com
Tel: (212) 808-8100

Counsel for the New York Council of

Defense Lawyers

29