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April 6, 2019

‘Forbidden’ Instruction Forces Retrial, 2nd Circuit Rules

By Michael H. Joseph

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U.S. District Judge Thomas McAvoy’s actions in an immigration and marriage fraud trial potentially tainted the jury, requiring the convictions be overturned and the case remanded, the appellate panel found.

A guilty verdict in a marriage and immigration fraud trial out of the Northern District of New York has been vacated by the U.S. Court of Appeals for the Second Circuit, after the panel found the trial judge’s ex parte communications with jurors and instructions ahead of deliberations raised too many concerns about the fairness of the proceedings. Obviously jurors look up to the Judge and when a Judge implies guilt or that he prefers a certain side, that is fundamentally unfair and prejudicial.

At one point during the trial, McAvoy’s clerk alerted the judge to concerns being expressed by the jurors. The judge then went into the jury room, without alerting counsel to the parties, and had a discussion about defendants’ presence outside of the courthouse, in ways some jurors suggested could have been threatening.

Even after speaking with the defendants and hearing concerns about the ex parte communications, McAvoy did not ask if the jurors were discussing the concerns among themselves, nor did he ask them questions to determine whether their impartiality had been compromised by the concerns. During the charging of the jury, McAvoy told the jurors they could take into account whether the defendant’s interest in the outcome of the case created a motive for them to lie. Defense counsel did not, at the time, object to the instruction.

The panel found McAvoy’s actions in speaking with the jury went against the law of the circuit meant to avoid situations pregnant with the possibility of error, where it was possible for a judge’s comments to generate unintended and misleading impressions with jurors about what he or she thinks. This, the panel noted, was why jurors were supposed to put inquiries in writing. Instead, McAvoy found himself responding to unexpected questions in an uncontrolled environment, exactly what the circuit law sought to avoid. That McAvoy failed to alert the defendants or their counsel before speaking with the jurors, and then after offer a less-than-full account of what had been discussed only compounded the problems. These problems were then further compounded by McAvoy’s instructions that the jury could consider defendants’ motives for possibly providing false testimony.

For all these reasons, the panel said it was compelled to vacate the convictions.

Our White Plains Attorneys believes that this case boiled down to the fact that the defendant was not provided with a fair trial and the jurors were allowed to consider factors outside of the evidence including their own perceptions of the defendant outside the courtroom. There is a reasonable probability that the errors complained of might have contributed to the convictions. The Court recognized that these errors were prejudicial and required the reversal of defendant’s’ convictions.

 
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