On Friday, May 5, 2000, in the above
captioned case, it came to the Court's attention that one of the
principle jurors claimed that the defendant waved at him in what the
juror subjectively believed may have been an effort to communicate with
him improperly.
Defense counsel was informed of this fact
for the first time on the record immediately prior to the time that
defense counsel had anticipated giving his closing argument to the jury.
The Court then proceeded to conduct an
examination of the principle juror (Mr. Johnson) in order to place his
allegations on the record.
The Court also permitted the Assistant
District Attorney and Defense Counsel two opportunities to inquire of
Mr. Johnson.
Mr. Johnson's account of the interaction
indicated that Mr. Smith made a hand gesture to him that could fairly be
described as a gesture of greeting or recognition. Mr. Johnson appeared
quite agitated by the incident and told Mr. Smith that he was not
supposed to have any contact with him. According to Mr. Johnson, Mr.
Smith engaged him either verbally or by hand signal no further and the
incident was concluded.
Mr. Johnson also informed the Court that he
spoke with Alternate Juror Number 1 (Mr. Jennings) about the incident
and expressed his concern about it.
On being questioned by both defense counsel
and the Assistant District Attorney, Mr. Johnson quite clearly indicated
that the incident shook him up. He suggested that as he saw the case, it
amounted to a credibility contest between the police and Mr. Smith.
Therefore, in his mind his ability to be fair was impaired, since he
believed that Mr. Smith's willingness to deviate from the admonitions of
the Court was something that reflects on his credibility.
Mr. Jennings did not appear to draw such
negative inferences about the incident. In questioning by both counsel,
Mr. Jennings revealed that the incident as it was described by Mr.
Johnson did not really trouble him and would not influence his decision
should he become a principle juror.
After hearing arguments from both counsel,
the Court removed both Mr. Johnson and Mr. Jennings from the jury.
The Court removed Mr. Johnson because of
his specific statements indicating that he had lost the impartiality
required of a juror and removed Mr. Jennings on defense counsel's motion
out of a sense of duty to the appearance of propriety and due process.
At the conclusion of these proceedings the
Court then inquired of the Assistant District Attorney whether she would
have some sort of an application related to changing Mr. Smith's bail
status. [Note to readers of this document on the web - The Court
disputed this statement, remembering the event differently than defense
counsel.]
Although it did not appear that the
Assistant had intended to make such an argument, upon the inquiry from
the Court, the Assistant quite readily indicated that she was quite
interested in making such a request.
Initially, the Assistant suggested that the
appropriate ruling from the Court be that Mr. Smith be remanded,
notwithstanding that New York State Law does not provide for the remand
of defendants charged with misdemeanors, at least under the
circumstances posed by the instant situation.
The Court correctly informed the Assistant
that remand was not a permissible option.
Failing in her request that Mr. Smith be
illegally remanded, the Assistant then proposed that $100,000 bail be
imposed as a result of Mr. Smith's alleged behavior in making some form
of hand gesture of greeting to a principal juror on his case.
Next, defense counsel was given an
opportunity to be heard.
Initially, defense counsel began by
addressing the implication in the Assistant's argument that the bail
condition ought to be imposed as some form of punishment.
The Court pointedly suggested to defense
counsel that it was not a question of punishment, and counsel believes
that the Court may have even made reference to the fact that as a
general proposition preventative detention is not permissible in New
York.
Then defense counsel attempted to address
the issue of Mr. Smith's record of appearance in Court.
Again, the Court suggested to defense
counsel that the issue of Mr. Smith's returning to Court was not the
Court's principle concern. The Court directed defense counsel instead to
an issue or factor described by the Court as something like "the
integrity of the jury".
Defense counsel attempted to address this
issue on the spur of the moment and engaged the Court in oral argument.
Without making a decision, but nevertheless
declaring that the defendant was not to leave either the courtroom or
the well of the court, the Court then directed that the remaining jurors
be brought in and that counsel would make closing arguments.
Upon making closing arguments and
dismissing the jury for the day, the Court resumed discussion of the
issue with defense counsel.
Defense counsel indicated that this was a
matter of first impression in his experience, but the Court placed on
the record that the Court had "unfortunately" been involved in a few
incidents similar to the instant situation.
At the conclusion of arguments in this
matter, the Court imposed a bail condition of $75,000 on Mr. Smith.
During the course of making the decision,
the Court made quite clear, in keeping with the Court's admonishment of
defense counsel, that the defendant's returning to court was not the
critical factor in his analysis (if it formed any part of the analysis
at all), but that the critical factor was a motivation to preserve the
integrity of the jury.
As of Monday, May 8, 2000, the Defendant
has remained incarcerated, unable to post a bond or make bail.
Defense counsel could find no legitimate
basis in the statutory law, case law, or constitutional law for the
Court's actions for the reasons stated on the record by the Court on
Friday, May 5, 2000 in Part .
Furthermore, a review of the applicable
rules and cases indicates that the law in this area quite clearly is
that the only legitimate concern of the court in the instant situation
was the likelihood of defendant's return to court (and therefore defense
counsel's initial instincts to address the issue were correct) (See memo
of law, attached)
Defense counsel could find no basis in the law for the consideration of a
factor called "preserving the integrity of the jury". (See memo of law,
attached)
Therefore, the Court in depriving Mr. Smith
of his freedom for the past almost three days acted illegally, and as a
result Mr. Smith has lost the enjoyment of almost three days of freedom
that were otherwise guaranteed to him by the law and the Constitution of
the State of New York and the United States Constitution.
Therefore, defense requests that Mr. Smith
be immediately released from custody and restored to his previous bail
status of release on his own recognizance.
This application is made notwithstanding
that the jury is to hear the charge shortly. Every moment of illegal
custody (even custody in the context of this courtroom setting) of a
human being at the hands of an all-powerful Government is a tragedy
arguably worse in the long run than almost any crime that any individual
human being may commit. Freedom from the potential abuses of an
all-powerful Government is the driving theme behind our most basic
principles of justice contained in the founding documents drafted by our
Forefathers when this country was born.
DATED: May 8, 2000
Don A. Murray, Esq.
Return to Top
Memorandum
of Law
Issue:
Whether the Court may impose an increase or
change in a defendant's bail status when the defendant is charged with a
misdemeanor and is alleged to have waved at a juror, on the theory that
the "integrity of the jury" needs to be protected from the Defendant's
actions, without reference to what impact the fact that the defendant
may have waved at a juror had on his willingness or ability to return to
court.
Article I, § 5 of the N.Y. Constitution states:
"Excessive bail shall not be required nor
excessive fines imposed, nor shall cruel and unusual punishments be
inflicted, nor shall witnesses be unreasonably detained."
The New York State Legislature has enacted
numerous statutes regulating the imposition of bail according to the
Constitutional mandate of Article 1, Section 5 of the New York State
Constitution. These statutes are located generally within Criminal
Procedure Law Article 530, which quite specifically indicates the
circumstances when bail or recognizance are mandatory, discretionary, or
prohibited.
Article 530 is further modified by CPL §
510.30[2], which sets forth the criteria a judge must apply when she has
discretion to issue an order of recognizance or bail. That section
requires that:
[w]ith respect to any principal, the
court must consider the kind and degree of control or restriction
that is necessary to secure his court attendance when required.
(emphasis added)
The plain meaning and clear goal of the law
as it actually exists in New York is that there is but one purpose for
bail (in all but a tiny subset of extremely specific situations), that
is to secure the court attendance of the accused when required. Nowhere
within CPL Section 510.30[2], or within any other section of New York
State law that defense counsel was able to locate is there a purpose for
bail listed that is described as "to preserve the integrity of the
jury."
Criminal Procedure Law Section 530.60(1)
and (2) address the circumstances when a court is permitted to revoke or
review the bail of an accused while the defendant's case is pending.
(See attached Exhibit A at page 15) Subsection One of CPL Section 530.60
reads in relevant part:
Whenever in the course of a criminal
action or proceeding a defendant is at liberty as a result of an order
of recognizance or bail issued pursuant to this article, and the court
considers it necessary to review such order, it may, and by a bench
warrant if necessary, require the defendant to appear before the court.
Upon such appearance, the court, for good cause shown, may revoke the
order of recognizance or bail.
Therefore, the question becomes in the
instant case whether a desire to "protect the integrity of the jury" as
formulated by the Court on the facts before it in the instant case is
"good cause" within the meaning of the law.
Exactly what is meant by "good cause" in
the context of this statute has been determined in at least one case of
superior jurisdiction to this court. In 1998, Justice Kohm, who sits
above this court both literally and figuratively, published an opinion
quite clearly addressing the meaning of "good cause" in the context of
this statute. People v. McDonnell, 177 Misc.2d 610, 677
N.Y.S.2d 700 (Queens County Supreme Court, 1998). (See attached Exhibit
B at page 18)
In McDonnell, Justice Kohm held
that "Turning to the law in this area, revocation of bail pursuant to
CPL 530.60(1) must be 'based upon some factor that has a material
bearing upon the probability of defendants' future attendance.'"
(emphasis added)
Justice Kohm left no room for debate about
the required underlying analysis of what "good cause" means. He did not
cite a laundry list of possible factors that each individually might be
considered good cause. Instead, "good cause" pursuant to CPL Section
530.60(1) MUST be materially related to the probability of defendants'
future attendance.
Justice Kohm of the Supreme Court of the State of New York did not suggest
that in addition to considering the probability of defendants' future
attendance, the Court was to consider the potential impact of the
defendant upon the "integrity of the jury".
Justice Kohm's view is also supported by
the New York Court of Appeals. In the Matter of J. Richard Sardino
v. STATE COMMISSION ON JUDICIAL CONDUCT, 58 N.Y.2d 286, 448 N.E.2d
83, 461 N.Y.S.2d 229 (New York Court of Appeals, 1983).
In Sardino, the Court of Appeals,
in dealing with the conduct of a judge accused of a variety of forms of
misconduct related to the fixing of illegal bail, held that the judge's
conduct and statements indicated that he was "acting punitively with
little or no interest in the only matter of legitimate concern, namely,
whether any bail or the amount fixed was necessary to insure the
defendant's future appearances in court." 58 NY2d at 289.
The New York Court of Appeals, therefore,
made no reference to a factor called "protecting the integrity of the
jury" and quite pointedly indicated that there was only one matter of
legitimate concern in the fixing of bail.
Furthermore, another court of superior
jurisdiction to this Court has held, in a situation involving facts far
more damaging and incriminating to the defendant than the facts
presented in the instant case, that there is no legitimate factor the
law permits to be considered with respect to CPL 530.60[1] other than
insuring the defendant's future appearances in court. People v.
Saulnier, 129 Misc.2d 151, 492 N.Y.S.2d 897 (New York County
Supreme Court, 1985). (See attached Exhibit C at page 25)
In Saulnier, during the pendency
of the case, the Assistant District Attorney brought it to the Court's
attention that they had evidence that the defendant had actually
threatened a potential prosecution witness with bodily harm if that
potential witness testified against the defendant at trial. The
Assistant District Attorney then suggested that such facts constituted
"good cause" within the meaning of CPL 530.60[1] and requested that the
defendant's bail status be changed. Id.
The Justice of the New York Supreme Court
held that even in a situation in which the allegations against the
defendant involved actual threats of physical violence, CPL Section
530.60[1] did not authorize the court to alter the bail status of the
defendant in the absence of evidence that the defendant's likelihood of
returning to court has changed.
Subsequent to this decision, the New York
State Legislature amended CPL Section 530.60[2] to specifically
authorize a review of bail under the specific circumstances of victim or
witness intimidation. This amendment did not "overrule" the Saulnier
analysis. In fact it confirmed its accuracy. The Legislature did not
amend subsection One, but rather added a highly specific set of
circumstances to the already carefully specifically limited forms of
preventative detention authorized by subsection 2.
The Legislature could well have chosen to
define "good cause" and specifically include victim or witness
intimidation, but it did not. Rather, despite victim or witness
intimidation NOT being "good cause" as that term is correctly
interpreted in the context of the statute, the Legislature chose to add
it to a list of highly specific circumstances that Courts are permitted
to consider regardless of whether those circumstances are "good cause"
or not.
Assuming "good cause" cannot be
demonstrated by some factor related to the defendant's appearance in
court, the next part of the analysis takes the Court to CPL Section
530.60[2], which contains highly specific circumstances in which factors
unrelated to willingness to return to court are enumerated.
CPL Section 530.60[2](a) reads, in
pertinent part:
Whenever in the course of a criminal
action or proceeding a defendant charged with the commission of a
felony is at liberty as a result of an order of recognizance or
bail issued pursuant to this article it shall be grounds for revoking
such order that the court finds reasonable cause to believe the
defendant committed one or more specified class A or violent felony
offenses or intimidated a victim or witness in violation of sections
215.15, 215.16 or 215.17 of the penal law while at liberty…(emphasis
added)
As a preliminary matter, the defendant does
not stand before the court accused of the commission of a felony.
Therefore, subsection 2 does not even apply in the first place. And even
if subsection 2 were to apply to this defendant initially, the defendant
has not been accused of a specified class A or violent felony offense,
nor has the defendant been accused of violating sections 215.15, 215.16
or 215.17 of the penal law while at liberty. Therefore, this section
does not apply to the defendant.
Defense counsel has been able to locate no
other statutory authority to review or revoke bail that would even
arguably apply to the instant situation.
Even if the current statutory scheme were
debatable, this Court is bound by the holding of Justice Kohm that the
only legitimate concern with respect to "good cause" referred to in CPL
Section 530.60[1] are those facts which relate to the defendant's
likelihood to return to court. Justice Kohm's analysis is supported by
the analysis of the Saulnier Court and by the analysis of the Court of
Appeals itself.
Furthermore, Justice Kohm's analysis of the
singularity of meaning of "good cause" came in 1998, well AFTER the
Legislature's amendment of Section 530.60[2] to include the language
related to allegations of intimidating witnesses. This would indicate
that the Saulnier court's assessment of the clear mandate that "good
cause" only refers to factors related to the likelihood of the
defendant's returning to court was unaffected by the amendment.
There being no statutory authority for
considering "protecting the integrity of the jury", and that being the
clear basis of the Court's decision to hold Mr. Smith on $75,000 bail,
this Court was wrong and this Court rendered a decision that was illegal
in New York State.
Therefore, the defendant should be released from the custody of the
Government immediately.
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