Top NY Court Critical of Jury Anonymity in Gang Trial

KINGSTON, N.Y. (CN) – New York’s highest court appeared reproachful Thursday of the decision to let jurors in the 2010 trial of four gang members remain anonymous.

Criticizing assertions that keeping names secret was a critical step in protecting the jury, Judge Rowan Wilson noted in oral arguments this morning that intimidation can take many forms.

“You don’t need to know somebody’s name or address” to approach them in a parking lot, Wilson said.

Wilson voiced concern as well about how jury anonymity might hamper voir dire and other steps in the trial, including witness examination and closing arguments, noting that attorneys could skillfully craft their questions and arguments based on the backgrounds of certain jurors.

Thursday’s hearing followed a decision by a lower appeals court that jury anonymity violated the rights of La Eme gang members Benigno Aguilar, Alex Flores, Emmanuel Flores and Lucio Ramirez.

Each was charged with beating and stabbing a rival gang member during a street fight, and Justice Nicholas DeRosa granted the jury anonymity when a number from their ranks voiced concern for their safety during the selection process in Orange County Supreme Court. One of the jurors reportedly claimed that she was intimidated near her car by one of the defendants, who was out on bail during the trial, along with several other individuals.

Though DeRosa ultimately provided the jurors’ information to defendants’ counsel at the end of the trial, he kept their identities secret at trial even from the lawyers during.

Referred to by their number only, the jury handed convictions all around to the four defendants, sentencing them to at least 18 years in prison.

Prosecutors are vying for a reversal now from the New York Court of Appeals after a lower court found that anonymous juries are not covered in state law, though they are permitted in certain cases by the federal court system as well as by several other states.

During the hearing Thursday at the Ulster County courthouse, prosecutor Robert Middlemiss noted the disclosure of a name would leave their home address vulnerable to anyone who can use Google.

“The main reason names are relevant today is that without protecting names, there is no protection at all,” said Middlemiss, an Orange County assistant district attorney.

Judge Eugene Fahey questioned, however, whether telling a jury it would remain anonymous could poison the presumption of innocence for defendants. “Is it in danger of being undermined if juries are anonymous in some cases but not others,” Fahey asked.

“The presumption of innocence is merely one factor,” Middlemiss said.

Middlemiss noted that in this case, Justice DeRosa had considered a number of factors, including potential danger to witnesses and jurors in the court’s parking lot and the judge’s own history of jurors being reluctant to give their names in gang-related cases.

It may also have occurred to DeRosa, the lawyer said, that defendant Ramirez had been charged with gang assault years prior and had skipped town to Nebraska instead of facing trial.

But Judge Jenny Rivera said state judges should have some case-specific basis at the outset for granting anonymity. In this case, however, she said DeRosa ordered a nameless jury based solely on what other jurors had said and the judge’s own past experience, not based on any facts about the defendants.

Leonard Levenson, an attorney for the four defendants, said the problem is that DeRosa said he would use anonymous juries in every gang case before him, whether justified or not.

In the underlying appeals court ruling, Judge Mark Dillon dissented on the basis that anonymity error was harmless because the defendants faced overwhelming evidence.

Levenson argued Thursday, however, that the issue was a constitutional one, and not a harmless error, since all criminals trials are supposed to be public.

Cutting to the main legal question, Judge Leslie Stein asked: “Is the withholding of juror addresses in certain circumstances unconstitutional?”

Levenson agreed that in certain cases, such as Mafia murder trials, which have a history of juror tampering, anonymity is and should be allowable. However, “a trial should be reasonably open,” he quickly added.

Middlemiss said DeRosa’s decision to grant anonymity was “absolutely harmless,” adding that no other state or the federal government has recognized any constitutional right to named juries. “New York shouldn’t be any different in that,” he said.

New York’s law says courts can restrict the disclosure of jurors’ residences or place of business “for good cause” to prevent jury tampering or harassment, but the statute says nothing about the ability to withhold jurors’ names.

In the appeals court dissent, Judge Dillon noted that the state law prohibiting anonymous juries dates back to 1983, and that organized criminals or terrorists on trial could easily find out where jurors live today.

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