Judicial Reports: LexPress: Man Down, Jury Goes On

By Jesse Sunenblick
jsunenblick@judicialstudies.com
Posted: 12-19-07 

The Court of Appeals upholds a murder conviction made by an 11-person jury. In other news, The Village Voice blows up the brewing NYPD steroid scandal. 

MAN DOWN 
In a complex decision that discussed the parameters and history of the constitutional right to a 12-person jury, the Court of Appeals upheld a man’s murder conviction despite Manhattan Supreme Court Justice Michael Obus’s decision to allow the jury to continue its deliberations with 11 jurors (the 12th had been hospitalized and all the alternates excused). The New York Law Journal has the story. Prosecutors had argued for a mistrial, but Obus allowed the short-handed jury to continue after the defendant, Winston Gajadhar, provided a written waiver of his right to a jury trial. The 5-2 Court of Appeals majority cited a 1938 constitutional amendment that allowed criminal defendants to waive their right to a jury trial (civil defendants had had the right since 1846) that “…clearly dispelled the notion that a defendant cannot consent to an alteration of the common-law jury of 12 in a noncapital criminal case. Since the waiver language in Article 1, section 2 for civil cases permits juries of less than 12, unlike the dissent, we are not persuaded that the identical language, when applied to criminal cases, prohibits a defendant's waiver allowing deliberations to continue with 11 jurors.” In 1962 an article was added to the Constitution that set the size of juries in criminal trials at 12. “A defendant exercising the right to a trial by jury must be tried by a panel of twelve, and neither a court, a prosecutor nor a defendant can alter the parameters of this fundamental mode of a judicial proceeding, that modification is solely within the province of the Legislature,” said Judge Carmen Beauchamp Ciparick and Chief Judge Judith S. Kaye in dissent. Ciparick added that the right to trial by a 12-member jury is “inviolate” and that it can only be waived if a defendant opts for a bench trial.

5,898 NEW SQUARE FEET OF GOVERNMENT LAND 
Two days after convicting Mahender and Varsha Sabhnani of imprisoning and torturing two Indonesian maids in the house — finding them guilty of charges of conspiracy, forced labor, harboring illegal immigrants, peonage and document servitude — Newsday reports that jurors have unanimously ruled that the couple’s 5,898-square-foot Long Island mansion can be seized by the government. “Not everyone is as they seem. They may seem nice on the outside, but when it comes down to it, this could be going on anywhere, anytime, and it's kind of scary,” said one juror. “Forced labor and servitude, whether performed in a field, a factory, or a home, offends human dignity,” said Benton Campbell, the U.S. attorney for the Eastern District. “As this case demonstrates, these crimes are not just remnants from a dark and distant past, but a reality that must be confronted today. Human trafficking investigations and prosecutions are, and will remain, a priority for this office.” Tomorrow Eastern District Judge Arthur Spatt will rule on whether the Sabhnanis should have their bail revoked and be remanded to jail until their sentence is imposed.

COPS ON ROIDS 
The Village Voice has a mammoth piece about steroid use in the NYPD. According to the Voice, the Brooklyn District Attorney’s Office knows of 29 cops and at least 10 NYPD civilian employees who have received steroid prescriptions as treatment for hypogonadism, a reproductive system defect. Also, it turns out that the primary informant in George Mitchell’s report on the use of steroid in Major League Baseball, New York Mets personal trainer Brian McNamee, is a former NYPD cop — although there’s no word as to how closely connected the two scandals are. The Voice reports that Brooklyn District Attorney Charles Hynes will present a case to a grand jury within the next several weeks. Central to the investigation are boxes of records pertaining to three raids at Lowen's Pharmacy in Brooklyn, where millions of dollars of steroids and human growth hormone were seized.

BAD DAD 
Lastly, Brooklyn Surrogate Judge Margarita Lopez Torres has ruled that a man who abandoned his son at a young age is not entitled to any of his $2.9 million “death benefits” (itself a strange phrase) from the Victim Compensation Fund after he died on 9/11. Leon Caldwell, “not having been a part of Kenneth's life, is not entitled to benefit from Kenneth's tragic death,” the judge wrote, as reported by Newsday. Lopez Torres also cited the fact that Caldwell never gave his son birthday or Christmas presents or attended school ceremonies.

Posted by Jesse on December 19, 2007 08:56 AM to Judicial Reports