When New York State`s highest court ordered a new trial for a defendant in a minor drug case last week, judges questioned convictions in thousands of criminal cases, including some of the most notorious trials in recent years, legal experts said yesterday. Courts across the state are now preparing for a wave of new appeals based on the decision. «This is going to cause incredible problems,» said Robert M. Morgenthau, Manhattan District Attorney. He said his office would file a motion for a new hearing in the New York Court of Appeals next week. The presence of the lawyer is not enough As a subscriber, you have 10 gift items to offer each month. Everyone can read what you share. «The accused have the right to hear questions to determine the bias, hostility or disposition of a potential jury, believing or discrediting the testimony of potential witnesses,» Justice Simons wrote. The verdict was 6 to 0; Justice George Bundy Smith was not present. Such lectures, called frames, are a common practice in jury trials. They are used in jury selection and at other stages of a trial, although only jury selection was questioned in the final decision.
The cases of the Central Park jogger, the Utah tourist stabbed to death on a subway platform and the Happy Land Social Club fire that killed 87 people may need to be repeated, lawyers and prosecutors said. Vivian Berger, associate dean of Columbia University Law School, said Judge Wachtler`s Court of Appeals took a course that had always been favorable to the accused. Still, the decision was surprising, she said, because of the practical problems it poses for the courts. The decision, written by Richard D. Simons, acting Chief Justice, states that Mr. Antommarchi has a fundamental right under the United States Constitution and New York law to be present at every important stage of his trial. A conference with a juror on something other than routine issues such as scheduling conflicts is an «essential phase,» according to the decision. Recognizing the chaos the decision could bring to the court system, the Manhattan Supreme Court`s appellate division yesterday issued an executive order extending the appeal deadline on the new issue. The judges feared that lawyers with pending appeals would try to delay their cases while preparing appeals on the new issue – which, in the meantime, blocked appeals. The Appeals Division also approved free copies of jury selection for indigent accused.
The decision builds on a decision written last April by Chief Justice Sol Wachtler, who pushed the court to make various decisions expanding defendants` rights while the U.S. Supreme Court went in the opposite direction. But Judge Wachtler resigned Tuesday after his arrest on extortion charges, and it`s unclear whether his departure will affect the tribunal`s handling of Morgenthau`s appeal or its general direction toward defendants` rights. But H. Richard Uviller, a professor at Columbia University School of Law, called the decision «seriously ill-advised» and said, «I don`t think there`s a real violation of the interests of the accused, and I think the consequences in terms of ongoing cases are overwhelming.» Sidebars allow potential jurors to talk privately about aspects of their background that they might be embarrassed to discuss in open session, or opinions that judges don`t want other potential jurors to hear. Defense attorneys and prosecutors interviewed yesterday said it never occurred to them that the sidebars were inappropriate. «I think if the court thinks about it, they`ll think twice,» Berger said. «You might want to step back and take a few steps and rethink that.» William M. Kunstler, an attorney for one of the defendants convicted of attacking the jogger in Central Park on April 19, 1989, said he filed a motion yesterday seeking permission to include the issue of jury selection in his appeal, which was filed last spring. An attorney for one of the seven defendants convicted of murdering Brian Watkins, the Utah tourist stabbed to death on Sept. 2, 1990, said yesterday he was considering changing his appeal. A right to be present Some judges regularly involve the accused in all aspects of jury questioning, and their cases don`t need to be repeated, he said.
But judges who excluded defendants «because they found it more convenient» to do so could find that a significant number of their cases are cancelled, he said. It was a unanimous decision by the Court of Appeals, which ruled that Domingo Antommarchi, a Manhattan resident, did not receive a fair trial because he was not present when the judge spoke individually with some potential jurors during jury selection. When defendants are excluded, he said, they can lose faith in the justice system. Private discussions «make them think there`s something going on up there that they don`t know.» But Kenneth Finkelman, the Legal Aid Society lawyer who appealed Antommarchi, said he doubts the decision will cause as much uproar as Morgenthau and others had predicted. Paul Schechtman, attorney for the Manhattan District Attorney, called the appeals court`s decision «disastrous» and said an investigation he conducted with the state`s district attorneys suggested a near-universal deal. They said the decision risked overturning almost all of their convictions, Schectman said. The decision was made over fierce objections from the Manhattan District Attorney`s Office, which warned during a lengthy briefing that chaos could ensue. If the Court of Appeals rejects the Manhattan District Attorney`s request next week, an appeal to the U.S. Supreme Court will be heard, Morgenthau said. Judge Wachtler`s decision overturned the conviction of a man whose request to be present at the jury`s private examination was rejected. Last week`s ruling took the principle one step further by overturning the conviction of a man who didn`t even ask to be present at the sidebar.
The court held that it was not sufficient for Mr. Antommarchi`s lawyer to be present, and it was irrelevant that Mr. Antommarchi never asked to attend the conferences near the bench. Lord. Antommarchi, who sat a few meters away in the courtroom, had a constitutional right to hear the discussions and see the facial expressions and behavior of potential jurors, the court said. The presence of the accused may assist him or her in assessing potential jurors to determine whether they are biased or hostile.