Dec 05

Equan Southall Granted New Trial Because Juror Failed To Disclose She Had Pending Assistant DA Job Application

The New York Supreme Court Appellate Division granted Equan Southall a new trial on November 28, 2017, because a juror failed to disclose before being sworn in that she had a pending job application to be an New York County Assistant District Attorney. Southall was convicted in May 2014 of second-degree murder in the death of his girlfriend.

In August 2011 Southall was arrested in the death of his girlfriend. Southall, 25, confessed to killing her, but he didn’t intend to do so. He said it happened when he was extremely emotionally disturbed. He refused to plead guilty to second-degree murder degree murder that he was charged with. The prosecutor declined to offer a plea deal for first-degree manslaughter.

Samantha Dworken was a prospective juror for Southall’s trial. She disclosed on her questionnaire she had worked as an intern in the U.S. Attorney’s Office in New York before she went to law school. During her voir dire on April 14, 2014 Dworken told the judge she had been a lawyer for 18 months, and was currently “employed as an attorney” at “a large law firm doing corporate litigation, white collar defense and securities.” Dworken also said she had “some specialized knowledge about criminal law.”

Dworken said “Yes,” when asked if she thought she would “be able to be a fair juror in this case.”

Neither the prosecution nor Southall’s lawyer sought to exclude Dworken as a juror for cause (actual or implied bias) and neither used a peremptory challenge to have her removed from the jury pool.

Two days later the 28-year-old Dworken submitted an extensive application for a job as an Assistant District Attorney in the New York County DA’s Office — the office prosecuting Southall.

Two days after that — on April 18 — Dworken and the other jurors were sworn in.

Dworken remained silent when the judge invited the jurors to speak privately if they had “some concern or problem” with serving as a juror, and whether they wanted to discuss “anything else that . . . had not already asked about.”

During Southall’s trial his lawyer argued that because he suffered from an extreme emotional disturbance, the evidence showed he should be convicted of manslaughter.

Dworken and the other jurors convicted Southall of second-degree murder on April 29.

Three weeks after voting to convict Southall, Dworken had her first interview with the DA’s Office on May 20. Her interviewer was scheduled to be Assistant DA Craig J. Ortner — one of the two ADA’s who had prosecuted Southall. Dworken told a staff person she had recently served on a jury prosecuted by Ortner, so someone else interviewed her.

After four interviews Dworken received a job offer on July 8, and began working as an Assistant DA in the trial division on September 2, 2014.

Four weeks later, during Southall’s sentencing hearing on September 29, 2014, the DA’s Office argued for imposition of the maximum sentence. The judge sentenced Southall to 23 years to life in prison.

Nine months after Southall’s conviction and four months after his sentencing, Ortner sent a letter to the judge and Southall’s lawyer that was dated January 22, 2015. The letter stated Dworken had submitted a job application with the DA’s Office prior to being sworn in as a juror, and she had been hired in September 2014.

Southall’s lawyer filed a motion to vacate his conviction based on the new evidence of Dworken’s failure to inform the judge of her pending ADA job application before being sworn in as a juror.

An evidentiary hearing was held on February 19, 2016. The New York County DA’s Office vigorously opposed Southall’s motion and argued Dworken did nothing wrong.

Southall’s trial lawyer Patrick Brackley testified:

“that he chose not to challenge the juror because after questioning her about her experience at the US Attorney’s Office and her then-current position at a firm where she practiced white-collar criminal defense, counsel Brackley concluded that she would likely be “sympathetic to defense issues.” However, if counsel had known that the juror had a pending job application with the DA’s Office, counsel Brackley would have “inquired into it” and challenged her for cause; if that were denied, counsel would have used a peremptory challenge.”

Dworken testified “it didn’t occur to [her] that . . . submitting an application was something that [she] was supposed to disclose to the court.” She also said she tried “to be a fair juror in this case.”

ADA Ortner was not subpoenaed to testify about when he learned Dworken served as a juror while her job application was pending.

The judge denied Southall’s motion in June 2016, ruling there was no evidence: Dworken lied during voir dire or on her questionnaire; that she exhibited actual bias against Southall; or, that her pending ADA job application was an extreme circumstance suggesting “implied bias” against Southall.

Southall appealed.

On November 28, 2017 the New York Supreme Court Appellate Division unanimously (5-0) reversed the trial judge’s ruling and granted Southall a new trial based on Dworken’s “implied bias” against him. In People v Southall (2017 NY Slip Op 08344) the Court’s ruling stated in part:

“Undoubtedly, “[f]undamental to our constitutional heritage is an accused’s right to trial by an impartial jury.”

The presumption of innocence, the prosecutor’s heavy burden of proving guilt beyond a reasonable doubt, and the other protections afforded the accused at trial, are of little value unless those who are called to decide the defendant’s guilt or innocence are free of bias.”

a defendant has a “constitutional right to a trial by a particular jury chosen according to law, in whose selection [the defendant] has had a voice.”

Here, due to the juror’s concealment of material information regarding her job application, which also demonstrated a predisposition in favor of the prosecution, defendant was deprived of an impartial jury comprised of 12 jurors whom he had selected and approved through voir dire. In fact, defendant was tried by only 11 jurors whom he truly selected and approved; this violated his constitutional right to a jury of 12 of his own choice in a criminal case … He was also deprived of exercising the various safeguards put into place by our legislature. As defense counsel testified, had the juror timely disclosed this information he would have moved to strike her for cause, and if unsuccessful would have exercised a peremptory challenge against her.

While the juror did not lie when she was questioned as a prospective juror, she later concealed material information — her application to work for the office prosecuting this case — which, as an attorney with some specialized knowledge of criminal law, she should have known to disclose to the court. … we find that the record demonstrates that the juror possessed a state of mind likely to prevent her from rendering a fair and impartial verdict.

Separately, permitting a juror seeking employment with the prosecuting agency in a criminal matter to serve on the jury creates the appearance of impropriety, and erodes the public’s confidence in the criminal justice system. Indeed, a number of cases make clear that a juror’s recent contact or association with the prosecuting agency’s office warrant a dismissal for cause

In sum, the court should have granted defendant’s motion to vacate his conviction, since “improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment,” which “would have required a reversal of the judgment upon an appeal therefrom” if it had occurred on the record.

Accordingly, the judgment … should be reversed, on the law, the motion to vacate granted, and the matter remanded for a new trial.

Click here to read the ruling in People v Southall (2017 NY Slip Op 08344).

Southall, now 31, admits he is not innocent of any crime related to the death of his girlfriend, just that he isn’t guilty of second-degree murder that the pro-prosecution stacked jury convicted him of.

At least three unanswered questions are why the DA’s Office waited nine months to notify the trial judge and Southall’s attorney about what Dworken did; what prompted the sudden mailing of the DA’s letter in January 2015 explaining what had occurred; and, why has DA Cyrus Vance’s office fought so hard to defend what Dworken did?

Dworken remains employed as an ADA in the trial division of the New York County DA’s Office.

December 5, 2017
By Hans Sherrer
Justice Denied

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