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After learning that jurors consulted a dictionary to determine the meaning of “preponderance,” a Manhattan judge has thrown out their verdict. The jury had cleared two New York City police officers of charges of sexually harassing two subordinate officers. “Under the facts presented here and the applicable law, this court has no alternative but to reluctantly set aside the jury’s verdict,” Supreme Court Justice Lottie E. Wilkins wrote in Ryan v. City of New York, 115554/01. “The reading of the dictionary definition of ‘preponderance,’ with its various differences from the definition in the court’s charge on the law, creates a sufficient likelihood that plaintiffs were prejudiced.” The decision means a retrial for the claims set forth by Sergeant Anita Ryan and Detective Cheryl Schiefer in their suit against New York City. Ryan and Schiefer, who joined the police force in 1982 and 1986, respectively, claimed that Thomas Lawless, the assistant chief commanding officer of Patrol Borough Queens South, and Thomas Gray, a lieutenant in the same borough, engaged in a “relentless” and “humiliating” pattern of sexual harassment. Ryan, for example, claimed Gray made several lewd remarks to her and put signs on her desk proclaiming her the “Borough Bitch.” Lawless was accused of making crude remarks to both Ryan and Schiefer. The plaintiffs filed a suit against the city, alleging sexual harassment and subsequent retaliation, both violations of the city’s Human Rights Law. In February, following a two-week trial and two days of deliberations, a jury rendered a verdict in favor of the city. “Plaintiffs’ testimony at trial was both graphic and disturbing,” Justice Wilkins wrote. “However, since plaintiffs’ claims were flatly contradicted by the defendant and mostly uncorroborated by witnesses, the jury was faced with the difficult task of weighing the evidence and determining the credibility in a classic case of ‘he said, she said.’” Following the delivery of the verdict, the plaintiffs counsel, Murray Schwartz, spoke with some of the jurors as they departed. He learned that on the second day of deliberations, the jury foreman read aloud the definition of “preponderance,” as in the court’s requirement that the plaintiffs prove their case by a “preponderance of the evidence.” The plaintiffs thereafter moved to set aside the verdict on the basis of jury misconduct, pursuant to CPLR 4404. “The question presented by plaintiffs’ motion is whether a verdict should be set aside when it becomes apparent that a juror brought a dictionary into the jury room during deliberations and read the definition of a key legal term � to his fellow jurors,” Wilkins wrote. Decisions on jury misconduct motions are made on a case-by-case basis, she added. In this case, the misconduct presented a “sufficient likelihood” that the foreman’s acts affected jurors’ views regarding the meaning of “preponderance,” Wilkins ruled. NEXT TRIAL The judge offered three suggestions as to how “a recurrence may be avoided at the next trial of this action.” She suggested that the verdict sheet may have placed “undue emphasis” on the concept of “preponderance of the evidence.” Wilkins also stated that “courts can be more proactive” in confining deliberations to the facts and law presented at trial. And she added that “courts must remain vigilant in protecting the integrity of jury verdicts against out-of-court statements made by jurors after their service has ended.” Litigants have a right to speak with jurors after their service, Wilkins noted, but there is a “tendency to give comfort to a party who has been dealt a loss.” That comfort can too often be converted into grounds for impeachment, she said. The court’s decision, already a boon for the plaintiffs, possessed an added silver lining, said Schwartz, who represented the plaintiffs along with his daughter, Davida Perry, both of Schwartz & Perry. Wilkins had thrown out Ryan’s claim of retaliation, as a matter of law. Schwartz said he believes that in the retrial Ryan may again pursue the claim. “It permits us to place before the jury all of the evidence we thought that they had a right to consider,” he said. James Lemonedes, a lead city attorney on the case, called the misconduct a technicality. At the retrial, “I expect that we will present the same case as before and that we will get the same result,” he said. “But hopefully this time no one will bring in a dictionary.”

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