The Court of Appeals in Albany
The Court of Appeals in Albany ()

The Orange County District Attorney’s Office has asked the Court of Appeals to eye a state appeals court’s decision to throw out convictions for four defendants who were tried by an anonymous jury.

Last week, a panel of the Appellate Division, Second Department, threw out assault and firearms possession convictions and ordered a new trial for four men who participated in a brutal gang attack in 2009 in Newburgh.

Writing for the majority in a 3-1 decision, Justice John Leventhal said that Orange County Court Judge Nicholas DeRosa violated state law by empaneling an anonymous jury after reports of jury intimidation in the courthouse parking lot during the trial for the four men surfaced.

Judge Leventhal

“Empaneling an anonymous jury may undermine the presumption of innocence by conveying, before any evidence is presented, that the defendant is a dangerous person from whom the prospective jurors must be protected,” Leventhal wrote.

The panel also used the decision to make the rare move of granting the Orange County District Attorney’s Office leave to appeal the decision to the Court of Appeals and certified the question of whether or not the Second Department’s decision in People v. Flores, 2017 NY Slip Op 05457, was properly made.

Leventhal was joined in the majority by Justices Cheryl Chambers and Betsy Barros.

“The office is reviewing the decision and intends to seek further review in the Court of Appeals,” said Orange County Executive Assistant District Attorney Andrew Kass.

According to the decision, during the 2010 trial for Alex Flores, Lucio Ramirez, Benigno Aguilar and Emmanuel Flores, a defense attorney raised objections over empaneling an anonymous jury, to which DeRosa responded that there is no constitutional right to know the names of jurors.

Leventhal said that the plain language of the state’s Criminal Procedure Law §270.15 requires jurors’ names be called.

Writing in dissent, Justice Mark Dillon said he agrees with his colleagues that DeRosa erred by not releasing the names of the jurors during voir dire or the trial, but said the error was harmless.

As for the law itself, however, Dillon noted that its current language was written in 1983 and that much has changed in the years in the way of electronic search capabilities. He said the state Assembly may want to consider reviewing the language of the statute to determine if it goes far enough to protect jurors.

“Persons’ lives and physical safety may truly be at stake,” Dillon said.

Assistant Orange County district attorney Robert Middlemiss appeared for the prosecution in the case.

Leonard Levenson of Manhattan represented the defendants.

Anonymous juries are allowed in federal court and, while it is now not permitted by statute in New York courts, the first fully anonymous jury in the United States was empanelled in New York City in the 1977 trial of drug kingpin Leroy “Nicky” Barnes, also know as Mr. Untouchable.

In the last few decades, an increasing number of states adopted rules to allow jurors’ identities to be shielded. Notable examples of cases with anonymous juries include the 2015 trial for one of the Baltimore police officers charged in the death of Freddie Gray and the prosecution of George Zimmerman, who shot and killed 17-year-old Trayvon Martin in 2012 in Florida.

Courts that push for anonymous juries typically argue that they are needed to keep jurors safe and to avoid tampering, but some judges have pushed for anonymous juries because of media interest in a case, according to the Reporters Committee for Freedom of the Press.

In one such case, Gannett v. Delaware, a judge in a high-profile murder case in the 1980s empaneled an anonymous jury to keep the media from reporting on the jurors themselves. In 1989, the Delaware Supreme Court said that, while it was understandable that the judge in the case would want to protect jurors, shielding their identities created First Amendment concerns.

In addition to the rarity of a New York state judge empaneling an anonymous jury, it’s also uncommon for a state appellate court to grant leave to the Court of Appeals sua sponte, said Robert Rosborough IV, a partner at Whiteman Osterman & Hanna who is not involved in the case.

“In all my years of practice [Rosborough was admitted to the bar in 2009] I’ve never seen one happen that way,” he said. Rosborough said the sua sponte grant of leave to the state’s high court may indicate how important the Second Department considers the issue.