An Appellate Division panel on Wednesday stated its “strong disapproval” of judges chatting with jurors after trial, noting they “run the significant risk that one or more jurors will say something that then becomes an issue with respect to the verdict reached.”
That happened in the case at bar, in Davis v. Husain, A-2691-11, though the judges found a juror’s comment that the defendant did not touch the Bible when taking the oath before testifying did not necessitate a new trial.
They did find the judge’s post-verdict voir dire violated precedential holdings in Ertle v.  Starkey, 292 N.J. Super. 1 (App. Div. 1996) — that “trial judges should refrain from such interaction in  the future so as to avoid the type of allegations of judicial  bias that have been made in this appeal or other claimed grounds  for appeal” — and  State v. Walkings,  388 N.J. Super. 149 (App. Div. 2006), which found “no principled reason for permitting ex parte  communications concerning the jury’s deliberations once a verdict has been rendered and the jury discharged.”
A dissenter on the appeals panel would have gone further to order a new trial, saying it might “better deter trial judges who continue to engage in this inappropriate practice.”
The issue came up on appeal from a plaintiff’s verdict in a Law Against Discrimination case. Tomikia Davis, a medical assistant for Dr. Mira Kheny who worked periodically for Dr. Abez Husain in the same building, claimed Husain made sexually graphic comments and touched her inappropriately and that she lost her jobs with both doctors when she complained. She settled her claim against Kheny.
In trial of her suit against Husain, a Camden County jury awarded her $12,500 and fees of $68,000.
After the verdict, Superior Court Judge Stephen Holden spoke with the jurors — as was his usual practice — to answer questions “about this process, about what you observed, about what you thought.” No counsel were present and no recording was made.
One juror remarked that Husain, when taking the oath before testifying, had not touched the Bible. Holden later disclosed the comment to counsel. Neither side’s lawyer requested the judge to interview the juror on the record to find the remark’s import.
Husain’s lawyer mentioned the remark in a motion for remittitur. Husain, who is of Indian descent, explained in a certification that he did not touch the Bible because his upbringing taught him that touching a holy book with his left hand was a sign of disrespect. However, he did not seek a new trial on that basis.
After the remittitur motion was denied, Husain filed an appeal that raised several alleged trial errors, including Holden’s failure to declare a mistrial on the basis of the juror’s comment about Husain and the Bible.
Judges Carmen Alvarez and Alexander Waugh Jr., besides registering their disapproval of Holden’s post-verdict interviews, faulted his taking no steps to ascertain whether the juror’s observation improperly influenced the jury’s verdict, not making a record of the incident and not offering counsel the opportunity to explore it further.
“Indeed, the judge subsequently took offense that defense counsel raised [the remark] in connection with his post-trial motion,” telling Husain’s counsel that he was “surprised that comment that I made out of my continuing concern for education winds up in a brief in a certification,” they noted.
Although Holden had told counsel about the remark in confidence, the judges saw no basis for that confidentiality. “An attorney’s overarching obligation to the client compels the attorney to take appropriate action for the client’s benefit,” they said. “The attorney should not have been made to feel that, in doing so, he had breached a confidence imparted by the judge.”
But the appeals judges saw no manifest injustice requiring a new trial.
For one thing, Husain did not seem to contend that the juror’s remark reflected a discriminatory animus, but rather that the juror may have considered his testimony less credible because he did not touch the Bible.
But the remark was only a statement of fact; no juror indicated that Husain’s failure to touch the Bible adversely influenced his or her decision on the issue of credibility; the trial judge found the verdict was consistent with the facts presented during the trial; there was no contemporaneous request by defense counsel that the remarking juror be questioned; and there was no specific motion for a new trial based on the juror’s statement, the judges wrote.
The dissenter, Judge Clarkson Fisher Jr., said Holden’s failure to conduct a hearing into whether other jurors made similar observations or whether the juror shared her observation with them was a prejudicial error.
“On the present record, there is no way of dismissing the possibility that the jury may have decided the credibility contest in favor of plaintiff by relying on a circumstance that had no bearing on defendant’s credibility,” Fisher said.
The only way to be sure would be to conduct an evidentiary hearing, but remanding for a hearing 18 months after trial would not produce meaningful answers, he noted.
“I find more palatable the awarding of a new trial because it will ensure the rendering of a judgment based upon appropriate considerations or, at least, so there is an appearance that justice has been done in this case,” Fisher said.
Davis’ lawyer, Deborah Mains of Costello & Mains in Mount Laurel, declines comment. Husain’s lawyer, Hainesport solo Mark Molz, did not return a call.