Tuesday, October 20, 2020

Non-Reversible Filth

The New York Court of Appeals affirmed a criminal conviction for assault

This appeal by defendant presents the issue we found unpreserved on the appeal of  his codefendant (People v Bailey, 32 NY3d 70, 82 [2018])—namely, whether the trial court abused its discretion as a matter of law in giving the jury a curative instruction and forgoing a Buford inquiry (People v Buford, 69 NY2d 290 [1987]) of a sworn juror after her midtrial exclamation that she was “very offen[ded]” by the repetitive use of a racial slur by Bailey’s counsel while cross-examining the victim. Viewed in context, the record supports the trial court’s findings that the juror’s reaction was triggered by counsel’s fifth and gratuitous use of the epithet, and provided no basis to indicate she was grossly unqualified. Since the entire incident unfolded in open court, a Buford inquiry of the juror was unnecessary, as the court was able to adequately assess that her outburst was not a transformative one and her sworn oath to be impartial remained intact. The court’s remedy of admonishing the juror and counsel and issuing a carefully crafted curative instruction— which included a mechanism for any juror to advise the court if they could not be fair and impartial due to anything that occurred at trial—was not an abuse of its discretion. Thus, the Appellate Division order should be affirmed.


Defendant Batticks and codefendants Wiggins and Bailey were tried jointly for their assault of Stephen Davis while the four men were incarcerated. Davis testified that a verbal dispute with Wiggins preceded the assault. Attempting to “goad” Davis during crossexamination (Bailey, 32 NY3d at 73), Bailey’s counsel used Wiggins’ various verbal taunts verbatim, including asking Davis four times whether Wiggins had called him an “old [nword].” Davis, who recalled the younger Wiggins had called him an “old guy,” also admitted Wiggins’ may have used the slur, but said he viewed the slur as “just words.”

After changing topics, Bailey’s counsel revisited Wiggins’ verbal provocations, and—for the fifth time—asked Davis whether Wiggins called him “an old [n-word].” Immediately, Juror Six stood and said: “Please, I am not going to sit here . . . and [have] you say that again. Don’t say it again or I’m leaving. . . . I find that very offensive.” The court immediately reprimanded the juror for her “inappropriate” outburst and admonished counsel for repeating the question “a half dozen times,” directing him to “[m]ove on” and stop “ask[ing] the same question over and over and over again.” Bailey’s counsel moved for a mistrial, claiming Juror Six was grossly unqualified because she was unable to
separate the facts from her own “distaste” for the racial slur. The court found the “juror’s reaction” was directed solely at “the number of times” the slur was used, not the legitimacy of the questioning. Batticks’ counsel moved to strike the juror on the grounds asserted by Bailey.

The trial court denied the motion and gave a curative instruction.  (Mike Frisch)


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