Jenner & Block

Firm Wins Victory For Pro Bono Client In New York Court of Appeals

The Court of Appeals reversed a lower court and ordered a new trial for firm client, David Lang, finding that the trial court had improperly substituted a juror mid-trial.  Mr.Lang, now 78 years old, was convicted in 2012 of second-degree murder in the shooting death of his brother on the farm where they lived together in upstate New York.  As a result of that conviction, Lang was sentenced to 17 years to life in prison. 

The firm appealed first to the New York Intermediate Appellate Court, which affirmed the conviction.  The firm then petitioned the New York Court of Appeals to hear the case, and the Court of Appeals agreed to do so. Review by the Court of Appeals review is extremely rare—the court took only 34 cases out of about 2,500 criminal applications in 2019.

At issue in the appeal was the court’s substitution, on the ninth day of the trial, of a sitting juror with an alternate juror.  On the morning of that ninth day of trial, the trial judge announced that he had been told by a court official that a juror couldn’t be there because a family member had a medical appointment in Rochester, which was several hours away by car.  The court, when ordering the juror substitution, provided inaccurate (and limited) reasoning as to why it believed the juror might have suddenly become unavailable, and never actually made an inquiry into whether the juror was unavailable or likely to appear within a reasonable amount of time. 

The Court of Appeals found that the trial court failed to conduct the requisite “reasonably thorough inquiry” before substituting jurors.  “Not only did the court provide only limited – and inaccurate – reasons to support a finding of unavailability, there is nothing on the record reflecting that it made any inquiry into Juror Number 9’s whereabouts or likelihood of appearing prior to ordering the substitution of Juror Number 9 with Alternate Number 1,” reads the opinion.

The court reversed Lang’s murder conviction and ordered a new trial.

Partner Matthew S. Hellman argued before the Court of Appeals.  Associate Caroline C. Cease was also on the team.  They were supported by Legal Assistant Beth Gulden, Senior Paralegal Cheryl Olson, Associate Manager of Docketing Services Tyler Edwards and Manager of Docketing Services Na’eem Conway.  Partners Jessica Ring Amunson and Zachary C. Schauf and Law Clerk Rachel Wilf-Townsend mooted the team.  Associate Samuel C. Birnbaum and former associate Marguerite Moeller assisted with the Third Department appeal, and the original team on the long-running case included former partner Peter Pope.

TAGS: Litigation, New York Court of Appeals

PEOPLE: Matthew S. Hellman, Caroline C. Cease

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