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Fall, 2003

Curious Juror and the Redacted Evidence
Mayer, Brown, Rowe & Maw LLP

The jury was split in the case of Donald Benjamin, on trial in a New York State court for robbery and burglary. The jurors had gone over the evidence carefully more than once, but the gap couldn't be closed. Still, one juror decided to take a closer look at the exhibits they'd been given. He re-examined Defense Exhibit B, the police report. Certain entries had been blacked out with an ink marker, not the more opaque redaction tape-and-photocopy, as is normally done.

Suppressed Information
By holding the paper up to the light, the juror could clearly make out what was written beneath: Benjamin had two prior arrests for crimes almost identical to the one then under consideration and was still on probation for one of them. The juror told his fellow jurors about his discovery, and it wasn't long before the deadlock was broken. The jury convicted Donald Benjamin, who was sentenced to eight years.

What the juror did, of course, was not legal. Mr. Benjamin's prior convictions could not bear on his new case. The information had been ruled inadmissible at a pre-trial hearing (hence, the redactions).

Three days after the trial, another juror notified both the court and defense counsel of the incident. Defense counsel then entered a motion to set aside the verdict, but the trial court denied it and the state appellate courts affirmed the decision.

Habeas Motion
From jail, Mr. Benjamin took his case to the Legal Aid Society of New York. Through the LASNY, New York associate Joseph De Simone took the case and waged a lengthy appeal with the help of Matthew Mozian, Bejal Shah, and Scott Chesin. He filed a petition for a writ of habeas corpus, arguing that the jury's consideration of Benjamin's two prior, inadmissible convictions during deliberations violated his right to a fair trial, to confront witnesses and to due process.

After several years of appeal (Mr. Benjamin was convicted in 1997), Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York agreed and issued an opinion granting the petition and vacating the conviction and calling for a retrial for Mr. Benjamin. Benjamin v. Fischer, __ F. Supp. 2d __, 2002 WL 31873464 (S.D.N.Y. Dec. 23, 2002). The decision was entered as a final judgment on January 2, 2003. The case (which currently is on appeal) was a front page story in the New York Law Journal last December.

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