NEW YORK, March 29 (Reuters) - When a high-profile lawyer
serves on a high-profile criminal case, what obligation does he
have to disclose his connections to prosecutors?
That is the question posed after an unusual round of
discussion that occurred on Tuesday in a sexual assault trial in
State Supreme Court in Manhattan.
In the case, off-duty police officer Michael Pena had been
accused of sexually assaulting a woman at gunpoint in Manhattan.
A trial began in mid-March.
On Tuesday, before the jurors reached a partial verdict, one
juror raised questions about another juror - Juror #2 - saying
he had some concerns about #2's relationship with the
Juror #2 turned out to be Lloyd Constantine, a veteran of
New York legal circles, founder of the commercial litigation
firm Constantine Cannon, and one-time adviser to former Governor Eliot Spitzer.
Constantine is now counsel at Constantine Cannon. The firm's
managing partner is Richard Aborn who ran against Manhattan District Attorney Cyrus Vance in the 2009 Democratic primary.
Moreover, according to a New York Times account of Tuesday's hearing, Constantine said in the courtroom that he had a social
relationship with Vance, and had played tennis with him.
When the question arose on Tuesday, Acting Supreme Court
Justice Richard Carruthers called a sidebar conference with
Ephraim Savitt, Pena's defense attorney, prosecutors and
According to Savitt, Carruthers asked Constantine a variety
of questions and his answers left both sides satisfied. Both
parties agreed to keep Constantine on the jury.
"My sense of it is that Constantine was a fair and impartial
juror, that's why I didn't ask for him to be excused," said
Savitt. He says he wouldn't consider bringing up the Constantine
issue in any future appeal.
A spokeswoman from the Manhattan DA's office declined to
On Tuesday, Pena was convicted on criminal sexual assault
and predatory sexual assault; on Wednesday, Carruthers declared
a mistrial on the remaining rape charges, because jurors were
ACTUAL PREJUDICE REQUIRED
In an interview after the trial, Constantine said he knew
both Aborn and Vance, gave $5,000 to both men's campaigns, has
played tennis with both men, and "broken bread," with both men.
He also said he was forthcoming about the connections during
the voir dire process, when the court distributed a
questionnaire to potential jurors and asked about their
relationships with law enforcement.
"I answered all the questions they posed during voir dire
completely truthfully and honestly," said Constantine. He
described a voir dire questionnaire as "very cursory" and said
it didn't drill down into his web of legal relationships gained
from practicing law for 40 years. The only reason to disclose
those relationships would have been to get out of jury duty,
"You'd have to be practicing at the bottom of the Pacific
Ocean not to know a good number of prosecutors, as well as
defense lawyers. I just wasn't going to play the game," said
The information that Constantine had relationships with both
Aborn and Vance "probably" should have been disclosed during
voir dire, said Ronald Minkoff, a litigator at Frankfurt Kurnit
Klein & Selz who counsels clients on ethics matters.
However, "I don't know if it automatically disqualifies one
from being a fair and impartial juror in any cases from the
Manhattan DA's office," said Minkoff. The district attorney's
office tries thousands of cases a year, a fact that would lessen
Constantine's connection to an individual case, Minkoff added.
Nevertheless, Carruthers did the right thing by allowing
Constantine to remain on the jury, said Bennett Gershman, an
ethics professor at Pace Law School. "There's a very high burden
to show bias. It's not enough that a juror is going to be
slanted in favor of one side or another," said Gershman.
A 1982 Supreme Court decision in Smith v. Phillips codified
the high threshold by which true bias must be shown so as to
cause a mistrial, said Gershman.
"The safeguards of juror impartiality, such as voir dire and
protective instructions from the trial judge, are not
infallible; it is virtually impossible to shield jurors from
every contact or influence that might theoretically affect their
vote," then- Chief Justice William Rehnquist wrote in that
After the trial, Constantine said he was unruffled by the
"Apparently a lot of people are weighing in with their
experts on this part of it. But I'm a big boy and I've been
around a long time and I can take it," he said.
(Reporting By Carlyn Kolker; additional reporting by Noeleen
Follow us on Twitter: @ReutersLegal