Opinion 07-49

April 19, 2007

Digest:         Where a judge has inadvertently learned ex parte facts about a juror’s alleged misconduct, the judge must recuse only from hearing any portion of a post-trial motion that relates to such alleged misconduct. However, the judge may preside over other portions of the post-trial motion unrelated to the alleged misconduct, if the judge concludes he/she can be impartial.

Rules:          22 NYCRR 100.3(B)(6); 100.3(C)(1); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e).

Opinion:

         A judge advises that, after a jury trial ended and the judge discharged the jury, a juror mentioned to the judge in passing that the juror used his/her own professional experience to help the other jurors understand some of the evidence. Believing the juror’s conduct might render the verdict vulnerable, the judge disclosed this conduct to both sides and held a hearing on the matter. At the hearing the juror denied making any remark to the judge. The aggrieved party then filed a post-trial motion to set aside the verdict based on both the juror’s alleged misconduct and on another, unrelated ground. In light of these facts, the judge asks what, if any, recusal obligations arise for each aspect of the motion.

         This Committee concludes that the judge must recuse from hearing that portion of the post-trial motion related to the juror’s alleged misconduct. The judge has inadvertently received ex parte information material to that portion of the motion, that involves factual and legal issues he/she is disqualified from resolving. 22 NYCRR 100.3(B)(6); 100.3(E)(1)(a)(ii). Recusal is also required for the separate reason that the judge would likely be called as a material witness in a hearing about the alleged misconduct. 22 NYCRR 100.3(E)(1)(e).

         As for the portions of the post-trial motion that do not involve the juror’s alleged misconduct, neither Judiciary Law §14 nor section 100.3(E)(1) of the Rules Governing Judicial Conduct mandates recusal under the circumstances described by the inquiring judge. Nevertheless, a judge must avoid both impropriety and the appearance of impropriety and must disqualify himself or herself in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Disqualification with respect to the portions of the post-trial motion that do not involve the juror’s alleged misconduct, therefore, is best left to the judge’s discretion; if the judge believes, under the circumstances, he/she can be impartial and is willing to preside, the judge may do so.          If the judge determines that he/she may preside over the portions of the post-trial motion unrelated to the alleged juror misconduct, the judge also may wish to consider which issue should be resolved first. 22 NYCRR 100.3(C)(1).

         The Committee further advises that if the issue about the alleged juror misconduct is resolved first, and the verdict is not set aside on that ground, the judge should carefully consider all the circumstances of that first phase of the motion in determining whether he/she can continue to remain impartial for the remainder of the proceedings, and whether he/she is willing to preside thereafter. 22 NYCRR 100.3(E)(1). Again, these issues are best left to the judge to resolve.