APPEAL from a judgment of the Court of General Sessions of the County of New York (VALENTE, J.), rendered March 27, 1953, upon a verdict convicting defendant, on two counts, of the crime of compulsory prostitution of women (Penal Law, § 2460).
George W. Herz of counsel (Arthur R. Stelljes with him on the brief), for appellant.
Richard G. Denzer of counsel (Warren S. Tenney with him on the brief; Frank S. Hogan, District Attorney), for respondent.
The defendant has been convicted by the verdict of a jury of two crimes of compulsory prostitution in violation of section 2460 of the Penal Law. The indictment contained nine counts. Six of these were in substance dismissed by the court at the close of the evidence and the jury acquitted as to one of the three counts submitted.
An examination of the record disclosed sufficient evidence to sustain the verdict of the jury. We reach the conclusion, however, that the happening of certain events during the trial were pre-judicial to the defendant in that they deprived him of a fair and impartial trial. Whatever opinion we may entertain as to
the guilt of the defendant, the judgment of conviction may not stand when the conclusion is reached that the fundamentals of a fair trial were not respected.
We discuss at the outset two incidents relating to communication with and interrogation of jurors by the Trial Judge after the jury had been selected and the trial was in progress. The first of these incidents took place on the seventh day of the trial. When recess was taken at the end of the day the jurors were excused, except juror number 5 who was summoned to the bench with counsel for the respective parties. The court--apparently not in the presence of the juror--read into the record an anonymous letter he had received. It read: '[Juror number 5] was the owner or agent for the apartment house at 305 West 111th Street, Manhattan. During 1940, numerous dispossess orders were served against a group of prostitutes who resided on the first floor, and numerous arrests were also made by the police department in this house. I was informed that the records of the Court on West 155th Street showed that it was evident that [juror number 5] would cause dispossess notices to be served after each arrest, then accept rent and thus continue the same tenants in possession of the apartment.'
Defense counsel strenuously objected to any interrogation of the juror but the court proceeded to do so after enunciating his rule of procedure that 'If I find that any juror isn't impartial, I will take him out of that box any time I can.' Neither the contents of the letter nor the substance thereof was correctly communicated to the juror. He was told by the court that 'we have a letter here which indicates--I might say it is an anonymous letter--that at sometime or other while you were managing certain property at 305 West 111th Street you had some trouble with tenants there who were prostitutes.' The juror stated that 'Liability notices' had been served upon tenants for gambling but denied the service of any for prostitution. The court thereupon enlarged its inquiry as to the impartiality of the juror 'as the result of any experience you have had in these instances of gambling'. Upon receiving a reassuring reply from the juror, the court inquired if the juror took 'any exception to my asking you these questions' or whether he had 'any prejudice now because I have asked you these questions'. The juror not unexpectedly answered in the negative to both questions.
We pass without further comment at this time to the second episode. At the beginning of the afternoon session of the eighth
day of the trial the jurors, except juror number 11, were asked to step into the jury room. At this time Sandra Wisotsky, also known as Pat Ward, was testifying as a witness for the People for the third consecutive day. Juror number 11 was summoned to the bench and the following occurred:
'The Court: This witness [Pat Ward] has indicated to me, or rather to Mr. Liebler [Assistant District Attorney], that she thinks she knows this man.
'The Juror: I would not know her.
'The Court: I have to ask these questions.
'The Juror: It is amazing.
'The Court: It is a situation that I have to ask these questions. You say you do not know her?
'The Juror: No, sir.
'The Court: All right.'
This was only the beginning of this unusual episode which was not concluded until two weeks later and just before the court delivered its charge when a final determination was made by the court and the juror that the latter could be impartial and unbiased.
The original charge that Pat Ward thought she knew the juror was leveled at the latter on a Friday. At the opening of court on the following Monday in the absence of the jury, except juror number 11, the following took place:
'The Court: [Juror number 11] was in to see me this morning and he informed me that over the week-end he became all upset about this incident in which the witness, Pat Ward, indicated that [she] might know him. He called first Mannie Robbins, who is a life-long friend of his, and told him what had happened.
'[Juror number 11]: We did not discuss the case.
'The Court: He did not discuss it but he sought Mr. Robbins' advice. Mr. Robbins, as I understand it, told him that that was a question which he had to resolve himself, namely, whether he could be a fair and impartial juror; and that was the question addressed to Mr. Robbins. Then he called his own attorney, who is--
'[Juror number 11]: Harold Berkowitz.
'The Court: --Harold Berkowitz, and told him that he didn't know whether he could be a fair and impartial juror and asked his advice also. Mr. Berkowitz told him that he would have to resolve it himself.
'Then [juror number 11] came in to me this morning and said the same thing, and I gave him the same answer, that that is something he will have to resolve himself, and the statement was made to me that he felt maybe there might have been some motive for this girl saying that she thought she knew him. Subject to your approval, counsel on both sides, it was my suggestion to [juror number 11] that if it met with your approval he should stay on there and after the passage of two or three or four more days, if he still has the same feeling, that he come back and acquaint us with it; or if he doesn't, at some stage of the proceedings we will pick him up again and ask him about it and possibly he may be able to resolve this question in his own way. I think we will all be able to rely on his statement as to whether or not he will be able to be a fair and impartial juror. How does that strike you?
'Mr. Segal: The same as it strikes you.
'Mr. Liebler: It is satisfactory to me.
'The Court: Is that all right with you?
'[Juror number 11]: I certainly feel a lot better after the chat with you.
'The Court: We leave it to your judgment. You don't have to come forward until sometime before I give this case to the jury--
'[Juror number 11]: I will certainly give you an honest answer.
'The Court: --and I will take it up with the lawyers.
'[Juror number 11]: Thank you very much.
'The Court: Bring in the jury.' (Emphasis supplied.)
There the matter rested for two full weeks. It is clear that after the juror's discussions with his friend and his attorney and his 'chat' in the Judge's chambers the juror did not know whether he could be fair and impartial. The court had thus become deeply involved in a proceeding that never should have been commenced. At this stage most certainly some final decision should have been made. The juror had told the Trial Judge that he (the juror) 'felt maybe there might have been some motive for this girl saying that she thought she knew' the juror. One searches the record in vain for any inkling as to such a motive and while Pat Ward was a witness for the People, the juror may have ascribed her motive to her character deterioration for which the People claimed the defendant was responsible. In any event the proceeding should have been promptly
resolved by an insistence that the juror decide whether he could or could not be a fair juror. Instead, the juror was not even asked to make a decision. He was given the choice of two alternatives. First, that 'he should stay on there and after the passage of two or three or four more days, if he still has the same feeling, that he come back and acquaint us with it'. Second, 'if he doesn't, at some stage of the proceedings we will pick him up again and ask him about it and possibly he may be able to resolve this question in his own way.'
Thus, the Trial Judge completely abdicated to the juror the court's authority to make a determination of the qualification of the juror to sit. The latter returned to the jury box in a stated frame of mind that he did not know whether or not he could be fair and impartial. This action was taken in the face of the court's previous statement when dealing with the other juror, who was suspected of having prostitutes as tenants, that 'If I find that any juror isn't impartial, I will take him out of that box any time I can.'
Finally, as heretofore indicated, after the summations had been completed and the court was ready to deliver its charge, juror number 11 was summoned to the bench and the following took place:
'The Court: Now, we had some discussion with you, it must be over a week ago.
'The Juror: Yes, sir. Two weeks.
'The Court: It was concerning the statement of Pat Ward that she thought she might know you.
'The Juror: Yes.
'The Court: At that time you were uncertain whether it was going to prejudice you one way or the other, either against her, or not permit you to be a fair and imparital juror. At that time we left it with the understanding that you were to tell me later in the course of the trial if you felt that you could not be a fair and impartial juror. You haven't told me, so I assume your answer is you could be a fair and impartial juror?
'The Juror: Absolutely, your Honor.
'The Court: That you are not going to be pre-judiced by the statement that she made.
'The Juror: I am quite sure of it.
'The Court: To the extent that you would be unfair and not impartial.
'The Juror: Absolutely. As a matter of fact, your Honor----
'The Court: No, no, don't say any more than that.
'The Juror: All right.'
The purpose of the voir dire examination of prospective jurors is to permit the court and respective counsel to inquire as to the qualifications of the talesman to serve in a particular action. In a criminal case a juror may be challenged for cause, which is an objection that a particular juror is either disqualified from serving in any case, or that he is disqualified from serving in the case on trial (Code Crim. Pro., § 374). Furthermore, the court may, in its discretion, for good cause set aside a juror at any time before evidence is given in an action (Code Crim. Pro., § 371).
There is good reason for these precise and definite rules of procedure. Trial by jury in a criminal case is firmly embedded in our form of government. In general when a jury is accepted and sworn and the giving of testimony has commenced further investigation and questioning of a juror as to his qualifications based upon matters preceding his acceptance as a juror have no place in our form of procedure. It is recognized that after a jury is impaneled it is under the control of the court and any misconduct should be immediately corrected and, if necessary, punished by the court in the exercise of its plenary powers or by criminal prosecution.
Here we have two separate and distinct investigations by the trial court of different jurors on successive days relating to their qualifications to serve impartially. There was no showing that either juror had concealed any facts or made any untruthful statements upon his voir dire examination. There was no evidence of any improper conduct on the part of either juror after he had been accepted and sworn as a juror in the case. To place the stamp of approval upon what took place is to enunciate a rule that a criminal trial may be interrupted at the pleasure of the court while explorations are made as to matters that should have been developed upon voir dire examination or left for proper disciplinary procedure at the close of the trial.
It is idle to speculate as to what psychological effect these activities might have had upon the two jurors. Certainly the other ten members of the jury knew that from time to time individual jurors were being retained in court after they had departed. Juror number 5 was left with the definite impression that he was suspected of having had business dealings with prostitutes. The other juror was permitted to sit in the jury box for the last two weeks of the trial and during some portion thereof
he did not know as to his ability to be impartial. At some time during this period he appears to have reached the conclusion he could be a fair juror.
In People ex rel. Flaherty v. Neilson (22 Hun 1, 5) the Trial Judge interrogated a juror in his chambers during the course of the trial in regard to an anonymous letter the Judge had received. In the letter it was charged that the juror had been playing cards with the sons of one of the defendants before the trial commenced. In reversing the judgment of conviction for what the court described as improper interference with the jurors it was said that 'The tendency was to dominate the juror's free will and to terrify him into a verdict for the people.'
We also regard as improper the private conversation between the Trial Judge and the juror who had doubts as to his ability to be an impartial juror. People v. O'Keefe (281 A.D. 409, affd. 306 N.Y. 619) is distinguishable from the instant case. There the private conference between Judge and juror took place before the completion of selecting the jury. The attorneys for the defendants were advised of what had taken place and were given the opportunity to consent that the juror be excused. They declined to do so although the Judge offered to add an additional peremptory challenge to the number of challenges then remaining if they agreed to excuse the juror. It was held that a subsequent reservation of rights until the close of the trial by the defendants concerning the qualifications of the juror did not preserve the objection for use at a later stage. There the appellate court was passing upon questions relating to the organization of the jury. In passing, however, the court reaffirmed the recognized rule that a trial judge ought not to communicate with any juror or prospective juror in the absence of counsel for all parties.
We view as serious error the action taken by the trial court relating to the two jurors. We are not called upon, however, to decide whether standing alone reversible error was committed. There was other and more serious error that demands a new trial.
We refer to the action of the trial court in closing the trial to both public and press during the presentation of the People's case and conducting a public trial during the presentation of the defense. To view the matter in proper perspective it is necessary to outline the series of events that led to the final decision of the court.
The selection of the jury occupied the first three days of the trial. On the fourth day of trial respective counsel gave their opening statements to the jury. The prosecutor in his statement outlined in some detail the activities of Pat Ward, the principal witness for the prosecution. No attempt was made to conceal any of the events of her sexual life and when the opening was concluded a picture had been painted of Pat Ward as a common prostitute. It is perhaps not amiss to point out that in his opening the prosecutor stated that it was 'with regret that I am forced to bring out the names of men' with whom Pat Ward had consorted for money.
During all of the proceedings up to this point the trial had been open to the public. As the taking of testimony was about to commence an attorney representing Miss Ward made oral application for an order to exclude the public and to conduct the trial behind closed doors during the period that his client was testifying. Curiously, he then stated as the grounds for his application the facts relating to Miss Ward's sex adventures that the prosecutor had just stated in much greater detail in a courtroom open to the public. The prosecutor would take no position on the application. Defense counsel objected and demanded a public trial. The motion was granted but it may be inferred from the language used by the court that the doors were to be closed only during the testimony of Miss Ward. To follow the subsequent events it may be helpful to quote the exact words of the court: 'I think in the interest of good morals and common decency, and in view of the age of this witness, your request is not out of order, and for those reasons and in the interest of justice, I am going along with the request, with leave, however, to the defendant to have present here in the courtroom such persons as his friends and relatives that he feels are necessary to insure his comfort and protection.'
After further objections from defense counsel the court withdrew its decision and adjourned court until the following Monday. On the adjourned date statements were made by defense counsel and by attorneys representing various newspapers. These statements included citations of both statute and case law. The matter was fully presented. The Trial Judge retreated from his former ruling that he was excluding the press and public to protect Pat Ward. His final decision was stated as follows: 'It becomes the duty of the Court, ...