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Trial Severance - Criminal Defense - Pretrial Publicity - Confrontation Clause


The issue before the Court is whether a joint trial should proceed (judicial economy) or where the trial should be severed (because of prejudice to one or more of the Defendants). In making its decision, the Court heavily relies upon the Sixth Amendment Confrontation Clause, through Crawford and its progeny, and the Defendants’ Due Process Rights to a Fair Trial. In so doing, the Court notes that

Severance may be granted for cases in which multiple defendants have antagonistic defenses. People v. Mahboubian, 74 NY2d 174 [1989]. Even if the charges against multiple defendants are properly joined in a single indictment, a trial court may grant severance “for good cause shown,” from which a court finds that a “defendant will be unduly prejudiced by a joint trial.” CPL §200.40(1). “Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant severance.'” People v. Mahboubian, 74 NY2d 174, 183, citing, People v. Bornholdt, 33 NY2d 75, 87 [1973].

Severance is not required, even in those cases in which there is hostility between or amongst the parties, different trial strategies, or inconsistencies in each defense. People v. Cruz, 66 NY2d 61 [1985], rev’d on other grounds and remanded, 481 US 61. “It must appear that a joint trial necessarily will, or did, result in unfair prejudice to the moving party and substantially impair his defense.” Id., at 73, 74. In determining whether defenses are sufficiently antagonistic, therefore requiring severance, a court looks to two tests. In the first, a court must determine whether the defenses are logically inconsistent — whether the core of each defense is rationally irreconcilable with the other. See United States v. Romanello, 726 F2d 173 [5th Cir. 1984]. In the second test, a court must consider whether there is a danger that a jury will unjustifiably infer a defendant’s guilt because of the conflicting and irreconcilable defenses. See Rhone v. United States, 365 F2d 980 [DC Cir. 1966]. In New York, more specifically, “severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt.” Mahboubian, 74 NY2d 174, 184.

The Court notes that there are some significant differences between the Defendants in this case, both of whom jointly submit a motion to sever the trial. Indeed, the Court noted that Jenkins was arrested for DWI and he “perceived he was subjected to racially motivated rude and inappropriate treatment by police officers. He responded with an emotional and angry tirade, which included many racial slurs against white people and was filmed by the Monticello Police Department on video tape that received national media attention.” Pp. 3. In addition, statements and/or admissions were made during a criminal investigation. Jenkins argues that if they “are tried together…neither defendant will have an opportunity for meaningful confrontation, since neither defendant can call or compel the other defendant to testify at the trial.” Pp. 3. Both Defendants agree that there may be a Crawford, 6th Amendment Confrontation Clause issue:

“Snowden, like Jenkins, expects various non-law enforcement witnesses to be called to testify at the trial — if the co-defendants are tried in a joint trial and lay witnesses testify regarding a conversation between them and Jenkins, Snowden argues he would be unable to effectively deal with such testimony, unless Jenkins testified, which he cannot be forced to do.” Pp. 4. In addition to Confrontation Clause concerns, there are a host of concerns with racially charged comments, pretrial publicity, evidence being applicable to one but not the other defendant and, of course, the problem of both defendants being, ipso facto, associated with one another by the virtue of a joint trial.

There must be unfair prejudice resulting from a joint trial to order a severance. “The Prosecution points out that severance is not required when there is hostility between defendants, differences in trial strategy, or inconsistencies in defenses.” Pp. 5. The Prosecution argues that the defendants have not met their burden to sever the trial and the Court disagrees:

While this Court acknowledges that severance is governed by many factors, including judicial economy, this Court opines that the arguments raised by both defendants support severance in the interest of judicial fairness at jury trial. At the outset, this Court finds both defendants’ arguments regarding racial bias are insufficient to support a motion for severance. There are, however, clearly potential Sixth Amendment confrontation issues under Crawford, should the Prosecution call non-law enforcement witnesses to testify to out of court inculpatory statements made by either defendant…[In addition,] this Court is concerned about the realistic possibility of a jury attributing the negative publicity concerning Jenkins to Snowden, even with the best attempts to eliminate any potential prejudiced juror. The adverse and negative publicity associated with the co-defendant Jenkins is of Biblical proportions…The potential for “guilt by association” with Jenkins cannot be avoided in a joint jury trial with Snowden.

Out of “an abundance of caution,” the Court severs the trial. The case is The People v. Jenkins, 156S-2014, NYLJ 1202745219354, at *1 (Co., SUL, Decided November 30, 2015).

Severance of Trial Ordered where Pretrial Publicity and Confrontation Clause Concerns may be Prejudicial - Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA) for criminal defense, injury, accident, addiction and accountability matters.


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