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Overturned verdicts rare but not unheard-of

BY ANN GIVENS | Newsday Staff Writer

9:20 PM EST, January 3, 2007

It's not easy to get a verdict thrown out over jury misconduct, and no one knows that better than Robert Gottlieb.

After his client, Martin Tankleff, was convicted of killing his parents in 1990, Gottlieb told a judge that one juror had gotten regular news reports on the case from his wife and made hand signals to the prosecutor across the courtroom to tell him how deliberations were going. Suffolk County Court Judge Al Tisch allowed a hearing on the issue, but ultimately, he let the verdict stand.

Now it looks like jurors in another high-profile murder case -- the Martin Heidgen drunken driving case -- might be asked to to come back to court to explain their behavior.

Heidgen, 25, of Valley Stream, was convicted of second-degree murder in October for driving drunk the wrong way on the Meadowbrook Parkway in July 2005 and smashing into a limousine as it returned from a Bayville wedding. The limo driver, Stanley Rabinowitz, 59, of Farmingdale, and Katie Flynn, 7, of Long Beach, who had just served as a flower girl in her aunt's wedding, were killed in the crash.

Heidgen's lawyer, Stephen LaMagna of Garden City, last month asked Acting State Supreme Court Judge Alan Honorof to throw out Heidgen's verdict because he said he'd learned that jurors broke the rules in several ways: They discussed off-limits information about Heidgen's prior record, debated his possible jail sentence and talked about the case with family members, he said. One juror even made plans to write a book, LaMagna said.

A prosecutor agreed that a hearing should take place to find out whether jurors discussed Heidgen's prior record, though he said he's confident that the verdict is not in jeopardy. Honorof now must decide whether to grant a hearing.

Experts say it's rare for a judge to hold a hearing on juror misconduct, and still rarer for a judge to take the next step and throw out a verdict for that reason. But it does happen.

In his motion, LaMagna cited several cases in which a new trial was held after a judge found that a jury had broken the rules. A judge threw out a Queens man's burglary conviction in 1967 after the judge learned that jurors had visited the crime scene and re-enacted the crime. Another man, convicted of driving the getaway car in a Queens robbery, got a new trial after a judge learned that one juror had conducted a "test" of visibility in her own van.

Experts said most judges are willing to overlook a lot when it comes to how a jury made its decision, even if it appears that some rules were broken. Judges are most bothered when jurors had information they weren't supposed to have, experts said.

"Often it has to do with consideration of information that was not before the jury," said Elisabeth Semel, a law professor at the University of California, Berkeley's Boalt Hall School of Law and a defense lawyer. "A verdict is something one does not disturb without good reason."

Gottlieb agreed.

"Judges are very reluctant to enter the jury room to have a bird's-eye view of actual deliberations," he said. "Deliberations have always been sacrosanct."