The retrial of an alleged MS-13 gang member on an attempted murder charge is slated to begin Tuesday after juror misconduct that included biased remarks sparked a mistrial.
Acting state Supreme Court Justice Helene Gugerty ended the first trial of Miguel Urias Argueta on Feb. 1 after an alternate juror reported the day before that he had heard the jury foreman make an inappropriate remark while the panel was together.
Gugerty granted the defense’s unopposed motion for a mistrial, saying it was based on “biased comments” by the foreman and “other conversations occurring about the case” among jurors in violation of court rules.
“The case will have to be tried again before another jury … Hopefully that jury will be fair to both sides,” she said.
Authorities have alleged Urias Argueta was among a trio of gang members who attacked a 19-year-old man in April 2017 in Westbury after he had refused to join MS-13.
The Nassau district attorney’s office says Urias Argueta, 20, of Westbury tried to stab the victim with a knife after the assailants approached him on bicycles.
One of the defendant's accomplices, Fidel Hernandez, then 23, swung a machete toward the victim's abdomen, according to prosecutors.
Authorities have also said Fidel's brother, Jose Hernandez, then 26, fired three gunshots that didn't hit their mark, with the victim escaping with just a scrape across his lower torso and a torn sweatshirt.
Prosecutor Brittany Gurrieri told jurors in the first trial that the three launched their attack outside the victim's Dover Street home after Fidel Hernandez declared: “The beast is going to take you.”
She said the expression was “a direct MS-13 threat,” adding: “It means you’re going to die.”
Jose Hernandez pleaded guilty to attempted murder and got a 6-year prison sentence, according to his attorney, Jeffrey Groder.
Fidel Hernandez's attorney, David Haber, said his client pleaded guilty to a criminal possession of a weapon charge and got a 4-year prison sentence.
But attorney Christopher Graziano, who represents Urias Argueta, said his client denies being part of a gang and didn't participate in the attack.
Jurors in the first trial heard testimony from the victim, a native of El Salvador who said he resisted MS-13’s recruitment efforts at Westbury High School. But the proceeding ended before they heard all the evidence.
The remarks that drew offense came to light a day after the victim testified he was illegally in the country and that local authorities had paid to relocate him to a safe house and helped him secure a temporary release from immigration custody.
The first alternate juror sent the judge a note saying he no longer wanted to serve. When questioned, he told Gugerty the foreman had made a comment that “we should all send them back."
“So that’s including me,” he said, before adding that he paid “a lot of taxes in Nassau County” as a business owner.
“You cannot talk for everybody, you know? Not every white person or black person is the same. Not every Spanish person is the same,” the alternate juror said.
He also reported other jurors were prematurely discussing facts of the case and said, "I don't want to be here."
When Gugerty asked why, he replied: “I’m pretty sure they’re going to think everybody is the same over here, a Spanish person, you know?”
Court records don’t reveal the individual identities of the jurors. But a transcript shows Gugerty began an inquiry of the rest of the jury, including two other alternate jurors.
Starting with the foreman, the judge questioned them one by one in her Mineola courtroom.
“You were overhead saying … that all these people should be sent back to their country, that you were disturbed that the police were paying for these people’s expenses and that it’s coming out of your taxes,” Gugerty said. “Is that an accurate rendition of what was overheard?”
The foreman said he didn’t remember his exact words but said he was “talking about the news that we hear,” and that “it costs a lot of money … for everybody to be here.”
He added: “It was nothing to do with the case itself.”
But the judge said she found the foreman “grossly unqualified” to serve on the panel and dismissed him.
At least nine other jurors said they heard the foreman make comments. Most of the jurors told the judge there had been some discussion of the case. Court rules say jurors can't talk about the case before testimony ends and deliberations start.
One juror told the judge that the foreman said “something about deportation,” another said it involved “immigration, stuff like that,” and yet another said the foreman “definitely was being biased.”
Graziano later applauded the first alternate juror’s actions, saying in an interview that otherwise his client “probably would have been found guilty by a jury who didn’t give him a fair trial.”
Prosecutors declined to comment on the case Monday.