by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
All lawyers know, or should know, that you are not allowed to have ex parte communications with a judge. A similar prohibition applies to judges, who are prohibited from having ex parte communications with jurors after the jury is empaneled. The unforgiving nature of this prohibition was at the forefront of Weber v. Patel, a recent unpublished Appellate Division decision.
Weber was a personal injury case. After hearing the evidence, the jury deliberated for approximately 90 minutes before purporting to return a 4-2 defense verdict. The judge responded: "Not a valid verdict. Five to one or six to zero. You've got to go back." The jury deliberated for a few more hours that day but went home without reaching a verdict. They returned the next morning at which point the judge had an ex parte conversation with them. According to the judge, one of the jurors asked the judge what would happen if they remained deadlocked. The judge responded that he would "worry about that in three days."
The judge told counsel about this conversation after it happened, but then confided that he would not really let the jury deliberate for three more days. Instead, he indicated that if the jury did not reach a verdict by the end of that day, he would likely find the jury "hung" and declare a mistrial. A little more than one hour after the judge spoke with the jurors, however, they returned a unanimous defense verdict.
Defendant moved for a new trial, arguing, among other things, that the judge's ex parte conversation with the jurors was prejudicial and justified a new trial. The trial court denied the motion, rejecting the argument that his "clarification of the court's procedural rules somehow coerced the jury to reach the verdict," and holding that it was his duty to clarify these rules and there was "no rational indication that the way in which [he] carried out that duty had any impermissible effect on the jury."
The Appellate Division disagreed and reversed. It began by "reiterating" the New Jersey Supreme Court's "unequivocal declaration that ex parte discussions between the trial court and jurors are inappropriate and improper, both during trial and after the jury is discharged." While it acknowledged that not every ex parte communication required a new trial, the standard applied to these situations ensures that nearly all will. When the trial record "affirmatively reveals that the defendant was prejudiced" by a judge's ex parte communication, reversal is required. Makes sense. But, if the record does not show whether or not the ex parte communication was prejudicial, then prejudice is presumed. And, only where the record "affirmatively shows" that the communication had "no tendency to influence the verdict," will the verdict remain undisturbed. In other words, all doubts are resolved in favor of prejudice and party arguing that there was no prejudice bears a heavy burden.
In Weber, the Appellate Division held that, at best, the record did not not "demonstrate the trial court's ex parte communication had no tendency to influence the verdict." It noted that the trial court did not explain "why it would have suggested to the jury it would consider a deadlock after the jury had deliberated for three days." Moreover, it seemed to find the the timing of the jury's verdict, and its proximity to the judge's ex parte communication, dubious — "[w]ithin one hour of the court's statement, the jury announced its unanimous verdict." Accordingly: "Prejudice [was] presumed. The verdict [could not] stand."