JURY MISCONDUCT OF JUROR LOIS WADE INTRODUCING EVIDENCE NOT PRESENTED TO THE FEDERAL GRAND JURY AND NOT PRESENTED BY THE GOVERNMENT OR THE DEFENSE AT MARINO’s SECOND TRIAL IN 1999 REQUIRING A MISTRIAL REVERSING AND VACATING MARINO’s CONVICTION AND SENTENCE, ORDERING A NEW TRIAL:
According to: Article III, Section 2, Clause 3 of the United States Constitution reads;”The trial of all crimes…shall be by a jury.” The Sixth Amendment of the U.S. Constitution states: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, BY AN IMPARTIAL JURY.”
Irvin v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct. 1639 (1961),
The Supreme Court affirmed, “in essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.”
The failure to accord an accused (Marino), a fair bearing violates even the minimum standard of Due Process.”[A] defendant (Marino) has a constitutional right to be tried by an impartial jury, ‘unprejudiced by extraneous influence, and when reasonable grounds exist to believe that the jury may have been explored, by asking the jury about it in its entirety.” U.S. v. Schwartz, 283 F.3d 76, 97 (2d Cir.2002) (quoting U.S. v. Moten, 582 F.2d 654, 664 (2d Cir.1978)(alterations in internal quote in original)).
The district court conducted several transcribed sessions with JUROR Miss Guillette, the jury Foreperson, about several instances during jury deliberation when JUROR #3 LOIS WADE, unlawfully introduced extrinsic (or extra-record) information that WAS NOT presented in evidence at Marino’s trial.The Court (Judge: Nathaniel M. Gorton, U.S. District Judge District of Massachusetts), conducted a transcribed session with JUROR #3: LOIS WADE, outside the presence of Defendant: Marino. JUROR: WADE, was subsequently dismissed for cause.
See Trial transcript DAY 29, pages 3-22. (U.S. v. Marino, CR-97-40009-NMG. (D.Mass.).
JUROR: WADE also violated her sworn oath, before, during and after Marino’s trial, when Judge Gorton, asked if any jurors knew anything about this case, via: TV, radio, newspaper articles or otherwise? JUROR: WADE answered No. When in-fact she did, as her girlfriend was a JUROR on Marino’s first RICO trial in 1998 and both her and her girlfriend, worked together for a law firm in Worcester, Massachusetts, and that JUROR: WADE’s hobby was following the MOB, and that her dream was to be a JUROR on a real live MOB trial so that she could convict them. This fact that JUROR: WADE confessed that it was her Hobby to follow and investigate the MAFIA, and that she has finally served as a juror on a real live case, as she stated to other jurors.
JUDGE GORTON, prevented other jurors from stating on RECORD in detail what JUROR: WADE stated about the ONLY TWO DEFENDANTS: Marino and Patti, a JUROR WADE told them during jury deliberations that her statements about Marino were extremely derogatory.JUROR: GUILLETTE, stated that she and several other jurors were questioning how fair and impartial that information was and the affect JUROR: WADE, was having on the other jurors.
See Trial Transcript DAY 29, page 6 lines 21-25, page 7, lines 1-3, 10-16. #CR-97-40009-NMG (D.Mass.).
The Court reiterated that several jurors were worried that JUROR: WADE would have an adverse effect on the panel of jurors.
See Trial Transcript DAY 29, page 8, lines 16-23.
Even though JUROR: WADE was removed for cause, she adversely affected the impartiality of the remaining jurors, in Marino’s case.
The United States Supreme Court held that “any private communications, contact or tampering directly or indirectly, with a juror during trial is “presumptively prejudicial.” Remmer v. U.S., 347 U.S. 227, 229 (1954).
Indeed, Marino’s Sixth Amendment Rights to confrontation and trial by an impartial jury were violated when a jury considers incriminating evidence NOT presented at trial.
See Loliscio v. Goord, 263 F.3d 178, 185 (2d Cir.2001). Marino has clearly demonstrated that JUROR #3 Ms. LOIS WADE, in-fact contaminated the rest of the jurors & heretofore ‘manifestly and erroneously’ bringing to question their impartiality. See Fama v. Commissioner of Correctional Services, 235 F.3d 804, 813 (2d Cir.2000).
The district court (Judge: Gorton), interveiwed all of the remaining jurors, after JUROR #3: LOIS WADE, was excused.
There were several errors in this inquiry and immediately after, the curative instructions was in error as well.During the questioning the trial Court failed to make sure that all the jurors could remain impartial in the face of the information that WAS NOT lawfully and properly in evidence, that was unconstitutionally disclosed by JUROR #3L LOIS WADE to the jury outside the record.
The answers by two JURORS:MS. GUILLETTE and JUROR: MS. CHERNOFF, were questionable about their impartiality.
See Trial Transcripts SYNOPSIS:The Court (Judge: Gorton): All right. I’ll aks you again is there anything that you learned that would affect your ability to decide this case solely on the basis of the evidence that you’ve heard in the Courtroom in this case?JUROR: MS. GUILLETTE: I do not believe so an again. (The Court cut off the juror & prevented her from further speaking)THE COURT: All right. And you’re confident that you can be fair and impartial and objective in your deliberations?JUROR: MS. GUILLETTE: I believe so.
See Trial Transcript DAY 29, page 29, lines 9-13, 22-25.
JUROR: MS. CHERNOFF, stated the same kind of evasive answer.
THE COURT: What I do want to know is there anything that you learned from the excused juror (JUROR #3: LOIS WADE), that would affect your ability to decide this case solely on the basis of the evidence admitted in the Courtroom?
JUROR: MS. CHERNOFF: No, I don’t believe that there is, ans again. (The Court Cut-off the juror from further speaking)
THE COURT: Would anything that she told you affect your ability to decide this case solely on the basis of the evidence that came in the courtroom during trial?
JUROR: MS. CHERNOFF: No, I don’t believe so.
Trial Transcript DAY 29, pages 47, lines 5-9, 25, page 48, lines 1-3.
These evasive answers and the Court’s cutting off their full responses, are opposed to the affirmative and absolute responses by the other jurors.
The word “BELIEVE” has several meanings one being ‘to suppose.’To suppose means to consider to be probable or likely. These words suggest uncertanty.See American Heritage Dictionary, Fourth Edition, copyright 2000 by Houghton Mifflin Company, published by Dell Publishing.
Considering the information that was imparted to the jury by the excused JUROR #3: MS. LOIS WADE from newspaper articles & previous juror from Marino’s First “RICO” Trial in 1998, and included biased and or prejudicial remarks against Marino(whom was the only Publicized Defendant left in the case in the Newspapers: Boston Herald and Boston Globe; Boston Magazine July 1997; Channel 5 “Chronicle” TV Program, since 1989, and previous juror from Marino’s first trial in 1998, and included biased and highly prejudicial remarks against Marino ,it requires that each juror know with certainty that they will remain impartial and unbiased.
See Trial transcript DAY 29, pages 12 starting at line 13 through 16 ending at line 17, page 31, lines 8-9, page 35, lines 6-7.United States v. Marino, CR-97-40009-NMG. (District of Massachusetts/Worcester).
Receiving information from Newspaper Articles, Magazines, TV programs, from Former JURORS in first trial etc…or from some outside source defeats the order NOT to read newspapers etc.
Receiving information from newspapers, magazines articles, TV programs, and or from some outside source defeats the order NOT to read newspapers or talk to people about the case and leads to opinions of guilt. See Irvin v. Dowd, 366 U.S. 717, 728 (1961); (Prejudicial pretrial publicity caused eight jurors to form opinions that defendant was guilty). Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir.1980)(“A juror’s statement that he remained impartial in the face of a potentially prejudicial influence is not conclusive”). Marino’s counsel (Robert Sheketoff) conceded the impartiality of the jurors against his beast judgment showing his ineffective assistance of counsel violations.
See Trial Transcript DAY 29, pages 27, lines 22-25, page 28, lines 1-3, page 50, lines 10-16.
The alternative JUROR: MICHAEL CALLAHAN, who replaced the excused JUROR #3: LOIS WADE, worked for both a Television Station that covered Marino’s trial and was a part-time correspondent for the Worcester’s Telegram Gazette, a Worcester, Massachusetts newspaper whom exclusively covered Marino’s First RICO trial in 1998 and SECOND RICO Trial in 1999, at the time of his appointment.
There is no way he the new alternative/appointed JUROR: CALLAHAN, can remain impartial and or unbiased in Marino’s ‘high profile’ Tow RICO trials in 1998 and 1999.Bias is always the result.
See Trial Transcript DAY 29, pages 55, lines 5-8, page 56, lines 7-25, page 57, lines 1-15.
Marino’s attorney “FAMED” Boston Lawyer: Robert Sheketoff, DID NOT object to JUROR: CALLAHAN, being the newly appointed JUROR due to his employment, constituting ineffective assistance of counsel.
The corrective instruction to the jury to remedy JUROR #3: LOIS WADE’s egregious intentional misconduct, was insufficient and would lead the jury to give credit to the information unlawfully, unconstitutionally introduced by JUROR #3: LOIS WADE, during JURY DELIBERATIONS concerning Marino’s Second RICO trial in 1999, which the evidence she improperly introduced WAS NOT presented by the government, the court or by the defense at Marino’s First Trial in 1998 OR Second Trial in 1999.
THE COURT: (JUDGE: NATHANIEL M. GORTON): The dismissed JUROR (JUROR #3: LOIS WADE), may have told you some things that WERE NOT IN EVIDENCE. Whether they are true or false–in whole or part, is totally irrelevant to your deliberations and should NOT be discussed or considered in anyway, nor should you discuss the circumstances surrounding the dismissal of JUROR (#3) (LOIS) WADE or any other information that you may have been told that WAS NOT IN EVIDENCE.
See Trial Transcript DAY 29, page 59, lines 7-13.
These instructions leave the JURY to draw their own inferences and conclusions about the extra-record, NOT IN EVIDENCE during Marino’s trial.A mistrial should have been declared and at least requested by Marino’s Counsel: “Robert Sheketoff” , whom representation fell below an objective level of reasonableness because he failed to question the impartiality of the TWO JURORS: MS. GUILLETTE, and Ms. CHERNOFF, due to the uncertainty of their answers. Marino’s Counsel also failed to object to the alternative JUROR MR. CALLAHAN, based on his employment with the Television Station and the Newspaper Worcester’s Telegram Gazette.Marino’s counsel failed to move for a mistrial and failed to strike the three JURORS mentioned supra. The result would be a mistrial, which required empanelling a NEW truly impartial jury.At the very least, replacement of the three jurors above would create a better chance of the jury being impartial in light of the previous JUROR’S MISCONDUCT.
Marino’s trial counsel’s failure to strike JUROR #3: LOIS WADE, and to object to the jury receiving evidence from her, which WAS NOT presented at trial or in evidence by the government or Marino’s clearly and concededly violated Marino’s Sixth Amendment Right to Effective Assistance of Counsel. Required under Strickland v. Washington.Marino’s Counsel Robert Sheketoff failed to protect Marino’s right to a fair and impartial jury trial there by, rendering ineffective assistance of counsel. Relief Requested: Reverse and vacate Marino’s conviction and sentence and ORDER A NEW TRIAL.