Jury was tainted: lawyer

Martin Heidgen's murder conviction ought to be set aside because jurors broke the rules during their deliberations by discussing the case with their families, meeting secretly to confer and considering facts that were off limits, Heidgen's lawyer claims in a motion.

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 wedding in Bayville. Killed in the crash were the driver, Stanley Rabinowitz, 59, of Farmingdale, and Katie Flynn, 7, of Long Beach, who had been a flower girl in her aunt's wedding.

In the motion filed Wednesday, Heidgen's attorney, Stephen LaMagna of Garden City, is asking acting State Supreme Court Justice Alan Honorof to grant Heidgen a new trial based on the allegations of juror misconduct. Prosecutors have about two weeks to respond.

"It has become abundantly clear that the verdict here was not based solely upon the evidence presented at trial, but rather upon an accumulation of outside influence and misconduct," LaMagna said.

But prosecutors said LaMagna's allegations are unfounded and should not shake what was a correct, unanimous verdict.

"We're confident the jury followed the judge's very clear instructions before reaching its unanimous verdict," said Eric Phillips, spokesman for the Nassau district attorney's office.

Experts said it is very difficult to get a judge to set aside a verdict based upon irregularities in jury deliberations. For the most part, they said judges don't want to know what happens behind those closed doors.

But because LaMagna's allegations are so specific and because they are backed up by affidavits, experts said it's possible that Honorof will hold a hearing to learn more about what went on.

"If the jury decided the case based on something other than the evidence, that has bounce," said Martin Adelman, former chairman of the criminal justice section of the New York State Bar Association.

The day after the verdict, jury forewoman Loy Malcolm of Baldwin said she remained convinced that Heidgen was guilty of manslaughter, not murder. She said she caved to intense pressure from her fellow jurors after Honorof sequestered them on their fifth day of deliberations.

In his motion, LaMagna said pressure wasn't the only thing influencing Malcolm and others to change their votes from manslaughter to murder.

He said one juror, Anthony Macchiarulo, ignored the judge's instructions not to discuss punishment and told his fellow jurors what he believed Heidgen's sentence would be if he were convicted of manslaughter. In sworn affidavits included with LaMagna's motion, both Malcolm and another juror, Craig Cavaco, said many jurors thought that the sentence Macchiarulo mentioned was too light, and that influenced them to vote for murder.

James Acker, a criminal law professor at University at Albany, said that allegation could be particularly damaging, especially if it turns out that Macchiarulo did his own research to learn about sentencing guidelines in Heidgen's case.

A woman who answered the phone at Macchiarulo's home said he had no comment.

LaMagna also said jurors disobeyed Honorof's instructions not to discuss the case with friends or family, or even with each other outside the jury room. He said when jurors broke for a weekend during their deliberations, at least two of them said they planned to talk to family members about the case - an infraction LaMagna said was serious because those family members had no doubt been hearing media reports about the case, from which jurors were supposed to be shielded.

He also said two jurors, Malcolm and Charmen Brown, met secretly at a Baldwin supermarket to discuss the case during deliberations. Neither Malcolm nor Brown could be reached for comment yesterday.

Finally, LaMagna said in his motion that one juror, Michele Vargas, told her fellow jurors that Heidgen had a prior drunken driving conviction. Nothing about Heidgen's record was admitted as evidence in the trial. In fact, he had been arrested for drunken driving, but the charges were later dismissed.

Vargas, who did not return calls for comment, also told jurors that she was planning to write a book about the trial, according to Malcolm and Cavaco. Jurors are not allowed to discuss any plans to profit from the trial during deliberations.

Chris Tangney, Katie Flynn's grandfather who was in the limousine at the time of the crash, said he is not concerned by LaMagna's motion.

"I don't see how this would have any bearing on the case," he said. "This happens all the time."

DEFENSE SAYS:

The verdict is tainted because jurors discussed the case outside deliberations and decided the case, in part, on issues not in evidence, such as the possible sentence Heidgen could get for manslaughter.

PROSECUTION SAYS:

Motions to set aside verdicts are extremely common, and prosecutors are confident that jurors did not break the rules of deliberation in this case.

EXPERTS SAY:

It takes a lot to set aside a jury verdict based on irregularities in jury deliberations, but if the defense can prove that jurors reached their verdict based on something other than the evidence presented in the courtroom, the judge may hold a hearing on the issue.