Court: Man in 2011 Schenectady shootout must have new trial

PHOTOGRAPHER: Steven Cook

A Brooklyn man convicted on charges related to a 2011 shootout must get a new trial after an appeals court ruled that a judge failed to fully consider a defense race-based challenge during jury selection.

The Appellate Division of state Supreme Court this week found that the presiding judge in the case against Michael Grafton did not complete a hearing on defense allegations that prosecutors improperly excluded a black woman from the jury based on her race.

The prosecution offered its race-neutral explanation, but the defense didn’t get to argue further, the appeals court found. Now-retired Judge Richard Giardino instead ruled prematurely for the prosecution, finding no improprieties, the appeals court wrote.

Since Giardino is no longer on the bench, sending the case back down for further consideration would be difficult, the court said. “Under all the circumstances,” the court wrote, “we are persuaded that reversal is required.”

Schenectady County District Attorney Robert Carney said Friday that his office is contemplating asking the Appellate Division for an intermediate step, saying a solution can be found to complete the hearing with a different judge presiding and without a full reversal at this point. Then the issue could be reconsidered with all information in hand.

Grafton’s attorney said he would oppose any such motion.

The case concerns the 2013 conviction of Grafton, now 44, who is black. Grafton stood trial on accusations he fired on two men on Close Street in Schenectady on Oct. 9, 2011. One of those men, Calvin Jones, returned fire in what prosecutors concluded was self-defense.

Jones was uninjured, but he illegally possessed the gun. He pleaded guilty to a weapons count in exchange for eight years in prison. The other man, Winston Halliburton, suffered a graze wound to his neck.

Grafton himself suffered the worst of it. The return fire hit Grafton twice in the torso and once in the leg. Grafton fled in his vehicle and crashed as he tried to get himself to the hospital.

The jury, which was all white, returned a multifaceted verdict. The jury acquitted Grafton of attempted murder of Halliburton. It deadlocked on whether Grafton tried to kill Jones. The jury then convicted Grafton on one count of first-degree attempted assault and two counts of second-degree criminal possession of a weapon.

The Appellate Division focused on the defense jury selection race allegations. The court also briefly noted concern with the prosecution extensively using Grafton’s street name “Murda” and introduction at trial of evidence inconsistent with a pretrial ruling.

The main juror issue focused on two nonwhite prospective jurors, one a black woman and the other of Asian descent. Prosecutors told the court they dismissed the black woman because the father of her children had been prosecuted by the Schenectady County District Attorney’s Office for robbery and was “presumably” in prison, the appeals court wrote. They dismissed the Asian juror because they preferred other jurors after her to fill the final slot.

Grafton’s defense on appeal argued that the prosecutor’s account embellished on the black woman’s comments and that prosecutors did not challenge a white juror who said her sister had been in and out of trouble on felonies for years. Giardino, however, cut the inquiry short, failing to explore the issues at the time and ruling for the prosecution.

Arguing for Grafton was Cohoes attorney Mitch Kessler. Kessler said Friday that he will oppose any prosecution motion to alter the decision.

“Clearly they signaled that they had some concerns about the way in which these peremptory challenges were lodged,” Kessler said, noting the court’s other concerns.

Asked if prosecutors could resurrect the deadlocked attempted-murder count, Kessler said he believed they could but they would have to indict it again. Carney could not be reached for comment later on whether that’s something his office would consider.

Earlier, Carney said all the cases before with similar incomplete juror race arguments were sent back to complete the record. That could be done here, he said, with a new judge reviewing the transcripts and possibly with Giardino’s input as a witness.

“They’re criticizing Judge Giardino for skipping a step,” Carney said. “I’m saying they’re skipping a step.”