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Judge orders new trial in diner shooting

Judge orders new trial in diner shooting

A juror’s racist post-verdict comment has resulted in the trial judge ordering a new trial in the Ol

A juror’s racist post-verdict comment has resulted in the trial judge ordering a new trial in the Olympic Diner shooting case.

Acting Schenectady County Court Judge Richard Giardino handed down the order Tuesday morning, setting aside the guilty verdict against Michael Estella and ordering a new trial.

In his ruling, Giardino noted a multitude of considerations, including the reluctance of several witnesses to testify in the first trial, the seriousness of the crime — three people were injured in a diner packed with people — and the time and expense put into the case.

He also noted that after sitting through the initial trial, he found that the evidence of guilt was “overwhelming.”

Nonetheless, Giardino wrote that he felt compelled by the seriousness of the comment to order a new trial.

“The court must weigh and balance all of those considerations against the basic fundamental constitutionally guaranteed right to a fair trial,” Giardino wrote.

Giardino made the ruling after a December hearing on the issue to determine whether the comments from “Juror 6” were enough to set aside the verdict.

Prosecutor Amy Burock, to whom the statements were first made, said Tuesday that she was still studying the decision and formulating a response. An appeal is possible, she said.

Estella, 24, who is black, was convicted in the 2006 Olympic Diner shooting that injured three. The conviction came in September after a two-week trial, and many witnesses to the shooting were reluctant to come forward.

The jury, which had two black members, found that Estella was the one who fired into the diner filed with 20 people on the morning of Aug. 6, 2006.

Estella had faced 25 years up to as many as 47 years in state prison as a result of the verdict. He is expected to remain in custody pending any retrial.

Defense attorney Adam Parisi made standard motions after the verdict to set it aside. In one, he argued that one of the jurors acted as a weapons expert during deliberations. Giardino denied that motion. But prosecutor Amy Burock attempted to investigate that claim and she contacted Juror 6 by phone.

She reported to the court that Juror 6 told her he was distracted in court. When asked why, the juror said he was distracted by Burock’s “captivating beauty” and that she was “just like a real lawyer.”

The juror, who is white, responded to whether the weapons issue affected his verdict, “I guess I based my [decision] on race.”

But he also got key facts of the case wrong, saying that Estella was only identified by one person when he was identified by several.

When Burock called him back a few days later to tell him that she was going to report the conversation to the court, the juror said he had had a few drinks and that he had worded it poorly and wasn’t a bigot.

Giardino found Tuesday that the juror did make the offending statement, that he did not discuss it with fellow jurors but that it did rise to juror misconduct.

The juror, Giardino found, “failed to disclose a personal opinion” during pretrial juror questioning, preventing the defense from asking whether he could make his decision based on the evidence.

The juror’s assurances at the hearing that his decision was based on the evidence were not credible, the judge ruled.

“Such a statement of a race-based decision of guilt in a criminal case should not and cannot be excused due to intoxication or joking,” the judge wrote.

The judge cited prior cases in making his ruling, including one from 1982 in which a juror expressed racial hostilities during pretrial questioning but said he could put those feelings aside and was seated. That case was overturned on appeal after it was found that the juror’s assurances were not enough.

In the Estella case, the juror did not disclose his opinion on race at all, the judge noted.

Prosecutors also argued that there was overwhelming evidence of guilt and that it could be viewed as a harmless error. Such a view can only apply, Giardino ruled, with errors at trial that can be assessed based on evidence.

Giardino found that there was overwhelming evidence of guilt, but he couldn’t keep the verdict because that standard did not apply.

“The issue before this court goes directly to the right to have a jury free from preconceived notions and biases, one that will be fair and one that prior to the submission of evidence can guarantee to base its decision solely on the evidence,” Giardino wrote.

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