It was exactly what the judge warned the jurors not to do.
But that didn't stop juror number 12, Johnna Lorraine, from sending and receiving about 7,000 text messages during a three-week-long murder trial, State v. Neulander, in Syracuse in 2015.1
"Make sure he's guilty," Lorraine's father told her in a text on the first day of trial.
During the trial, a friend asked Lorraine if the defendant was guilty and she replied: "Can't tell."
In a sure sign of the times, some of her responses were with emojis.
"Even though the court told the jurors 45 times not to engage in third-party communications, Lorraine exchanged messages with friends and family about the case throughout the trial," Neulander's appellate lawyer, Alexandra Shapiro, of Shapiro Arato in New York City, wrote in court documents.
It is common practice for the judge to advise jurors not to speak with anyone about the case while they serve on the jury, but jurors do still have access to their cell phones in the jury box.
Lorraine not only went on a text messaging spree throughout the trial, but defense lawyers claim she also read articles about the case online. During the trial, jurors are not allowed to read, watch or listen to media stories relating to the trial they are assigned. Not until a trial is over are jurors allowed to read media reports about the case.
To say the Neulander case is high profile is an understatement, considering that the website for the local Syracuse newspaper, the Syracuse Post Standard, has more than 300 articles about the case online, according to defense lawyers. Dateline NBC and 48 Hours also did segments on the case.
If not for the alternate juror calling a defense lawyer about Lorraine's conduct after the verdict was announced, the doctor's murder conviction and 20-years-to-life sentence likely would have been upheld. On appeal, the Supreme Court, Appellate Division, Fourth Judicial Department, agreed that the evidence was sufficient for the conviction but ordered a new trial due to juror misconduct.
Onondaga County District Attorney William J. Fitzpatrick has appealed the ruling to the state's highest court - a ruling that could go a long way toward determining how future juror misconduct is handled in the digital age of smart phones and instant access to news.
He argues in court documents that even if Lorraine's conduct "constituted a misstep, or even misconduct, that misconduct is significantly outweighed by the substantial proof of guilt presented at trial." As of press time, briefs had been filed but oral arguments had not yet been scheduled.
At the time of trial, many people in the Syracuse area were still in shock that Dr. Robert Neulander, a prominent OB-GYN, stood trial for killing his wife of 30 years, Leslie, in their home in 2012. The former nurse, local philanthropist and mother of two adult children had died from a head injury.
On the morning of Sept. 17, 2012, Neulander claimed his wife had fallen in the shower of her master suite bathroom in their 8,000-square-foot mansion, that she had a history of vertigo and was prone to falls, according to court documents. Paramedics arrived at 8:31 a.m. but she was pronounced dead 11 minutes later.
The Onondaga County Medical Examiner initially opined that the death was an accident but changed that determination. It was later concluded that Leslie's death was a homicide due to blunt force trauma to the head. In fact, the former chief medical examiner in Onondaga County, Dr. Mary Jumbelic, who was a family friend of the Neulanders, hoped to dispel rumors and suspicions about Neulander and offered to review the case. She didn't like what she discovered.2
Jumbelic ultimately concluded it was a homicide, which launched Fitzpatrick's investigation and included additional opinions from national pathologist experts. Jumbelic also testified at trial for the prosecution.
Fitzpatrick also pointed out that the couple's daughter, Jenna Neulander, was home at the time and in her call to 911, exclaimed, "Oh my God, there's blood everywhere!"
Authorities believe Neulander murdered his wife on the bed, covered it up by carrying her into the bathroom to make it look like her injuries were from an accidental fall and then after calling for his daughter, carried her back to the bedroom to appear as though he was trying to resuscitate her.3
Neulander was later arrested, indicted and convicted of second-degree murder and tampering with evidence. He was sentenced to 20 years to life in prison.
'Make sure he's guilty'
According to court documents, at the end of the second day of jury deliberations, defense counsel observed Lorraine speaking with Elisabetta DiTota, a previously discharged alternate juror. He requested that the judge question Lorraine before deliberations resumed.
The next morning, July 30, 2015, Lorraine stated that she had not discussed the trial with DiTota and assured the judge that she had not had any discussions about the case with anyone except the other jurors during deliberations. The jury resumed deliberations and returned a verdict of guilty that same day.
After the verdict was announced that day, DiTota approached defense counsel and said that Lorraine had been inappropriately communicating during the trial. Neulander's trial lawyer, Edward Menkin, soon filed a motion to set aside the verdict. The trial judge, Thomas J. Miller, scheduled an evidentiary hearing on the motion and ordered a forensic examination of Lorraine's phone.
DiTota claimed that at the start of trial, Lorraine attempted to show her a media alert on her phone about jury selection. She also claimed that during a break in Jenna Neulander's testimony, Lorraine announced in the jury room that her friend had sent her a text message about a Twitter report that the court had taken a break because one of the jurors was too upset to continue. Lastly, she claimed that she spoke with Lorraine after the second day of jury deliberations and Lorraine told her that the deliberations were stressful and that the jury was evenly divided.
In an affidavit, Lorraine denied most of DiTota's allegations, claiming she only shared the Twitter report with DiTota, not the other jurors, and denied discussing the deliberations with her.
Defense lawyers obtained a subpoena for a forensic examination of Lorraine's phone, which they say revealed that she had engaged in a series of text messages with family and friends about the case; deleted almost all of the pertinent text messages in question; erased her phone's internet browsing history but left evidence she visited a local news website; and had made false and misleading statements to the court.
In addition to the "Make sure he's guilty" text from her father on the day she was selected to serve on the jury, a friend twice referred to Neulander as "scary" and asked, "Is he scaryyyy" and "Did you see the scary person yet." Lorraine said she had seen Neulander "since day 1" and continued texting with this friend throughout the trial. At one point, Lorraine was asked if Neulander was guilty and she said she couldn't tell yet.
The day Jenna Neulander testified, Lorraine exchanged dozens of messages with another friend who said she had read so much about the case she knew every publicly available detail. The friend said she was anxious for someone to testify against Jenna. In a message that she later deleted, Lorraine responded that "no one will testify against her!" and explained that the only opportunity for the prosecution to question her would come on cross-examination.
Later that day after the prosecution cross-examined Jenna, the same friend wrote that her "mind [was] blown that the daughter [was not] a suspect."
According to defense lawyers, a playful back-and-forth then ensued in which Lorraine sent the friend a "see no evil, hear no evil, speak no evil" emoji and then the friend asked, "[or] is she?" with an accompanying emoji. The friend then continued her suspicions about Jenna's involvement in the alleged murder.
When confronted with the text messages at the evidentiary hearing, Lorraine admitted that she knew these texts violated the judge's rules.
Despite finding that the juror had engaged in serious misconduct, the trial judge upheld the verdict. However, on appeal, the Appellate Division, in a 3-2 split decision on June 29, 2018, did overturn the verdict due to her misconduct.4
"[T]he evidence at the hearing established… that juror number 12 received a message from her father that arguably implored her to ensure defendant's conviction, repeatedly disregarded the court's instructions, and actively concealed and was untruthful about her numerous violations of the court's instructions," the majority ruled. "These facts were not controverted at the hearing. We conclude that every defendant has a right to be tried by jurors who follow the court's instructions, do not lie in sworn affidavits about their misconduct during the trial, and do not make substantial efforts to conceal and erase their misconduct when the court conducts an inquiry with respect thereto. These rights are substantial and fundamental to the fair and impartial administration of a criminal trial."
Neulander, 66 at the time of the ruling, posted bail and was released from prison after three years while he awaits the fate of his case on appeal.5 Either the verdict will be reinstated or if the appellate decision is upheld, the prosecution must decide whether to retry the case.
The Hon. Barry Kamins, retired New York Supreme Court judge, who now practices at Aidala, Bertuna & Kamins, said this case brings the digital age directly into the courtroom.
Kamins noted that judges have long been instructing jurors in criminal cases not to discuss it with anyone else. "But for the last ten years, judges have also been instructing jurors not to have any electronic communications, such as texts, internet chats, about the case," said Kamins. "Courts have realized that we're living in a digital age and it's so easy to communicate and be contacted without anyone knowing about it."
Kamins said the Neulander case is one of the first cases in New York that's reached the court of appeals pertaining to digital communications.
"If the court affirms the lower court decision, it's going to send a very strong message to trial courts that you've got to be extra vigilant about this," said Kamins. "People are communicating instantaneously. How can trial judges take more precautions about this? It's a good question.
"I don't think they'll get to the point where they'll require jurors to turn in their cell phones at the beginning of the day and get them back at the end of the day," continued Kamins. "In the end, you have to rely on the good will of the jurors to follow the judge's instruction."