Photo: Jason Doiy

Dr. Robert Neulander, who was found guilty of murdering his wife near Syracuse seven years ago, made his case before the state's highest court Thursday to have his conviction thrown out after a juror was found to have texted with friends and family during his trial.

Judges on the Court of Appeals suggested, during arguments, that affirming a lower court's decision to set aside his conviction could have broader implications for criminal law practice in New York.

"We've got to understand the rule we might be creating here," said Associate Judge Eugene Fahey.

An attorney for Neulander argued that a decision from the Appellate Division, Fourth Department granting him a new trial last year should be upheld by the high court. He was represented by Alexandra A.E. Shapiro, a partner at Shapiro Arato Bach in Manhattan.

"Because of the fraud, lies and deceit perpetrated by [the juror] there is no way to know both the extent of outside influence and whether she followed the [court's] instructions," Shapiro said.

Assistant District Attorney James Maxwell from the Onondaga County District Attorney's Office, which prosecuted Neulander, argued that there was no evidence the juror in question was influenced by her communications from others, or unlawfully discussed the specifics of the case.

"There is no evidence that she was anything but an impartial juror during the trial," Maxwell said.

Neulander, a prominent OBGYN from the Syracuse area, was convicted of murdering his wife and making it appear as if her death was an accident. Prosecutors from the Onondaga County District Attorney's Office charged him with second-degree murder and tampering with evidence.

Neulander had claimed that he dragged his wife's body from their bathroom to their bedroom to resuscitate her, but that those efforts were unsuccessful. Further investigation from prosecutors alleged that it was Neulander who caused her death by blunt force trauma.

He's maintained his innocence since her death in 2012, saying that she slipped and fell in the shower. Shapiro, while defending Neulander before the Fourth Department, noted that his wife had a history of vertigo, which may have caused her to fall.

The Fourth Department, in a split 3-2 decision, reversed Neulander's conviction last year based on information that a juror had received text messages from family and friends during the trial about the case.

That information was brought to light by an alternate juror, who wrote in an affidavit that the other juror had said, at various points, that she was communicating with others about the trial.

Neudlander's attorneys moved, based on the affidavit, for a motion to set aside his verdict through on a section of state law that allows as much based on improper conduct by a juror. A hearing on the motion revealed that the juror had received text messages from friends and family about the case while the trial was ongoing.

On one occasion, for example, the juror's father wrote to her in a text message to "Make sure he's guilty!" In other text messages, friends of the juror referred to Neudlander as a "scary person" and suggested that his daughter should also be a suspect in his wife's death.

The alternate juror wrote in their affidavit that, on one occasion, the other juror told the entire jury that she was texting with a friend of hers about what news reporters were saying about the trial on social media.

Neudlander's motion to set aside his verdict based on the juror's text messages was initially rejected by Onondaga County Court Justice Thomas Miller, who wrote that there was no basis on which to conclude those communications changed the outcome of the trial.

"While [the juror's] actions were imperfect, her intentions were pure and she took her role as a juror seriously," Miller wrote. "It is also abundantly and consistently clear that [the juror] refrained from discussing the specific facts of this case despite the repeated ill-advised and unsolicited inquiries of her friends in the cyberworld."

The Fourth Department reversed that decision, granting Neulander a new trial. The panel wrote that, regardless of the juror's intentions, evidence of her misconduct supported an argument for the verdict to be set aside.

For one, they wrote, the juror had deleted the text messages before she was ordered to turn her phone over to authorities. She had also signed an affidavit saying she had followed the trial court's instructions, which the Fourth Department wrote was "untruthful."

"[E]very 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," the Fourth Department wrote.

But affirming that decision could have wide-reaching implications for the practice of criminal law in New York, depending on how the Court of Appeals chooses to approach its ruling in the case, the judges warned.

Associate Judge Leslie Stein questioned whether granting Neudlander a new trial would prompt defense attorneys to seek a similar avenue toward exonerating their clients, particularly because there was no evidence that the juror initiated the text messages.

"Are we going to be interfering with a lot of trials and a lot of verdicts if we basically say, if someone contacts you about the trial, that's misconduct?" Stein asked.

Shapiro argued that the Fourth Department's decision was narrow enough that a ruling from the Court of Appeals may not have as wide an impact as predicted. In this case, she said, the juror in question received text messages but also failed to disclose those communications.

If she hadn't failed to tell the court about those messages, the outcome might have been different, Shapiro said.

"If that's all there was and she didn't lie to the court about those communications when inquired into it, then perhaps not," Shapiro said.

The Court of Appeals will likely hand down a decision on whether Neulander's conviction will be upheld—or tossed out in favor of a new trial—next month.

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