MAYS LANDING — The trial of six people accused of voter fraud in the 2009 Atlantic City Democratic mayoral primary was sidetracked Tuesday as the state moved to have a juror dismissed — or a mistrial declared — amid allegations she knew a defendant.
But after holding a hearing that took most of the afternoon, Superior Court Judge Raymond Batten found there was no evidence of impropriety, although he did question the motives of the sheriff’s officer who made the claim.
City Councilman Marty Small and five others are on trial for allegedly disenfranchising voters during Small’s failed mayoral bid. Six more defendants are expected to be tried in the case next year, and two others previously pleaded guilty.
“It wasn’t even close,” Batten said after finding there was no proof that defendant Tracy Pijuan turned to his attorney during jury selection several weeks ago and said he knew a potential juror in the courtroom at the time.
The woman eventually was picked for the jury and currently sits in seat 6. Her name is not being published because she remains a juror.
Sheriff’s Officer Frank Lupperger approached Deputy Attorney General Anthony Picione on Tuesday, saying he had seen Pijuan and the woman make eye contact and then heard Pijuan tell his attorney, Jill Cohen, that he knew her.
Cohen denied her client ever said anything to her and indicated that if the conversation had taken place, she would have done her job as an officer of the court and alerted someone.
Lupperger — who started with the Atlantic County Sheriff’s Office on Aug. 1 — said he noticed the woman and Pijuan make extended eye contact several times during the 35 minutes or so he was in the courtroom, and that they even smiled and gestured to one another.
But during cross-examination, Michael Schreiber — who is representing defendant LuQuay Zahir — questioned how the young officer would have seen Pijuan’s face when Pijuan would have been turned away from him to look at the woman.
“I never said I saw his face,” Lupperger replied.
“That’s not the case as I recall the officer’s testimony,” Batten said later.
The officer admitted to previous negative interactions with Pijuan and co-defendant Floyd Tally, but testified he had no ill will for Pijuan and insisted he was telling the truth.
He said he waited to say something because he had alerted the head of jury management, Maria Waldman, when it happened, and he didn’t know the woman in question had been picked as a juror until he was back in the courtroom Tuesday, his first time back since the trial started.
However, Waldman testified that the officer told her only that there was eye contact — which she said is not unusual during the selection process as potential jurors look to make sure they do not know anyone involved in the case. But she said she did warn Pijuan and then told Cohen as a courtesy to the lawyer.
Waldman said she was never told about the allegation that Pijuan told Cohen he knew the woman.
The juror, who was called in once for questioning and then again to testify under oath, said she knows none of the defendants nor anyone on the list of potential witnesses. She was not told about the allegations.
The woman smiled throughout most of her testimony, saying she smiles when she’s nervous.
“I smile a lot at people in general,” she said. “It’s just my personality, I guess you would say.”
The week-old trial has moved slowly, with the state’s first witness — lead investigator Scott Orman — still in the middle of his direct testimony. That will continue today. Then the six defense attorneys will have the opportunity to cross-examine him.
The day started with the 18 jurors being questioned individually after it was discovered a defense attorney not related to the case had told two of the defendants and at least one juror a joke during a lunch break.
No one was removed as a result, but later the jury was removed from the courtroom again and the sheriff’s officer told Batten what he allegedly saw.
The jury went home without hearing any testimony.
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