Sergey Aleynikov’s lawyer agreed to let a smaller jury decide whether he broke the law when he copied Goldman Sachs Group Inc. high-frequency trading code before taking a new job.
In doing so, defense attorney Kevin Marino is betting the jury was on the way to acquitting the former computer programmer before deliberations were disrupted Tuesday when one juror accused another of conspiring to poison her lunch.
New York Supreme Court Justice Daniel Conviser threw both jurors off the panel. Marino could have objected to letting the deliberations continue with the smaller panel, or to allow for alternates, and attempted to force a mistrial. Instead, he agreed with prosecutors to let the jury go on, giving hope for a win to District Attorney Cyrus Vance Jr., who took up the state case after an earlier conviction won by federal prosecutors was overturned on appeal.
Conviser said he spoke with the remaining jurors, who he said believed the process has been constructive despite the distraction.
“As you can see your numbers have been diminished,” Conviser told the remaining jurors before they broke for lunch. “We want to see this process come to fruition.”
Both sides chose not to use any of the three alternate jurors who attended the trial. They weren’t part of the deliberations, meaning the jury discussions, which began April 22, would have needed to start from scratch if they were used.
Aleynikov was seen smiling and laughing with his lawyers outside the courtroom as jurors deliberated.
Aleynikov, 45, said he took the code when he was leaving Goldman but that his actions were a violation of bank policy, not a crime.
The deliberations have been marked by juror confusion over the laws being applied, with repeated questions and requests for clarification from the judge, and extensive re-reading of witness testimony.
This week, the jury’s tribulations took a bizarre turn. The complaining female juror had expressed concern about her ability to continue amid the poisoning allegations. The judge said she accused either the prosecution or the defense of conspiring with the male juror to poison her.
“There is no basis in reality for her to believe he is poisoning her,” Conviser said. The juror leveling the claim had said she wasn’t feeling well and that her thoughts weren’t coherent, the judge said.
The judge had said he called the juror who claimed to have been poisoned after she didn’t show up in court Tuesday. She said she was in a doctor’s office and almost hung up on him, according to a transcript of a closed-door session read by Marino.
The male juror she accused of poisoning her called his employer to ask if he could have a lawyer, Conviser said. The juror’s boss called the judge this morning to say he wouldn’t pay for the attorney.
The case is New York v. Aleynikov, 04447-2012, New York State Supreme Court, New York County (Manhattan).