Poison Lunch Claim Puts Goldman Code Case on Mistrial Path

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Former Goldman Sachs Programmer Sergey Aleynikov
Sergey Aleynikov, a former Goldman Sachs Group Inc. computer programmer, leaves federal court in New York, on Dec. 9, 2010. Photographer: Jin Lee/Bloomberg

Two jurors were removed from the trial of former Goldman Sachs Group Inc. programmer Sergey Aleynikov after one accused the other of trying to poison her, the latest twist of jury deliberations even the judge called unusual.

The second prosecution of Aleynikov for taking the bank’s high frequency trading code was thrown into doubt when a female juror said a male juror conspired to taint her lunches. While both were excused Wednesday, Aleynikov’s lawyer, Kevin Marino, had yet to agree to replace them with alternates.

If he refuses, the judge could order a mistrial.

“As you can see your numbers have been diminished,” New York Supreme Court Justice Daniel Conviser told the remaining jurors before they broke for lunch. “We want to see this process come to fruition.”

He said the parties must decide whether they can legally continue with 10 jurors, or call upon the three alternate jurors who sat through the trial. Aleynikov, wearing a dark suit, paced the courtroom at various times during Wednesday’s proceedings.

If the case is derailed, it will be the second failure in three years for prosecutors. Aleynikov’s conviction on federal charges was overturned by an appeals court after he spent a year behind bars. Aleynikov, 45, said he took the code but that his actions were a violation of bank policy, not a crime.

Jurors in the state prosecution, brought by Manhattan District Attorney Cyrus Vance Jr., have been deliberating since April 22. Aleynikov is charged with taking the firm’s code in 2009 when he left for a new job with Teza Technologies LLC, the firm founded by former Citadel LLC high-frequency trading chief Misha Malyshev.

Juror Confusion

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.

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