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SETH JACOBS IS VICTIM OF JUDGE'S BIAS, LAWYER SAYS DEFENSE ATTORNEY CLAIMS TRIAL UNFAIR

Seth Jacobs was denied a fair trial because a judge's bias toward Mary Kate O'Connell helped jurors reach "an unlawful verdict," Jacobs' attorney charged in a unusually harsh motion to set aside an $800,000 verdict against Jacobs.

Defense lawyer Richard T. Sullivan cited a list of 33 improper rulings or errors he said were committed by State Supreme Court Justice Thomas F. McGowan during the monthlong civil trial.

On Nov. 16, the jury held Jacobs responsible for assaulting Ms. O'Connell but absolved his parents, Max and Helen Jacobs, of responsibility for the assault in their former Nottingham Terrace home.

Sullivan included a rare allegation of impropriety against a judge, saying that a young woman seen fraternizing with the O'Connells during jury deliberations twice walked through the courtroom toward McGowan's chambers.

Sullivan said McGowan told him the woman was his son's girlfriend.

"I found it incredibly indiscreet that a person so close to the judge could be friends with the plaintiff and her family," Sullivan charged.

"An appearance of impropriety is the same as an impropriety," he continued.

He also accused the judge of "coaching" Ellen M. Krebs, Ms. O'Connell's attorney, and charged Ms. Krebs had prejudiced the jury by making exaggerated claims about the evidence during her opening statement.

Ms. Krebs responded to Sullivan's charges as "unsubstantiated attacks upon the integrity of plaintiff's counsel and the court that go beyond the bounds of presenting a legitimate defense."

McGowan, who denied the motions to set aside the jury's verdicts on Monday, declined through his court clerk on Thursday to comment on Sullivan's accusations. McGowan is retiring at the end of December and is barred by judicial canons from responding outside the courtroom.

"I think the affidavit speaks for itself," is all Sullivan would say. "We intend to raise these issues in the Appellate Division."

McGowan was unusually terse in the brief hearing Monday, and snapped at Sullivan when the defense lawyer attempted to ask the judge's clerk a question afterward, ordering Sullivan to speak to him if he had any questions.

The judge did not allow oral arguments during the hearing, and the briefs containing Sullivan's accusations against the judge were not released by the court.

But Sullivan's motion papers, obtained by The Buffalo News Thursday, provided an explanation for McGowan's frosty demeanor toward the defense lawyer.

"I reluctantly concluded that throughout the trial," Sullivan wrote, "there was an underlying current of partiality, be it conscious or unconscious, which so pervaded the proceedings that my client, given the spectacular media response, was denied his right to a fair and impartial trial."

Sullivan said McGowan made several erroneous rulings during the trial -- including three motions for mistrials denied by the judge -- and charged there was a "pervasively hostile attitude by the court toward defense counsel."

Without citing an example, Sullivan also said there was "evidence of religious and ethnic bias toward defense counsel."

It was an apparent reference to a remark by McGowan when he complained about the slow pace of the trial in late October, saying it would still be going by Christmas. The judge then apologized to defense lawyer Neil A. Goldberg, who is Jewish, about the reference to Christmas. Goldberg at the time said he was not offended.

Sullivan also complained of McGowan's "repeated admonitions to defendants to settle the case" -- presumably in chambers, the argument was never made in the courtroom -- and said there were "prejudicial gestures" made by McGowan when he explained the law to the jury.

The defense lawyer also cited an unexplained "grossly improper threat" McGowan made to the defense lawyers when they unsuccessfully argued that the jury be sequestered during the deliberations. And he said McGowan gave inadequate warnings to jurors about avoiding media coverage of the trial.

A story by The Buffalo News on how jurors reached their 5-1 decision was cited several times as evidence that jurors relied on sympathy for Ms. O'Connell in reaching their "unlawful verdict." Sullivan said there was no evidence to support their findings.

In the incident involving the young woman in the courtroom, Sullivan includes the affidavit of a woman named Susan Sawicki, identified only as a trial spectator from Amherst.

Ms. Sawicki said the young woman one morning was seated in the courtroom next to the judge's wife, before spectators were allowed in by sheriff's deputies, and that she later saw the woman talking to the O'Connells.

Ms. O'Connell's brother got the woman a cup of coffee, said Ms. Sawicki, who later overheard the young woman asking Beatrice O'Connell, Ms. O'Connell's mother, about buying Mary Kate O'Connell's car.

The woman twice walked through the courtroom itself to a private entrance leading to the jury room and the judge's chambers, Sullivan said. The jury was deliberating outside of the courtroom at the time.

After Sullivan asked a court clerk about the young woman, he said McGowan brought him into chambers, said the woman was his son's girlfriend, and that he had driven her home from court the previous day.

Ms. Krebs complained that Sullivan failed to mention that Ms. Sawicki is an employee of Delaware North Cos., the family owned firm that employs Max Jacobs as a consultant, and that she may have been Jacobs' secretary at one point.

She also said the O'Connells spoke to the woman as they did others in the courtroom audience and had no knowledge of any connection between her and the judge.

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