A trial judge did not do enough to ensure that a jury had not been exposed to a news report about court proceedings in a scam case, a federal appeals court has ruled.
The 4th U.S. Circuit Court of Appeals ordered a new trial for a Midlothian man – Merrill Robertson Jr. – sentenced to 40 years in prison for a scam that resulted in $9 million in losses to investors.
The appeals court said that U.S. District Judge John A. Gibney Jr. did not question jurors in enough detail about whether they had seen a newspaper report on the judge’s comments about Robertson.
Gibney had said in a bond hearing – with the jury absent – that Robertson had not been truthful. The Richmond Times-Dispatch reported on those comments. The next day, Robertson’s lawyers sought a mistrial, saying the published account posed a significant potential for prejudice.
Gibney asked jurors if they had “heard or read anything about the case.” When the jurors responded in the negative, the trial went on.
The 4th Circuit panel said Gibney did not go far enough. A juror could have answered in the negative even if the juror had seen the newspaper sub-head: “Judge calls former Chesterfield resident ‘not a truthful person,’” the court said.
“[W]e find that a new trial is necessary to ensure compliance with the constitutional imperative that Robertson receive a fair trial,” read the court’s Feb. 5 per curiam opinion.
Robertson, 39, was a co-founder of Cavalier Union Investments, which was used to perpetrate a $10.5 million fraud with 63 victims, many of them in the Richmond area, the government alleged.
The jury convicted Robertson in August 2017 of conspiracy, mail, wire and bank fraud, and money laundering. Robertson’s partner, Sherman Carl Vaughn Jr. of Blackstone, was sentenced to 12 years.