Background
Gregory Thayer was charged with murder and weapon possession after shooting a childhood friend. His lawyers planned a bench trial and served psychiatric evidence supporting lack of criminal responsibility and lack of intent. Before trial, the judge’s law clerk privately contacted local counsel.
According to counsel, the clerk said the judge and clerk had reviewed the report, doubted its support for an unasserted extreme-emotional-disturbance defense, and believed Thayer would fare better before a jury. The clerk also demanded secrecy. Counsel relayed some substantive concerns to lead trial counsel but did not reveal that the judge appeared inclined to reject the expert or that the clerk recommended a jury. Thayer waived a jury and was convicted of manslaughter and weapon possession.
The Court’s Holding
The Third Department affirmed the postjudgment order vacating the conviction. Local counsel’s duty of loyalty to Thayer directly conflicted with the secrecy imposed by the judge’s chambers. Counsel knew information crucial to choosing the factfinder but remained silent while the client proceeded with a bench trial.
That division created an actual conflict, not merely a speculative one. An actual conflict or significant possibility of conflict requires reversal absent a knowing waiver; the defendant need not separately prove how it changed the verdict. The fact that local counsel did not personally conduct the waiver or trial did not cure the problem because he knew of the plan and failed to provide single-minded advice.
The same information defect made Thayer’s jury waiver unknowing and involuntary. The court left double-jeopardy questions for Supreme Court, which had reserved them pending appeal.
Key Takeaways
- Defense counsel must disclose information materially bearing on a client’s choice of judge or jury.
- A secrecy request from chambers cannot override counsel’s undivided duty to the client.
- When an actual, unwaived conflict exists, courts do not require the defendant to reconstruct how full disclosure would have changed trial strategy.
Why It Matters
Thayer is an unusual but forceful reminder about boundaries around ex parte court communications. Lawyers should memorialize improper contacts, seek guidance on the record, and refuse confidentiality that disables client advice.
Judges and court staff likewise should avoid off-record merits discussions with one side. For postconviction counsel, the case shows that defective advice surrounding the jury waiver can supply an independent constitutional ground for relief.