News10NBC Investigates: Juror misconduct leads to mistrial, appeal and double jeopardy ruling so DA can’t prosecute defendant again

Berkeley Brean News10NBC

Willie Shipmon cannot be tried again in the 2021 murder of Brandon McClary on Genesee Street due to a double jeopardy ruling. A mistrial had been declared due to juror misconduct. (Photo: WHEC)

ROCHESTER, N.Y. –– We have been keeping a tally on the number of mistrials and delays in our area because of juror misconduct.

Misconduct ended a cold case murder trial — and now it’s led to a double jeopardy ruling where a man accused of murder can’t be tried again.

Willie Shipmon was one of three men charged with murder and gun possession for the murder of Brandon McClary on Genesee Street in June of 2021. Shipmon was alleged to have been the getaway driver but still faced 25 years to life in prison.

As the jury deliberated a verdict in the trial last September, one juror was accused of searching the definition of second-degree murder on his own, a direct violation of the court’s order.

Shipmon’s lawyer, Robert Napier, wanted to go ahead with 11 jurors or poll the jury on a partial verdict.
But Judge Tom Moran ruled a mistrial with the support of the District Attorney’s Office and the lawyers for the two other men charged with murder.

Napier appealed and included an affidavit from a juror saying they were going to find Shipmon not guilty.

The appellate court on East Avenue ruled the mistrial was a mistake, that it was not a “manifest necessity,” and on March 15, the panel of judges said the District Attorney’s Office is “prohibited” from trying Shipmon again on the grounds of “double jeopardy” which says you cannot be tried twice for the same charge.

Berkeley Brean, News10NBC: “So the lawyer for the other defendant wanted a mistrial. You did not. Why not?”
Robert Napier, attorney: “The feeling of the defense was that the proof had gone in really quite well for the defendant.”

Brean: “Is there a juror problem going on?”
Napier, attorney: “I certainly sense at this part of my career that jurors are having more difficulty in two ways. Because of where we have come technologically I think there is a stronger urge for a juror to potentially hop on the internet and try to figure things out.”

Shipmon is still in jail on two separate gun charges.

Juror misconduct led to a December mistrial in the cold case murder of Wendy Jerome. Timothy Williams was re-tried in March and found guilty.

The Shipmon case illustrates another jury problem. In the appellate court’s ruling, it quoted jurors on the case saying there was “tension in the jury room.”

“I also think in this post-COVID era the idea of working collaboratively has been demonstrated to be somewhat harder in a number of cases that I’ve handled,” Napier said.

Brean: “Was justice served here?”
Napier: “Very much so. Justice, although somewhat delayed, was not denied in this case.”

Brean: “What’s the takeaway for the public? For the people watching this?”
Napier: “That they should remain very firmly committed to our system of justice. It is not perfect but I think this is a case in point that although mistakes having been made, justice was ultimately obtained.”

The DA’s office says it’s disappointed because the appeals court decision was based on something out of its control.

“It is unfortunate that we will not have an opportunity to once again try this case based on its merits. We are disappointed with this ruling because the circumstances that led to this decision were outside of our control,” the DA’s statement reads. “It is disheartening for the District Attorney’s Office, the family of the victim, and the entire community, that the end result of this decision is that Mr. Shipmon will not face these allegations in a court of law.”

Two other men on trial for the same murder did not object to the mistrial. They have hearings in April to schedule their new trials.