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Judge Declares Mistrial in Crash Case After Juror's Racially Biased Remark

By  Rachel Holliday Smith and Radhika Marya | September 28, 2017 11:19am | Updated on September 28, 2017 2:54pm

 A memorial for Victoria Nicodemus appeared outside of Habana Outpost in Fort Greene after the 30-year-old woman was killed in a crash there in December 2015.
A memorial for Victoria Nicodemus appeared outside of Habana Outpost in Fort Greene after the 30-year-old woman was killed in a crash there in December 2015.
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DNAinfo/Alexandra Leon

DOWNTOWN BROOKLYN — A judge declared a mistrial Thursday in the case of a fatal Fort Greene crash that killed a 30-year-old woman, after it was revealed a juror on the case made racially biased comments about the driver on trial.

The driver, Marlon Sewell, will now be retried on second-degree manslaughter and criminally negligent homicide charges, among others, after a black female juror admitted in court Wednesday that she said, "I am not sending a black man to jail."

Sewell had been on trial for the crash that killed Victoria Nicodemus in December 2015, after his Chevy Suburban veered onto a Fulton Street sidewalk as the 30-year-old shopped for the holidays with her boyfriend.

The comment was revealed in a note sent to the judge by another juror, who is also a black woman, as the jury deliberated the case this week.

Brooklyn Supreme Court judge Vincent Del Guidice called the situation unprecedented in his 37 years of working on criminal cases.

"I have never seen a note like this," he said before declaring the mistrial Thursday morning, adding the juror who reported hearing the remark had to be hospitalized for suffering a "panic attack" after the comment was made public.

As she left the courthouse, the juror who made the comment would not answer any questions and told reporters to "get away from me."

Sewell looked relieved as the judge made the decision, hugging his attorney Damien Brown and leaving the courtroom quickly with his wife and children without speaking to reporters.

He will be likely be retried in the new year, attorneys for the prosecution and defense said. Del Guidice set a pre-trial hearing for the case on Nov. 29.

Nicodemus' brother Hank Miller, who attended the entire trial with his mother and siblings, called the mistrial "very disappointing."

"The jurors swore an oath when the trial began that they would be fair and impartial... It's just misconduct at the highest level," he said.

One juror who identified himself only as Matt said outside the courthouse Thursday he thought the jury would have convicted Sewell if not for the juror's comment.

"It's so clear what happened," he said of the crash.

He said he only found out about the woman's comment when the judge read it in the courtroom Wednesday, but wasn't surprised she had said it.

"She had made her mind up even before we started," he said.

The jury had heard more than week of testimony from NYPD investigators, mechanics, witnesses and Sewell himself. If convicted on the top manslaughter charge, he could serve up to 15 years in prison.

Correction: Due to an editing error, a previous version of this story incorrectly stated that the juror who made the racially biased comment suffered from a panic attack. The juror who overheard the remark actually suffered from the attack.