By Ralph Cipriano
Lawyers for two of Chaka Fattah's co-defendants have joined the chorus seeking to have their clients stay out of jail while a federal appeals court considers the propriety of Judge Harvey Bartle III's early dismissal of a dissident juror.
Last week, defense lawyers filed a motion seeking to have Fattah, the former 11-term U.S. Congressman, remain free on bail while a federal appeals court considered whether Judge Bartle had abused his discretion by booting the dissident juror.
In a bail motion filed today on behalf of Robert Brand, a Fattah co-defendant, a team of defense lawyers argued that Judge Bartle's "rash, unmethodical dismissal" of the dissident juror who "vigorously disagreed with the ultimate verdict was improper." The bail motion filed on behalf of Brand also claimed that Judge Bartle's "haphazard" questioning of five jurors during the trial "so disrupted the deliberation process" that it "severely prejudiced" the defendant as well as tainted the jury.
In a second bail motion filed on behalf of Karen Nicholas, another Fattah co-defendant, attorney Ann Campbell Flannery criticized Judge Bartle for asking "leading and suggestive" questions of five jurors in the political corruption case. Flannery also asked the federal appeals court to consider whether "the trial judge's quick and continued intrusion into the deliberative process was an abuse of discretion."
And whether the judge's actions had "a coercive effect" on the remaining jurors, namely "that if one dissented or took longer to deliberate than the others, the others could complain to the court and obtain swift intervention and relief."
In the bail motion on behalf of Nicholas, Flannery argued that when Judge Bartle decided to boot the dissident juror, he was "ignoring repeated testimony that the other jurors had reached a conclusion on the count being considered, as well as significant evidence that the jurors' complaints arose from frustration about the juror's differing view of the evidence when most of them were ready to move on to another count."
"Dismissal of a holdout juror directly violates a defendant's constitutional right to a unanimous jury and requires a reversal of the conviction," Flannery wrote.
Her client, Karen Nicholas, was found guilty on six counts and sentenced by Judge Bartle to 24 months in jail. She is scheduled to report on Jan. 26th.
Robert Brand was found guilty on two counts and sentenced by Judge Bartle to 30 months in jail. He is also scheduled to report to prison on Jan. 26th.
Judge Bartle has previously denied bail motions for both Nicholas and Brand, as well as Fattah, who was sentenced to 10 years in jail by Bartle, and was scheduled to report on Jan. 25th.
In the bail motions on behalf of Brand and Nicholas, defense lawyers brought up a previous corruption case involving former state treasurer Corey Kemp. In the Kemp case, when there was a dispute in the jury room, the trial judge waited until the fourth day of deliberations before systematically questioning all the jurors.
But in the Fattah case, the defense lawyers pointed out, Judge Bartle "questioned [five] jurors on an ad hoc basis" after only one half-day of deliberations, Flannery wrote on behalf of Karen Nicholas.
"Jurors were randomly brought in for questioning even after the testimony of the first three jurors clearly suggested that the heart of the problem was a dispute about evidence," Flannery wrote.
In Flannery's view, Judge Bartle "acted quickly, impatiently, and at the prosecution's urging." By replacing a holdout juror with "a more amenable juror," Flannery wrote, the defendant's "constitutional right to a unanimous verdict has been violated."
Judge Bartle also acted in a discriminatory fashion against the dissident juror, the defense lawyers asserted in the bail motions.
"Despite almost universal testimony that the other eleven jurors had made up their minds on a count and that Juror 12 had voted a different way and wanted to discuss the count further," Flannery wrote, Judge Bartle booted the dissident, claiming there was no way after just four hours of deliberations that the juror could have "reviewed and considered all of the evidence in the case and my instructions on the law."
"Yet in articulating its reasons for excusing the juror," Flannery wrote, Judge Bartle "completely failed to address" that the argument in the jury room was a "dispute about evidence." When he dismissed the juror, Judge Bartle claimed that the dissident had "preconceived notions about the case," even though there is no evidence in the trial record to support that claim, Flannery wrote.
In the bail motion on behalf of Robert Brand, lawyers Barry Gross, Meredith C. Slawe, and Mira E. Baylson wrote that Judge Bartle "unmethodically conducted" an inquisition of five random jurors.
In the Corey Kemp case, "the trial judge took great effort to ensure that the juror was not excused due to her doubts about the sufficiency of the government's evidence," Brand's lawyers wrote.
"After learning that the jury had hit a 'stalemate' on the fourth day, the court twice re-instructed the jury on its role, conducted three separate in camera voir dire sessions of each and every juror in which he asked identical questions which did not specifically reference any individual juror, and questioned the problematic juror separately before discharging her two weeks after deliberations had begun."
In the Fattah case, the defense lawyers wrote, Juror No. 12 was "discharged after less than a full day of deliberations," and Judge Bartle "made no attempt to reinstruct the jury, even though the jurors indicated that the problem arose just thirty minutes into deliberations."
Judge Bartle also found "Juror 12 incredible in part because of the speed in which he deliberated," the defense lawyers wrote. "Yet the other jurors wanted to take a vote within the first 30 minutes of deliberations and [Judge Bartle] clearly found the other four jurors it questioned credible."
Unlike the judge in the Corey Kemp case, Judge Bartle in the Fattah case "did not exercise caution or methodically investigate the alleged juror misconduct," the defense lawyers wrote. Judge Bartle also didn't re-instruct the jury. And when he removed Juror No. 12, Judge Bartle "unfairly influenced" the other jurors in the case "to believe that they had to reach unanimity" and convict the defendants.
In the two bail motions, the defense lawyers raised the issue of the recent U.S. Supreme Court case involving former Virginia Gov. Bob McDonnell, and what constitutes an "official act" on behalf of an elected official.
In the Brand motion for bail, the defense lawyers also raised the issue of the mental health of Thomas Lindenfeld, the government's key cooperating witness.
Lindenfeld, Brand's defense lawyers said, testified against their client even though he has "rapid cycling bipolar disorder" that may require "treatment by psychotropic medication."
Lindenfeld was "undiagnosed and untreated" at the time of the alleged criminal activity in the case, the defuse lawyers wrote. "His illness was serious enough at that time to cause his wife and son to seek intervention."
In the Fattah case, Lindenfeld was the government's star witness who tied Fattah to the central plot in the case, an alleged racketeering conspiracy to launder a $1 million loan from a wealthy campaign donor to pay for Fattah's campaign debts from a failed 2007 Fattah campaign for mayor of Philadelphia.
Lindenfeld was also the only government witness to testify about Brand's alleged knowledge of the criminal conduct in the case, his defense lawyers wrote.
In the bail motion, Brand's lawyers argued that a defense subpoena for Lindenfeld's medical records were "improperly quashed." The defense lawyers also claim that their subpoena for Lindenfeld's medical records were "improperly quashed" by Judge Bartle. And that during the trial, the judge also prevented Brand's lawyers from questioning Lindenfeld about his mental health, the defense lawyers wrote.
The last brief filed today in the Third Circuit Court of Appeals came from the government. In a 21-page government's opposition to Fattah's motion for bail, Acting U.S. Attorney Louis Lappen, Assistant U.S. Attorneys Eric L. Gibson and Paul L. Gray, and trial attorney Jonathan Kravis responded that there is no need to keep the former congressman out of jail while the appeal is going.
"The United States of America, by its undersigned attorneys, respectfully opposes the motion of defendant Chaka Fattah, Sr., for release pending appeal," the feds wrote. "As the district court properly concluded in its memorandum denying Fattah's motion for release, Fattah's appeal does not present a substantial question that is likely to result in a reversal or new trial on all counts on which a sentence of imprisonment has been imposed."
Regarding the dismissal of the 12th juror, the feds say it was "fully consistent with well-established Third Circuit precedent."
The judge also had the right to interview jurors because he was investigating "substantial evidence of jury misconduct." That evidence included two notes to the judge from the jury foreman raising questions about Juror No. 12, the feds wrote.
The U.S. Attorney's office also saw no substantial issue raised by the U.S. Supreme Court's Gov. McDonnell case concerning what constitutes an official act.
"The evidence here established overwhelmingly that Fattah was engaged in official acts as defined in McDonnell in his persistent quest for an ambassadorship" on behalf of co-defendant Herb Vederman, the feds wrote, quoting Judge Bartle.
"The district court reasoned that, 'unlike much of Gov. McDonnell's activity, Fattah clearly crossed the line beyond mere expression of support for Vederman for an ambassadorship," Bartle wrote, even though Vederman never got the ambassadorship, which would have been an unpaid position.
And the district court found that, 'the Government presented overwhelming evidence that Fattah's hiring of Vederman's girlfriend' was also an 'official act,' " the feds wrote.