Friday, December 16, 2016

An Obstinate Juror? Or Henry Fonda In 12 Angry Men?

By Ralph Cipriano

Was Juror No. 12 in the Chaka Fattah case being obstinate? Or was he reprising Henry Fonda's role in 12 Angry Men?

Did Juror No. 12 violate his oath as a juror? Or was he just following the dictates of his conscience?

It's an argument that won't be settled by a newly released Dec. 16th memorandum from Judge Harvey Bartle III. And it won't be settled on the front page of The Philadelphia Inquirer or the Legal Intelligencer.

Instead, it's an argument that will most likely play out in appeals court. While former Congressman Chaka Fattah sits in jail, anxiously awaiting the outcome.

In a memorandum made public by the judge today, Juror No. 12 allegedly told a court clerk shortly before his dismissal that he "was going to hang this jury no matter what."

"Here, there is no doubt that Juror No. 12 intentionally refused to deliberate when he declared so early in the process that he would hang the jury no matter what," the judge wrote. "This finding was predicated on the admission of Juror 12, as reported by the court's deputy clerk."

The judge's memorandum lays out some of the specifics of his closed-door interview with Juror No. 12, but did not reveal the full transcript. In the memorandum, the judge said he asked Juror No. 12 if he told the clerk that he intended to hang the jury.

"I did," the juror said. "I said we don't agree; I'm not just going to say guilty because everybody wants me too; and if that hangs the jury, so be it."

The judge had a problem with this.

"There have been approximately four hours of deliberations," the judge wrote. "There's no way in the world he [Juror No. 12] could have reviewed and considered all the evidence in the case and my instructions in the law."

As the only reporter who talked with Juror No. 12, he didn't claim to have reviewed all the evidence in the case and all the judge's instructions in the law. His story was simply that for five hours he participated in eight straight votes on the charges in the case, beginning at the bottom of the indictment.

These are facts totally missing from Judge Bartle's belatedly released, factually incomplete and decidedly partisan memorandum.

On eight straight 11-1 votes, Juror No. 12 said he came out on the short end of votes to convict. The last vote was an argument over whether Fattah co-defendant Karen Nicholas had falsified records to federal officials. Juror No. 12's story was that he went over every email between Nicholas and the feds and concluded that she hadn't falsified anything.

That's when, according to Juror No. 12, the jury foreman said he wanted to take another vote. And Juror No. 12 said he replied, "You can take another vote but I'm not gonna change my mind."

"It was 11-1 for five hours straight waiting for me to change my mind," Juror No. 12 stated in an hour-long interview. "I said, 'I'll hang the jury. I'm not gonna change my mind.' "

"I sat through a month-long trial," Juror No. 12 stated. "I read all the evidence again and again. Why should I change my mind?"

That sounds like what a juror is suppose to do, weigh the evidence, and come to a decision. And if it conflicts with what other jurors are saying, a juror isn't supposed to cave simply because the majority of jurors, and possibly the trial judge, want him to. A juror is supposed to follow the evidence, and the dictates of his conscience.

According to the judge's memorandum, the other jurors in the case wrote an ungrammatical note to the judge that said: "We feel that Juror No. 12 is argumentative [and] incapable of making decisions. He constantly scream at all of us."

But Juror No. 12's story was that he raised his voice only after other jurors began shouting at him.

"When people raised their voices to me, I'm gonna raise my voice back to you," Juror No. 12 said. At the time, Juror No. 12 said he was raising questions about the prosecution's case, and what he saw as a lack of evidence.

Juror No. 12 said his fellow jurors responded with anger and insults. Such as suggesting that when Juror No. 12 was a paratrooper jumping out of planes, he might have landed on his head too many times.

"They were talking about getting rid of me right away," he said. "In the first hour, people were yelling at me, 'You're an idiot.'"

According to Juror No. 12, some of his fellow jurors believed that the indictment in the case was evidence of wrongdoing.

"Sweetheart, that's the indictment, that's not evidence," Juror No. 12 said he responded.

He turned out to be right. After Juror No. 12 was dismissed, Judge Bartle instructed the jury that the 29-count, 85 page indictment wasn't evidence in the case; just a set of allegations that had to be proven beyond a reasonable doubt.

Juror No. 12 also said that it was his idea for the jury to start at the bottom of the indictment and work their way up. The rest of the jurors, he said, wanted to start at the top and work their way down.

The central alleged crime in the racketeering indictment involved the loan of $1 million to Fattah's unsuccessful 2007 mayoral campaign by a wealthy donor. The feds claimed that the congressman had laundered that loan through a friendly political consultant to pay off his campaign debts.

"If there was no loan, there's no conspiracy," Juror 12 argued. "There's nothing tying him [Fattah] to the loan."

This was true; there was no written evidence tying the congressman to the loan. Only the word of two government witnesses who were jammed up with their own legal problems that included lying to the government.

The debate over whether to start at the bottom of the indictment and work their way up was the last argument Juror No. 12 said he won in the jury room.

Remember, Juror No. 12 was the government's worst nightmare: a flag-waving white guy from Lancaster County with a military background who studied the evidence and came away convinced that the government didn't prove its case against a black 11-term congressman from Philadelphia.

Whether Juror No. 12 was being obstinate, or following the dictates of his conscience is sure to be the subject of dueling legal  briefs in appeals court.

Judge Bartle, for one, has already made up his mind. In his memorandum, the judge said he dismissed the juror because:

Juror No. 12 has delayed, disrupted, impeded, and obstructed the deliberative process and had the intent to do so. I base that having observed him, based on his word and his demeanor before me. He wants only to have his own voice heard. He has preconceived notions about the case. He has violated his oath as a juror. And I do not believe that any further instructions or admonitions would do any good. I think he's intent on, as he said, hanging this jury no matter what the law is, no matter what the evidence is.

That, however, was not Juror No. 12's story. His story was that he didn't have any preconceived notions. He carefully reviewed the evidence, came to some conclusions, and then, in the face of great opposition in the jury room, refused to change his mind.

It's an argument that defense lawyers in the case are sure to pick up on.

And, unlike the lawyers in the Fattah case, who say they are still bound by Judge Bartle's gag order, the defense lawyers in appeals court will be free to make an argument. And suggest that perhaps the trial judge got it wrong.

On the issue of the gag order, one defense lawyer after another in the case declined comment by saying there was a gag order. The judge however, asserted in a footnote in his memorandum that "no such order has been put into effect."

Somebody isn't telling the truth here. Were all those terrorized defense lawyers in the case sharing a common delusion? Or is the judge rewriting history?

Juror No. 12 also told me that he was instructed by the judge not to talk about the case.

There's something even more disturbing about the judge's memorandum.

According to the judge, Juror No. 12 "delayed, disrupted, impeded and obstructed the deliberative
process" by basically disagreeing with the majority.

Obviously in the judge's view, the case would have run so much smoother if there weren't any differences of opinion.

Anybody else got a problem with that?


  1. Its interesting that Jeremy Roebucks headline read "He was going to hang the jury no matter what " stating that " after the panel took several votes Miller said he refused to vote again". Does he just come in late and look at the prosecutions notes. He missed obvious facts pointed out by Big Trial, as in Mr.Miller sat through a month long trial and that he was not going to change his mind just because everyone wanted him to do so.

    This is the same reporter that supposedly sat through weeks of the Traffic Court trial and missed the FBI agent getting caught lying and the entire closing arguments were the attorneys referenced the agents egregious behavior.
    It might be time to change up the reporter here, missing large gaps in any testimony or deciphering a memorandum correctly should disqualify him from reporting important facts correctly to readers.
    His propensity to side with the prosecution clouds his ability to be fair and impartial.

  2. No politician in America would ever be able to receive a fair trial in this political climate, they are the most discriminated upon profession in our country today. The media has very little by way of a kind word or support for politicians.
    One should have their head examined before serving in politics, you are jail bate,do anything else, giving up your life to help others is not worth it, you risk losing your reputation and everything you own and subject your family to scorn. Its open season on politicians year round.

    Unless politicians start a campaign counterattacking their treatment by the media ,the abuse will continue. I would suggest as mandatory community service for high schools and those in college, volunteering at the city or state level to see how real life politics operates. Sitting on you couch and passing judgement on another profession shows ignorance.

    1. I agree with you on that. The word is do not pass judgment unless you walk in my shoes. Issue is where will we find replacements for deceased great leaders if apathy sets in where people won't give a damn about doing something right or making a contribution to society through good leadership. Ethical behavior is important lest you have people stealing money.

  3. The truth is politicians do things right the majority of the time, they don't get credit for doing hard work, unpopular work. When you can help a constituent your a hero, when you can't your a bum. Politicians come up through the ranks,starting out usually volunteering,doing the back breaking grunt work, pounding the pavements to get votes to make life better for people and bettering their surroundings.

    Its a thankless job, you have no life to yourself, always on call. People think nothing of taking your time 24 hours a day 365 days a year, for a salary equal to a tenured teacher, even though most people think that they should dictate what you make. Try telling another professional they make too much money, and that everyone should have a say in your salary. In other professions people have time to themselves, not politicians and not their families who are always in jeopardy.

    I suggest cleaning out the prosecutors at federal buildings and have them live the life of a politician. I think the world needs more Chris Christies' and Seth Williams' who have shown us what self serving politicians really look like.

    Nothing will change unless the media does an about face and starts treating politicians the way they want to be treated, with respect. Our government, through the media, has taught us all how to behave, we kick one another when we are down, and accuse one another of crimes that may and may not have been committed.
    America is getting what it deserves, its so willing to believe that all politicians are crooks, as its been told to us the prosecution, we salivate waiting for the next victim to be eaten by the lions.

    No ,I cant advise the going into politics, not any time soon, unless you plan on spending time in prison and having your children visit you there.My suggestion go into a "safe" profession, like being a prosecutor or an Inky reporter.

  4. Fake news coming from a reliable news source has been happening for years, only now that the government has been caught at it own game are they crying foul.
    Fake news can be described as news that has been distorted to make facts appear to be true and coming from a trusted news organization. Anytime a news outlet prints "facts" from the prosecution it should be considered fake news. Facts should be checked before they are printed by reporters regardless of the source.
    Just as "Pizzagate" seems ludicrous to us, defendants reading a news report of the facts of their "crime" feel the same way. Crimes that never occurred are broadcasted for the region to affect a desired outcome, which has been very successful to date.
    The government has been using fake news to convict defendants as long as there has been newsprint. Its time for us to realize this is an affront to democracy just as any fabricated news story coming from a Balkan country trying to influence our elections.

  5. If a politician does something to benefit themselves, they go to jail. When the prosecution does something to benefit themselves at the expense of a defendant they get a promotion.


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