Tuesday, December 20, 2016

Inside The Jury Room

By Ralph Cipriano
for BigTrial.net

On the first day of deliberations in the political corruption trial of U.S. Congressman Chaka Fattah, the jurors were screaming at each other.

After an 11-1 vote, the jury foreman told the lone holdout, Juror No. 12, to sit down and shut up. The next day, the jury foreman apologized. But the jury continued to argue, and  continued to split 11-1 on eight straight votes.

As far as two jurors were concerned, the majority was ganging up on the lone holdout.

"In my opinion, the rest of the jurors pounced on the gentleman with the . . . dissenting opinion," Juror No. 3 told Judge Harvey Bartle III.

"I mean, it was mayhem," the jury foreman agreed. "It was everybody pretty much against this guy."

In the end, the judge decided to join in the pile-on, and kick the dissident juror off the jury, for having the temerity to disagree with the majority.

On the afternoon of June 16, after a five-week trial, jurors were debating the fate of an 11-term congressman from Philadelphia.

Judge Bartle asked the questions as he conducted interviews with five of the quarreling jurors. Watching the spectacle were three assistant U.S. Attorneys and 14 defense lawyers representing the congressman and four co-defendants, according to 90 pages of newly unsealed court transcripts.

The inquisition began when the judge read a note from the jury foreman that said:

"Juror No. 12 refuses to vote by the letter of the law. He will not, after proof, still change his vote. His answer will not change. He has the 11 of us a total wreck knowing that we are not getting anywhere in the hour of deliberation [yesterday] and the three hours today."

"We have zero verdicts at this time all due to Juror No. 12," the note read. "He will not listen or reason with anybody. He is killing every other juror's experience. We showed him all the proof. He doesn't care. Juror No. 12 has an agenda or ax to grind w/govt. Sincerely, Juror No. 2, Billy Cassidy."

The judge read a second note from the jury, which, after just five hours of deliberations over two days, continued to complain about Juror No. 12, identified in court records as Timothy Miller of Lancaster County.

"We feel that Tim is argumentative, incapable of making a decision," the second ungrammatical note read. "He constantly scream at all of us."

The note was signed by the jury foreman, as well as as many as eight other jurors.

The judge announced he was going to question the jury foreman as to whether or not Juror No. 12 was deliberating "as required under his oath." The judge also announced his intention to question Juror No. 12.

Robert E. Welsh Jr., representing Herb Vederman, one of Fattah's co-defendants, objected. Welsh urged the judge to "admonish the jurors . . . of their duty to deliberate." Welsh said he thought it was "less intrusive" for the judge to "calm down whatever contretemps may be going on in the jury room."

Ann C. Flannery, representing Karen Nicholas, another co-defendant, agreed, saying that to start questioning the jurors so quickly "sends a message that if there's a block of jurors with one opinion, they can immediately get personal court intervention by complaining to the court."

All the other defense lawyers joined in on the objection. Assistant U.S. Attorney Eric L. Gibson, however, took a different view.

Gibson told the judge he was concerned about whether Juror No. 12 was biased against the government, as asserted in the note from the jury foreman. If this was true, Gibson said, then Juror No. 12 lied to the court about whether he could be an impartial juror.

"And his refusal to deliberate would be further evidence of that and his unsuitability as a juror," the prosecutor said.

The judge called Billy Cassidy, the jury foreman, as a witness, and asked if Juror No. 12 was willing to follow the law.

"No," Cassidy said. "I think he thinks we're here for him. He wants to read every detail not once, but twice, three times when we laid everything out. And then when we ask him why he voted what he did, it goes against the law."

Juror No. 12 "has everybody in that room a wreck and totally frustrated where it is ruining our experience with this whole trial," the foreman said.

The judge asked about the screaming in the jury room.

"Well, we're past that point now," the jury foreman said. But he said that Juror No. 12 was "very argumentative."

"I personally ended up telling him to sit down and shut up yesterday," Cassidy admitted. "I started the meeting off today by apologizing for my conduct. Nobody should ever be told to shut up."

The jury foreman told the judge that the day before, there were several instances of screaming in the jury room.

"And not just -- not me," Cassidy said. "I mean, everybody, I mean, it was mayhem. It was everybody pretty much against this guy . . . He had his own agenda and I don't know what it is."

"He rambles," the jury foreman complained about Juror No. 12. "He raises his voice. He stands up. He put his hand on another juror," the foreman said.

"You know, I had to tell him, get your hands off of him," the foreman said. "I'm going to tell you right now he's a time bomb in that room and he's got everybody on edge."

After the jury foreman left the judge's chambers, the prosecutor suggested once again that Juror No. 12 had "an ax to grind against the government."

"Never ever in my career," the prosecutor said, had he ever heard of a "juror laying hands on another juror."

"That's very, very troubling," the judge agreed.

"We don't know the details," defense attorney Welsh cautioned.

The judge decided to bring back jury foreman Cassidy and ask about the details of the touching incident.

"He put his hand on another juror's shoulder as as they were sitting there as he was getting more and more mad because we're at a point now where he wants all the attention," Cassidy said about Juror No. 12.

"We've gone over this over and over again and a monkey would know what we're talking about at this point," the jury foreman complained. "It's an absolute disgrace."

The judge sent Cassidy back to the jury room and said it was time to call Juror No. 12 as a witness.

"Well, we'll see what Mr. Miller has to say, but this is a very serious situation that we have here," the judge said. "I hope counsel understands that."

When Juror No. 12 was brought in, the judge asked about concerns "that you've been screaming in the jury room and raising your voice, is that accurate?"

"A lot of people have been raising their voice and screaming," Juror No. 12 replied.

"I'm asking about you," the judge said.

"I have," Juror No. 12 said. "If they've yelled at me, I've yelled back."

The judge asked Juror No. 12 about "concern that you're not deliberating, not allowing other people to speak, not deliberating. Tell us about that."

"I am the only one deliberating," Juror No. 12 said.

"Within the first half hour they wanted to take a vote," Juror No. 12 said about his fellow jurors. "So they all voted. My vote was different than everybody else's."

"They asked me why," the juror said. "I bring up evidence. They said, that doesn't mean anything. They pointed to the indictment. I said, the indictment is not evidence."

The 11-1 vote they were arguing about concerned a charge involving Karen Nicholas, a Fattah co-defendant. She was accused of lying to the federal government on an application for a grant to fund an educational conference sponsored by Congressman Fattah.

"They argued with me and then they threatened to have me thrown off," Juror No. 12 told the judge. "And I said, if you you feel that way, you can do it. At the end of the day we got nothing accomplished."

On the second day of deliberations, "I came in today and they said they were sorry," Juror No. 12 told the judge. "We went over it again. Once again we're in the jury room. Not 45 minutes into deliberation they want to take a vote. My vote's different. They all ask me why. I tell them."

"So, we go over it and we go over it and they point to the indictment again," Juror No. 12 said. "The indictment is not evidence. Read the charge."

Juror No. 12 said he was trying to explain what the evidence was to another juror when he noticed the rest of the jurors weren't paying attention. They were talking about baseball and football, among other topics.

"They have no idea," Juror No. 12 said. "They're just waiting for me to finish up so they can take another vote. And that's fine."

"And I told them, if you don't want me to be here, I don't want to be here," he said. "So if you want to take me off this jury, that's fine. I'm OK with it, I really am."

"Well, a lot of the other jurors say you were screaming," the judge said.

Juror No. 12 said the jury agreed that everybody would get a turn to talk, but that's not how it played out.

"Why do I have three people screaming at me," he said. "Now, I can't even hear me. So naturally I have to raise my voice . . . But I do not want to yell at anybody. And today there was very little yelling, hardly any at all, hardly any at all."

After the judge excused Juror No. 12, defense attorney Welsh suggested "that the record is clear at this point that we have a disagreement over evidence and that he {Juror No. 12] is the one who is deliberating and that many of the others are not willing to go through [the evidence] in a conscientious fashion."

"He is the conscientious guy who says, let's look at" the evidence, Welsh said.

The jury seems "to have calmed down," Welsh said, before suggesting once again that the judge urge the jury to continue with their deliberations.

Ronald H. Levine, another defense lawyer who represented co-defendant Bonnie Bowser, suggested that the judge instruct the jury that the indictment was not evidence.

"That's very disturbing," Samuel W. Silver said, representing Congressman Fattah.

Prosecutor Gibson said that Juror No. 12 "indicated he doesn't want to be here, which is also problematic." Gibson said he was worried about the jury foreman's claim that Juror No. 12 "doesn't want to follow the law, which is also a violation. And jury nullification is not something that we tolerate."

Defense lawyer Flannery, however, said she wanted to put on the record that she did not observe "anything untoward or irrational or overly agitated" about Juror No. 12 when he appeared in the judge's chambers as a witness.

"He was very articulate in explaining what the situation was," she said, adding that she took exception to Gibson's description of the juror.

Silver, another defense lawyer, agreed.

"But in my view what we saw in this juror is somebody who is being shamed out of the room for expressing his viewpoint, which is exactly what we don't want from the jurors," Silver said. "And to dismiss him would be a very, very disturbing thing because it would suggest that somebody who is dissenting and trying to explain his position does not have a seat at the table."

The judge decided to recall juror No. 12.

"Mr Miller, I just had one other question," the judge asked. "Did you touch any of the jurors?"

"Well, we're sharing the books," the juror replied. "I may have."

"Did you stand up and put your hand on anybody's shoulder," the judge asked.

"Not intentionally, no," the juror said.

"Did you do it," the judge asked again.

"I couldn't remember, to be honest with you," Juror No. 12 said.

The next witness was Juror No. 3, who told the judge that "the rest of the jurors pounced on the gentlemen with the . . . dissenting opinion."

"And so I think he got very defensive and just a little bit of impatient," Juror No. 3 said. "The other jurors were very impatient with him . . .  so I think he got very defensive."

The judge asked if she saw Juror No. 12 put his hand on another juror's shoulder.

"No, I didn't see that," she said. But she said she did witness other jurors rolling their eyes and scoff when Juror No. 12 spoke.

When Juror No. 3 left, the prosecutor suggested that the judge interview another juror, but the defense lawyers objected.

The judge, however, said, let's bring in one more juror.

"I think this threatens the . . . entire deliberative process," Silver warned. "We're examining the jurors. We're having testimony."

"Courts have said that I can examine every one of them," the judge said. And then he asked to talk to Juror No. 6, identified as Ms. Rivers.

Juror No. 6 proceeded to complain about Juror No. 12 taking "a longer time" to vote.

"It's like he's being obstinate," she said. "It's like he's being different."

The judge asked about whether Juror No. 12 had touched any of the other jurors.

"He might have put his arm around my shoulder or hand on my shoulder," Juror No. 6 said. "He did it maybe with another juror, too."

The judge asked about the difference of opinion in the jury room.

"The majority of us, we can look at it, we can review the evidence and we can come to a conclusion," Juror No. 6 said. "That's 11 of us. And then you have one person, it's like wait a minute, and he just kind of holds out to be seen for whatever reason and just takes a little longer, and it's very frustrating to everybody . . . "

The judge called as the next witness, Juror No. 1, identified as Mr. Blimline, and asked if Juror No. 12 was willing to follow the judge's instructions.

"He pores over them," Juror No. 1 said. "He pores over the documents very well."

The problem, Juror No. 1 said, was that Juror No. 12 was "going way beyond the questions like, well . . . what did this person feel or why did this person . . . That's not even -- that's not part of the question."

"Well, of course," the judge said, "intent is part of it."

The juror agreed, but said, "I feel like he's more like investigating the whole process trying to figure out why everything happened and like going way beyond the scope of what -- the information that we even have, you know."

The judge asked about the screaming in the jury room.

"He's very vocal," Juror No. 1 said about Juror No. 12. "When he feels like he's not getting -- being heard."

"And he's not willing to listen to any sort of reason or any sort of what everyone else is saying and he's trying to force everyone else to get to his point of view," Juror No. 1 said.

"And if he feels like he's not getting there, he gets louder and louder and points and puts his hand on your shoulder," the juror said.

After Juror No. 1 left, the prosecutor told the judge that going by the demeanor of Juror No. 12, "there's ample evidence to conclude he's disrupting the process and should be removed from the jury.

"Your Honor," defense lawyer Welsh said, "I think the picture that is portrayed here is quite the opposite."

"The man is deliberating and he's in the face of 11 people who will pounce on him."

Defense lawyer Levine argued that Juror No. 12 was raising the issue of intent. "And, of course, that is at the heart of this case," Levine said. "And that seems to be the focus of some disagreement."

Levine objected to Juror No. 12 being dismissed from the case.

"This seems to be a juror who actually is being conscientious," Levine told the judge.

When the judge convened a conference the next morning in his chambers at 8:59 a.m., he asked his deputy clerk, Kristin Makely, to be sworn in as a witness.

The judge asked deputy clerk Makely to tell the court what happened yesterday when she escorted Juror No. 12 from the jury room to the judge's chambers.

"OK, I was walking him out," the clerk said. And in the hallway, near the judges' elevators, "he stopped me by just sort of -- not in a threatening way at all, just stopping me with his hand on my shoulder."

"And he just looked me straight in the eye," the deputy clerk said. And then, she said, Juror No. 12 told her, "I'm going to hang this jury."

Later that day, the deputy clerk testified, Juror No. 12 "came out of the jury room, and he said, 'I really need to talk to you.'"

According to the deputy clerk, Juror No. 12 "said more about how they're treating him and what he's saying to them and then, it's going to be 11 to 1, no matter what."

Timothy Miller, Juror No. 12, was brought in for further questioning. The judge asked Miller about his conversations with the deputy clerk.

"Basically, I said there was a lot of name calling gong on," Miller said.

He told the judge about his background as a paratrooper for six years in the 82nd Airborne.

"They made a comment that maybe I hit my head a few -- hard a few times," Juror No. 12 said about his fellow jurors. He added that the jury foreman "called me stupid the first day," but then "he apologized."

"Somebody made a comment that I may have hit my head . . . a couple of times too hard on the ground when I landed," Juror No. 12 told the judge.

"I didn't appreciate the comment," he said. "I can't prove that they said it. I don't know who all heard it. It doesn't matter. I found it offensive."

The judge asked what else the juror had told the clerk.

"I said, I'm taking it seriously; I'm deliberating," he said. "I feel I'm doing the best that I can. There's people in there calling me names, stupid . . . piece of work."

The judge asked if the juror had told the deputy clerk "that you're going to hang this jury."

"I said I would," the juror said.

"You did?" the judge asked.

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

The judge asked why Juror No. 12 didn't remember making that comment the first time the judge asked.

"I'm more concerned about people spitting on my military record," the juror said.

The judge persisted, asking "did you say to her you would hang the jury no matter what?"

"I can't really remember that," Juror No. 12 said. "I can't recall that exactly."

After Juror No. 12 was excused, several defense lawyers objected to dismissing him from the case. But the prosecutor said he thought the demeanor of Juror No. 12 "demonstrated a hostility . . both to the other jurors and to the court, in particular."

The prosecutor added that Juror No. 12's comment to the deputy clerk that he would hang the jury no matter what "suggests he's not participating in the deliberations" and that he's "ignoring the evidence and the law."

"I think the court has no alternative but to remove him at this point," the prosecutor said.

The judge agreed.

"I find my deputy clerk," the judge said, "to be credible."

"I find the juror," the judge said, "not to be credible. I find that he did tell Ms. Makely that he was going to hang this jury no matter what."

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

[But it was Ok with the judge that within the first half hour of deliberations, the rest of the jurors were ready to vote on the case, according to Juror No. 12, beginning with the top of the indictment, and the alleged conspiracy to commit racketeering. And that many of those jurors were voting to convict because they thought the indictment was evidence.]

"Juror No. 12 has delayed, disrupted, impeded, and obstructed the deliberative process and had the intent to do so," the judge said. "I base that having observed him, based on his words and his demeanor before me."

"He wants only to have his own voice heard," the judge said about Juror No. 12. "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," the judge said. "I think he's intent on, as he said, hanging this jury no matter what the law is, no matter what the evidence is."

"Therefore, he will be excused and I will replace him with the next alternate," the judge said.

Without Juror No. 12, the jury came back and convicted Congressman Fattah and his four co-defendants on 57 of 74 total charges, including conspiracy to commit racketeering, as well as conspiracy to commit wire fraud, bank fraud, bribery, obstruction of justice, and money laundering.


  1. The judge asked if the juror had told the deputy clerk "that you're going to hang this jury."

    "I said I would," the juror said.

    "You did?" the judge asked.

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

    That should have been enough for the judge to hear, the juror was not saying guilty because he was being force to do so. What more do we need to hear from a juror, he did not agree. Simple.

    I have never served on a jury and now especially I would never want to do so,if we don't side with the rest of the jurors, we risk a catastrophe. What signals is the judge and prosecutions sending to Philadelphia. Agree or get thrown off the jury. Thanks for the heads up.

    1. The clerk phrased the comment differently. The way the clerk heard it, it wasn't couched with an "if we can't agree." The clerk stated that under oath as well. Given that the judge had two competing versions of the juror's comments, it became his job to determine credibility, which of course went to the clerk. That doesn't sound like leaving much for an appeal - it seems to me that an intention to hang the jury without the "if" is misconduct and the judge had no discretion once he found his clerk to be credible.

      The other thing I've noticed is that at no time did anyone outside the jury room learn which way the 11 were actually leaning. The attorneys seemed to have picked up on it, but it isn't ever explicitly revealed. So it's not quite a directed verdict, so to speak, because the judge can't be sure exactly what the verdict would be.

      Some things I never quite understood about our system: why do we require a unanimous acquittal? If a unanimous acquittal must be obtained, why not have a complete alternate jury instead of individual jurors? Seems like mistrials are common enough, and a second jury would be a whole lot cheaper than a second trial. It also wouldn't leave room for mischief, if that's what occurred here. Jurors not getting along? Send them all out without picking a side and bring in an alternate jury.

      The other thing - why do we let juries see indictments at all? Clearly this is disturbing if we have juries treating them as evidence. The charges could be provided to the jury in a neutral way without the indictment. If indictments are routinely being treated as evidence, deliberation squabbles are the least of our problems.

    2. The judge deemed the clerk credible, federal prosecutors are supposed to be credible as well but we know that is not true. They bend the truth for a conviction. Those that work in the federal building work against the defendant, why would we believe anyone would tell the truth.

      Yes indeed, why does the jury see the indictment, why are there grand juries, prosecutors and FBI agents lie to those juries to get the indictment in the first place.

      The media condemns the defendant before they step foot into the courtroom whereby removing all hope for a fair trial. Do we really believe a defendant gets a fair trial in America . In the event the prosecution does not win a case they then,with the aid of the media, disparage the defendants and continue to find every means to disrupt their lives.

      I suggest all prosecutors and judges that are in a position to sentence a person to jail, should have to spend a few months there to see what they are inflicting on another persons life.

      Jurors need education as well,they need to be made aware that prosecutors do have something to gain from a conviction or how many have knowingly sent innocents to jail by hiding evidence that could have exonerate them.
      Truly I don't know where they get so many jurors, the justice department has done so much damage to so many citizens, not sure how they find anyone who is still believing their lies.

    3. The Judge and clerk set Him up.....or tried to....
      Big grounds for appeal....After reading this, this was corrupted by the Judge....He was the problem, who knows what His motive was...

  2. "THE LITTLE DAMMING PAPER BOY" sung to the tune of "The Little Drummer Boy"

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  3. How do the people that run this site think that having a new story every two or three weeks is a good thing and will keep readers interest??????

  4. It's not a good thing, but you're dealing with a couple of part-timers here who have a bunch of other things going on, and when it comes to blogging, we kind of pick our spots.

    We've thought about expanding the concept, as well as the staff, but resources are always a problem. Unless you know somebody who wants to write us a big check.

    Meanwhile, there are stories on this website that don't appear anywhere else.

    1. Like the story above. The whole issue of what happened with this dismissed juror in the Chaka Fattah case came from the enterprise work of the reporters on this website.

  5. Well there are only two of them to cover Philadelphia,it seems we all want someone to tell the truth about what goes on in a courtroom, instead of the prosecutions version we get from the INKY. No matter when the truth is told its refreshing and eye opening.

    Obviously we all thirst for the true and accurate facts. Supplement your desire for honesty by reading THE MARSHALL PROJECT daily or by reading THE NATIONAL REGISTRY OF EXONERATIONS to hold you over till the next addition of Big Trial.

    I think the questions should be" How do people that cover the courts for the INKY expect people to have any interest in only one side of a case"??????


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