Friday, December 30, 2016

Will 12th Juror Flap Keep Chaka Out Of Jail?

By Ralph Cipriano

Lawyers for former U.S. Congressman Chaka Fattah are arguing that he should stay out of jail while an appeals court decides whether Judge Harvey Bartle III abused his authority by dismissing a dissident juror who didn't think that the government had proved its political corruption case against Fattah beyond a reasonable doubt.

Fattah, a former 11-term congressman, was sentenced earlier this month by Judge Bartle to 10 years in prison after a jury in July convicted Fattah of conspiracy to commit racketeering, wire fraud and honest services fraud, as well as falsifying records and laundering money. Fattah, currently free on $100,000 bail, is scheduled to report to prison on Jan. 25th.

But according to Fattah's lawyers, who filed a motion for bail today, there is a "substantial question" on appeal likely to result in a reversal of the former congressman's conviction. That question: whether Judge Bartle committed an "abuse of discretion" when he booted dissident Juror No. 12.

"In short, a substantial issue will be presented on appeal whether it was an abuse of discretion for the trial court to question jurors at an early stage of deliberations without good reason to suspect juror misconduct, to intrude on the jury's deliberative process, and then dismiss a juror who had serious doubts about the government's case," wrote lawyers Samuel W. Silver, Bruce P. Merenstein and Mark M. Lee in a motion filed today in U.S. District Court.

The lawyers cited a recent appeals case where the D.C. Circuit held that a trial court may not remove a juror "if the record evidence disclosed any possibility that the request to discharge stems from the juror's view of the sufficiency of the government's evidence."

"Here, the trial court ignored each of these principles in questioning five jurors and then dismissing Juror No. 12," the defense lawyers wrote about Judge Bartle. "First, the court engaged in unnecessary and invasive questioning of the jury when it examined almost half the jury on the basis of complaints that, just a few hours into deliberations, Juror No. 12 was unwilling to change his vote and had prevented the jury from reaching any verdicts."

"Second, the court's willingness to dismiss Juror No. 12 on the basis of, in effect, six words the juror purportedly said to the court's deputy, was an abuse of discretion not supported by the case law involving removal of a juror," the lawyers wrote. "There was much more than a reasonable doubt or a reasonable possibility that other jurors' complaints about Juror No. 12 were based on his view of the government's case -- or his unwillingness to change his vote and create a unanimous guilty verdict, as indicated in the note from the foreperson and some of the jurors' testimony."

The six words allegedly uttered by Juror No. 12: "I'm going to hang this jury."

When asked by Judge Bartle if he said those six words to the court's deputy, Juror No. 12 replied, "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."

At the request of the prosecutor, Judge Bartle then dismissed the jury, finding "that he did tell [the deputy] that he was going to hang this jury no matter what." The judge also ruled that because the jury had deliberated for only four hours, "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 on the law."

The judge found that Juror No. 12 "delayed, disrupted, impeded, and obstructed the deliberative process, and had the intent to do so." The judge also found that the juror had "violated his oath as a juror" because of his alleged intent on "hanging the jury no matter what the law is, no matter what the evidence is."

In their motion for bail, Fattah's lawyers argue that the judge's "findings" had "no support in the [trial] record."

"For example, no evidence, including the testimony of the courtroom deputy, supported the finding that Juror No. 12 said that 'he was going to hang this jury no matter what . . . no matter what the law is, no matter what the evidence is.' "

"Rather, the juror purportedly told the deputy simply that "I'm going to hang this jury," a statement that could have meant that the juror did not expect to be persuaded by the arguments of the other jurors," the defense lawyers wrote.

The deputy clerk testified that Juror No. 12 also told her, "It's going to be 11 to 1 no matter what."

That comment, however, followed what Juror No. 12 "described as cruel comments from other jurors" mocking Juror No. 12's military record, the lawyers wrote. "In any event, nobody testified that Juror 12 said he would hang the jury 'no matter what the law is, no matter what the evidence is.' "

"Finally, the court's reliance on the fact that Juror 12 remained skeptical of the government's evidence, when there supposedly was 'no way in the world he could have reviewed and considered all of the evidence in the case and [the court's] instructions on the law' ignores that the other jurors plainly had reached their own conclusions regarding the law and the evidence in the same amount of time and were impatient with Juror No. 12 for not agreeing with them after just a few hours."f

In the jury room, Juror No. 12 wound up on the short-end of eight straight 11 to 1 votes to convict.

The other argument the defense lawyers presented to keep Fattah out of jail involved a unanimous ruling by the U.S. Supreme Court on July 27th -- just six days after the guilty verdict in the Fattah case -- that overturned the conviction of former Virginia Gov. Bob McDonnell.

McDonnell was convicted on federal corruption charges in 2014 for taking gifts, money and loans from the CEO of a Virginia based company in exchange for officials acts that allegedly benefitted the CEO and his firm. The case centered on what was the definition of an official act.

"There is no doubt that this case is distasteful; it may be worse than that, " wrote Chief Justice John Roberts. "But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns. It is instead with the broader legal interpretations of the government's boundless interpretation of the federal bribery statute."

In the Fattah case, the congressman was accused of committing official acts when he wrote letters to President Obama and U.S. Senator Bob Casey, and arranged a phone call with the White House, "in support of [co-defendant] Herb Vederman's long-shot quest for an ambassadorship," the defense lawyers wrote.

"The government's own evidence at trial was unequivocal that neither the Senator nor the White House took this single request from a single federal legislator seriously," the defense lawyers wrote.

"Thus the application of [the McDonnell case] to the bribery-related charges" in the Fattah case also "raises a substantial question on appeal," the defense lawyers wrote.

On the docket, the appeals court acted quickly, giving the government's lawyers until Jan. 4th to respond to Fattah's motion for bail.


  1. No. A judge can remove an unreasonable juror if this is hindering the jury's ability to reach an verdict. This is something that does happens frequently and not a reason to grant a new trial for the defendant .

  2. Treating people how you want to be treated should be a part of our daily civility, I wonder if Bartles life hung in the balance if he would feel the same way. Siding with the prosecution should not be part of his job description,but time and time again judges show where their loyalties lie.

    When the government realizes we are all on the same side, instead of turning family members,coworkers and the public against one another all for the sake of a conviction,will America will move forward.

    The feds are good at causing discord among their fellow citizens. Being treated like a subhuman by the media and the justice department does not endear one to its government. What loyalty does one owe a government that betrays its own citizens.

    The absurdity of the charges the prosecution have been filing need to be questioned by the public. I don't want my government to entice old women with bracelets as birthday gifts, set up phony traffic stops to trap Traffic Court Judges, bankrupt families,rearrange facts to grand juries to gain indictments. When do we get to say stop.

    I don't want prosecutors to hold life and death over another human.I don't want prosecutors to lie, I don't want FBI agents to lie, I don't want IRS agents to lie and most of all I don't want a media that hides facts from the public.

    We are warehousing humans in our country, its not working , in fact all its accomplishing is breeding hatred for the very government inflicting the punishment. Crime exists ,there is no doubt and we need a strong legal department, not one that is self serving.
    Without the media coming to the aid of the public there will be no justice.
    What I do consider criminal is when prosecutors turn at best an ethical violation into a criminal act. How is it that they are allowed to cross the line and convince the public that a criminal act occurred.If the public was not force fed the prosecutions side we may be able to think for ourselves, something the feds and media has been discouraging for years . We need prosecutors to stop inventing crimes.

    Prosecutors that lie to grand juries to get indictments should go to jail. Bartle erred by removing the one opposing juror.Judges don't care, same as prosecutors as long as they get a conviction, let the defendant appeal.

  3. An insightful opinion. Thanks for sharing...

  4. I hope he becomes a better man. Politics in this city will get you behind bars if you play their game.


Thoughtful commentary welcome. Trolling, harassing, and defaming not welcome. Consistent with 47 U.S.C. 230, we have the right to delete without warning any comments we believe are obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Note: Only a member of this blog may post a comment.