Wednesday, January 4, 2017

Defense Lawyers Pound Away At "Rash, Unmethodical" Judge Bartle; Feds Respond By Saying He Did Everything By The Book

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.


  1. There seems to be more interest in a sports-writers ejection from a press box than a juror that could have saved a man from prison making news. I noticed in a recent article a writer uses the word unfathomable when he talked about the sports situation, what could be more unfathomable than the disregard for human life,not to mention the judicial system.
    I have been trying to work out why people don't care, is it because it did not receive the coverage it deserved,not on the nightly news, not a news flash on our smart phones. Did it need better descriptive wording as a heading, like the sports article and should have read "At deliberations, a failure to communicate" or possibly "The most unfathomable thing happened at the justice department today, a judge dismissed a juror that was trying to deliberate",to see if that got people outraged.

    The writer goes on to mentions how important it is to develop a good relationship with media, that's exactly what the prosecutors have with the media now, a good working relationship. Printing the usual bogus prosecution side of a case to condemn the defendant before setting foot in a courtroom. Maybe we should be more concerned about what message we are sending Americans about their justice department.

    The message I hear is that we have become so callous to human suffering that a man's life does not matter. Defendants that have already been condemned by the media surely must be guilty, why bother to deliberate, federal prosecutors or judges cant ever be wrong,they certainly would never condemn an innocent person just to get a conviction or use the media to enhance their case. That should seem unfathomable to the public, but its true.

  2. Couldn't agree more. And to make the point clearer, the Inquirer has not reported on any of these bail motions or provided any in-depth coverage of what happened in the judge's chambers, even though they had the same documents I did.

    Instead, they just went with the judge's self-serving talking points, that Juror No. 12 was going to hang the jury no matter what.

    1. This is the same paper that also somehow missed the FBI agent lying and getting caught by the defense team at the Traffic Court trial.

      This is outright abuse of their power over public opinion. In our current atmosphere of political unrest, this practice has to be halted.
      Defendants should have their attorneys sue individual reporters, as well as the newspaper, for fostering contempt of their clients.

      Being party to hiding evidence is a crime, reporters should suffer the same fate as anyone else, this crosses the line. The public deserves more from reporters employed by one of the major newspapers in the United States.

  3. I have decided to polish off my resume and send it to the federal building, I think I have this federal prosecutor job worked out. I don't know why I did not think of it before,or why there are not millions of people clamoring to be prosecutors. Imagine a job where you have the admiration of your fellow citizens, your idolized ,the public hangs on your every word always ready to follow your directions to the letter.

    This seems to be the job description, first make up an outrageous lie about say, a politician or someone that knows a politician or even someone that heard the word politician once in their lifetime.

    Next convince a grand jury that the politician cooked up a scheme to benefit himself or his family or his friends, no matter how far fetched the scheme may sound.
    This is the most important step, find someone of questionable character, someone that has committed a crime or has a drug problem or someone that you can promise a lighter jail sentence by testifying against the defendant. This seems to be the only play they use.

    After securing an indictment, head over to the local rag and lay out your plan, making sure to have the paper run the damaging misinformation multiple times and for any reason whatsoever to inflict damage upon the defendants character. Having them be forced to resign is always a plus the media is especially good at achieving. Making sure they drag up every indicted politician since Tammany Hall is useful.

    This seems also to be the most fun, along the way you get to threaten all the defendants co-workers, family members, neighbors, first grade teachers and mailmen with jail time for not siding with the prosecution, all the while feeding the media with new updates. Seems easy so far, you have the FBI and IRS to side with you, everyone loves the FBI, not the IRS , but the jury eats it up. Who would distrust the seekers of justice.

    The next part seems to the easiest, the trial, just show up, the judge is on your side, the jury too, having digested years of constant degradation of the defendant. Another perk, no need to dress up, its preferable to wear a well worn suit to all your court appearances, whereby proving to the jury that you are a poor public servant and justice is all that matters to you. Remembering not to look like one of those unscrupulous defense attorneys that usually show up looking smart and polished. Nothing to worry about though, jurors wonder why there are defense attorney anyway, the media said the defendant was guilty, why bother defending them. People believe what reporters write,they believe it has to be true, it was in the newspaper, no one would dare to accuse a large publication of spreading fake news.

    The best part is when you are finished being a prosecutor you jump into a large law firm as a high priced defense attorney defending defendants indicted by your former fellow federal prosecutors.

    Image getting to tell your grandchildren of the notorious politicians you were able to wrangle off the streets thereby making life so much safer for them. No need to tell them that there were ethics boards that could have handled the matter, all the kids need to know is you saved the day.
    Now where is my fancy resume paper.

  4. I would say that change is long overdue at the INKY, a new platform for the new year is needed, being unable to bring the public true and accurate facts is inexcusable for a newspaper.

    If I were the editor I would be asking why my reporters covering the trial were not getting the facts correct, they would have much to answer for, as its an embarrassment as well as misleading to the public.

    Much like the feds withhold crucial evidence at trial ,the paper seems to be withholding crucial facts the public needs to know. I can tell you I am very disappointed in their type of reporting.

    Fake news making headlines is frightening but finding out our major source of news is distorting facts under-minds our confidence in their ability to represent all people.


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