Monday, January 2, 2017

Judge's Argument For Dismissing 12th Juror Doesn't Hold Water

By Ralph Cipriano

When he explained why he dismissed a dissident juror in the Chaka Fattah case, U.S. District Court Judge Harvey Bartle III advanced an argument that doesn't hold water.

"There have been only approximately four hours of deliberation," the judge declared on June 16th in a memorandum released last month, after lawyers for The Philadelphia Inquirer had to go to court to unseal it. "There's no way in the world," the judge further declared, that Juror No. 12 "could have reviewed and considered all of the evidence in the case and my instructions in the law."

The judge then concluded that Juror No. 12 had not only violated his oath as a juror, but also "delayed, disrupted, impeded, and obstructed the deliberative process, and had the intent to do so."

But according to an interview with Juror No. 12, and court transcripts, the judge's logic disqualifies the other jurors in the case -- including the jury foreman -- who were repeatedly voting in the majority to convict, without a shred of evidence in the jury room. At a time when some of those jurors mistakenly believed that the government's indictment was evidence.

According to an interview last July with Juror No. 12, seven minutes after deliberations began in the Fattah case, the jury foreman announced that he wanted to take a vote "just to see where we are" on the most serious charge in the case, an alleged racketeering conspiracy that involved the congressman and four co-defendants.

The conspiracy involved the procuring of a $1 million loan from a wealthy donor to pay for Fattah's campaign expenses from his unsuccessful 2007 campaign for mayor of Philadelphia. The money was supposedly laundered in the form of a bogus loan made by the wealthy donor to a political consultant, Thomas Lindenfeld, who subsequently became a government witness and testified against Fattah.

However, the jury foreman's desire to start at the top of the 85-page indictment with the racketeering conspiracy that allegedly involved all five defendants didn't make much sense to Juror No. 12.

"If there's no loan, there's no conspiracy," Juror No. 12 argued. "There's nothing tying him [Fattah] to the loan." At least on paper, the loan was between the wealthy donor and the political consultant; Fattah was not mentioned anywhere on the loan documents, or in any other written evidence.

There was another problem on the first day of deliberations, as explained by Juror No. 12. When the jury foreman wanted to take that first vote on the alleged racketeering conspiracy involving the loan, none of the evidence -- in the form of some 400 trial exhibits -- was in the jury room.

That's what Juror No. 12 said when I interviewed him last summer. We now know from a court transcript that it was true.

That's because on the day that the jury began its deliberations, July 15th, Mira E. Baylson, a lawyer for Fattah co-defendant Robert Brand, was telling the judge in a sidebar conference that there was a problem with the evidence. Namely that the government had submitted at the last minute some 20 new documents never previously admitted as evidence.

"I'm sorry you didn't tell me before this," the judge said. "What are we going to do? Tell the jury not to deliberate?"

"Your Honor, we received the exhibit list just this morning," Baylson told the judge. "I've been working diligently on it with [federal prosecutor Jonathan] Kravitz to try and work" this out.

"There are 20 exhibits on the government's list that, to my knowledge, were not admitted," Baylson said. "We have agreed that 11 of them were not admitted. There are 9 that we are still checking on. That is the issue right now."

"We'll just tell them [the jury] they get the exhibits in the morning and that's all," the judge said. "But let's work on it tonight." The judge added that he wanted the matter resolved "the first thing in the morning."

Two days later, on July 17th, the judge ordered that the other 9 new government documents be stricken as evidence.

The fact that the jury was deliberating and voting on individual charges in the indictment on the first day of deliberations without any evidence to review was also confirmed in a footnote in Fattah's motion for bail filed last week.

"In fact, during that first short deliberation session, the jury only had the court's instructions, the verdict sheet, and the indictment," Fattah's lawyers wrote.

When he was interviewed by the judge in chambers last July, Juror No. 12 provided more details about that first day of jury deliberations.

"Within the first half hour they wanted to take a vote," Juror No. 12 told the judge. "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."

"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."

According to Juror No. 12, the jury began deliberations, at his insistence, by considering the charges at the bottom of the 29-count indictment. On three votes, the jury split 11-1, in favor of a conviction. The jury foreman also admitted to the judge that he told Juror No. 12 to sit down and shut up, something he subsequently apologized for.

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."

According to Juror No. 12, the jury took five more 11-1 votes on the second day of deliberations. That was a total over two days of eight straight 11-1 votes to convict, with Juror No. 12 always on the short end of every vote.

The last 11-1 vote that the jury bogged down on concerned a charge involving Karen Nicholas, a Fattah co-defendant accused of lying to the federal government on an application for a grant to fund an educational conference sponsored by Congressman Fattah.

While he was interviewing jurors, 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.

He may be right.

After the judge dismissed Juror No. 12 from the case, the judge instructed the jury that the 29-count indictment was not evidence, but merely a set of allegations that had to be proven beyond a reasonable doubt.

When he was interviewing jurors, the judge asked another juror, Juror No. 1, whether Juror No. 12 was willing to follow the judge's instructions.

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

But according to Judge Bartle's logic, Juror No. 12 is the guy who violated the juror's oath.

The juror who pored over the judge's instructions. The juror who kept pointing to the evidence in the case. The juror who wanted to start deliberations in a logical fashion, at the bottom of the indictment, with the least serious charges, and work his way up. Rather than start at the top of the indictment, with the broadest and most serious charge, and work his way down.

The only juror in the room, apparently, who understood that the indictment wasn't evidence.

That's the guy who Judge Bartle decides to kick off the panel; the guy that the judge said had impeded jury deliberations and violated his oath as a juror by disagreeing with the majority.

Meanwhile, it's apparently OK with the judge that the jury foreman, according to Juror No. 12, was ready to vote within the first seven minutes, without any evidence in the room, on the most serious charge at the top of the indictment. And apparently without anybody taking any time to consult the judge's instructions.

According to Juror No. 12, this is a jury that on day one of deliberations took three straight 11-1 votes without any evidence in the room. At a time when some members of the jury believed that the indictment was evidence.

A jury that took five more 11-1 votes on Day 2 of deliberations. With some members of that jury still thinking the indictment was evidence.

Apparently, that was also OK with the judge. As long as the jury arrived at the proper conclusion.

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