Will 12th Juror Flap Keep Chaka Out Of Jail?

By Ralph Cipriano
for BigTrial.net

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.