Battle Over 12th Juror Continues With Two Fattah Co-Defendants

By Ralph Cipriano
for BigTrial.net

In a battle over whether two co-defendants of former U.S. Congressman Chaka Fattah are entitled to bail while they appeal their convictions, defense lawyers claim that the government is ignoring the testimony of five jurors in the case, as well as the improper actions of the trial judge in removing a dissident juror.

The defense lawyers were responding to a brief filed Monday by the government that asked the Third Circuit Court of Appeals to deny bail motions for Fatttah codefendants Robert Brand and Karen Nicholas.

Neither of the codefendants "present a substantial question that is likely to result in a reversal or new trial on any counts on which a sentence of imprisonment has been imposed," wrote Acting U.S. Attorney Louis Lappen, Assistant U.S. Attorneys Eric L. Gibson and Paul L. Gray, and trial attorney Jonathan Kravis.

"There is no justification for granting either Brand or Nicholas bail during appeals," the prosecutors conclude. "Accordingly, the government respectfully submits that the appellants' motions for bail pending appeal should be denied."

In their argument, the government stated that Judge Harvey Bartle III was responding to two notes from the jury foreman that alleged misconduct on the part of Juror No. 12, who was on the short end of eight straight 11-1 votes to convict.

In the first note, the jury foreman charged that Juror No. 12 "refuses to vote by the letter of the law."

"He has the 11 of us a total wrecking knowing that we are not getting anywhere in the hour of deliberation yesterday and the three hours today," the jury foreman wrote. "We have zero verdicts at this time all due to Juror No. 12 . . . Juror No. 12 has an agenda or ax to grind w/govt."

A second note, written by the jury foreman and signed by eight other jurors, stated that Juror 12 "is argumentative, incapable of making decision" and "constantly scream[s] at all of us."

While he investigated the jury foreman's complaints, the judge interviewed five jurors. The judge also called his deputy clerk as a witness. She testified that Juror 12 told her, "I'm going to hang this jury," and, "It's going to be 11 to 1 no matter what."

When Judge Bartle asked Juror 12 if he was refusing to deliberate, he responded, "I'm not just going to say guilty because everybody wants me to, and if that hangs this jury, so be it."

In response to the government's argument, lawyers for the codefendants Robert Brand and Karen Nicholas criticized the actions of the trial judge.

"The government's response concerning the juror issue speaks volumes through what it does not say," wrote Ann Campbell Flannery on behalf of Karen Nicholas yesterday in a reply filed yesterday.

"The government virtually ignores the five juror interviews, focusing instead on the notes that triggered the inquiry and the testimony concerning the comment made to the deputy clerk," Flannery wrote.

"The juror interviews -- which were similarly ignored or contradicted by the trial court's findings -- raise ambiguity as to whether the root of the problem was, in fact, Juror 12's contrary view of the evidence on a particular count and the other jurors' impatience in wanting to move on with a unanimous verdict on that count, rather than a refusal on the part of Juror 12 to deliberate."

"The juror interviews also create ambiguity as to the meaning of the juror's statement to the deputy clerk, since 'no matter what' was in the context of other jurors having written to the judge behind his back, complained about him to the court (complaints to which the court advised him), called him names, "pounced on him" after he cast a dissenting vote, etc.," Flannery wrote.

Flannery criticized Judge Bartle for not instructing the jurors to listen to each another and reexamine their views before he "directly intervened" in the jury's deliberations after just four hours "with interviews and dismissal" of Juror 12.

"The resounding (if unintended) message to the remaining jurors was that if someone dissented, the other jurors could obtain swift intervention and relief by complaining to the court," Flannery wrote. "The government completely falls to address this point."

Her client, Karen Nicholas, was found guilty last June on six counts of a 29-count racketeering conspiracy indictment, and was 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, whom he sentenced to 10 years in prison, and his scheduled to report Jan. 25th. Lawyers for Fattah have previously filed a motion for bail during his appeal.

In their reply in support of Robert Brand's motion to continue bail pending appeal, lawyers Barry Gross, Meredith C. Slawe and Mira E. Baylson argue that the government did not address Judge
Bartle's "unmethodical selection of only five jurors for in camera void dire, nor does it speak to the variations in questions asked of each of those jurors."

"Instead, the government's opposition in no way way refutes Mr. Brand's contention that the process used to investigate and discharge Juror 12 presents a substantial issue for appeal," the lawyers wrote.

The government, however, contended that Judge Bartle's decision to question jurors and then remove Juror 12 for failing to deliberate was "fully consistant with well-established Third Circuit precedent."

The judge was investigating allegations of juror misconduct, the government lawyers said. And that  Judge Bartle's decision to question jurors in the case was "further supported by the second note, signed by nine different jurors, alleging that Juror 12 was screaming at them and impeding deliberations."

The judge also wasn't required to "reinstruct the jury once [he] made a finding of juror misconduct," the government lawyers argued.