Twelfth Juror Stars In Chaka Fattah Appeal

By Ralph Cipriano
for BigTrial.net

While former U.S. Congressman Chaka Fattah sits in jail, his lawyers are trying to get him a new trial.

Their best shot involves pro-prosecution Judge Harvey Bartle III, and his ham-fisted ejection last summer of Juror 12 from the Fattah case, simply because that juror had the temerity to disagree with the government.

Fattah's appeal was filed earlier this month in the United States Court of Appeals, Third Circuit, in the matter of USA v. Chaka Fattah, Sr.

Any appeal is a long shot, but if the Court of Appeals signs off on Judge Bartle's decision to remove a dissident juror merely because he was a dissident, what's the point of having a jury trial when it involves a Philadelphia politician accused of corruption? We might as well just pronounce the defendant guilty upon indictment, and send them straight to jail. So we can spare the taxpayers the cost of a lengthy trial, and stop wasting time with any nonsense about constitutional rights.

Let's remember that in the birthplace of Democracy, there's one newspaper that sets the agenda for the rest of the local media -- The Philadelphia Inquirer.

And since that newspaper has had an unholy alliance with prosecutors since the days of Harry Karafin, any allegations of corruption are treated as proven facts by the Inquirer the minute an indictment is released by the U.S. Attorney's office. Or the minute the allegations in that indictment are leaked to the Inquirer, in advance of the official release, for the purpose of additional damaging pretrial publicity.

Regardless, the Inquirer keeps a permanent spot on their front-page open for the next breathless story about official corruption emanating from those beacons of light at the U.S. Attorney's office. The end result: by the time a defendant finally goes to trial, especially a Philadelphia politician accused of corruption, he's already been convicted in the media. No matter what crazy theory the prosecutors are running with.

The game is so out of whack here in Philadelphia that the prosecutors can take a couple of milquetoasts, say Chaka Fattah and Herb Vederman, and convince people that they're dangerous racketeers. Yes folks, in the Fattah case, the congressman and his diminutive aide were prosecuted under the RICO Act, as if they were John Stanfa and Skinny Joey Merlino.

It doesn't matter how goofy the prosecution's theories are. Here in Philadelphia, the Inquirer can be counted on to run with them without expressing a critical thought. All that's needed on the criminal justice railroad that runs through Philadelphia is a rubber stamp from the jurors.

What went wrong in the Fattah case was that Juror 12, a former U.S. Army paratrooper from Lancaster County, didn't think that the government had proved his case. A white guy from Amish country didn't think there was any evidence to convict a black congressman from Philadelphia of corruption.

Fattah was accused of secretly orchestrating a plot to pay for his campaign expenses with a $1 million loan borrowed from a wealthy campaign contributor. But before he sent a guy off to jail, Juror 12 wanted some proof. And when he looked at the evidence, what did he discover?

"There was nothing directly tying him [Fattah] to the money," Juror 12 told me in an interview last year. The congressman "did not ask anybody to borrow money on his behalf," Juror 12 said. The only evidence in the case against Fattah was the testimony of a couple of cooperating witnesses that Juror 12 didn't think were credible.

One of those cooperating witnesses was Thomas Lindenfeld, a former political consultant to Fattah who got jammed up by the feds.

According to the evidence presented in court, Lindenfeld "lied to his wife, his family, his business partners, and those close to him," Juror 12 said. " So why would I believe anything he said to save his own skin? If you're gonna lie to them, why wouldn't you lie to me?"

Sounds reasonable. Juror 12's problem was once he looked at the evidence, and formed an opinion about whether the government had proved its case, he wasn't going to change his mind.

That became a problem with the rest of the jurors, some of whom thought that just the allegations printed in the indictment amounted to sufficient proof of criminal activity. That, of course, would qualify them for jobs as Inky reporters and editors.

Stepping into the breach was Judge Bartle, a former state attorney general, who was determined to make sure that justice was done in his courtroom. The right kind of justice. Standing in Judge Bartle's way was the U.S. Constitution.

"The trial court abused its discretion by inserting itself into the jury deliberations and then dismissing a juror who did not view the evidence as the rest of the jury did," wrote lawyers Samuel W. Silver and Bruce P. Merenstein in a 64-page appeal brief. "The constitutional rights to due process, impartial juries, unanimous verdicts, and guilt only upon proof beyond a reasonable doubt all serve to protect a criminal defendant from the overwhelming pressure that can be brought to bear on a lay jury."

In their brief, Fattah's lawyers said that the judge's decision to question any jurors in the Fattah case was "improper and prejudicial."

"Barely a half-day into the jury's deliberations, the trial court questioned five jurors about those deliberations and then dismissed a juror who, according to some of the other jurors, would not view the evidence the way they did and would not vote with them to convict the defendants," the lawyers wrote.

The judge had "no basis to question the jurors in the first place," the lawyers wrote. The judge's interviews with the jurors, and a couple of jurors' notes revealed "nothing more than healthy disagreements over the merits and normal deliberations among jurors in a criminal case," the lawyers wrote. "Thus, the trial court abused its discretion in dismissing the dissenting juror and a new trial is required to remedy this error."

"The results of the trial court's questioning of the jurors confirmed that there was no legitimate grounds for removing Juror 12," the lawyers wrote. "The foreperson testified that Juror 12 wouldn't change his vote and that it was 'everybody pretty much against this guy.' The foreperson clearly was frustrated that no matter how much other jurors argued with Juror 12, he would not interpret the evidence the same way as they did, and that he insisted on reviewing the evidence very closely."

And when the judge interviewed Juror 12, it was his undisputed testimony that "while he pointed to evidence to justify his dissenting vote, other jurors rejected his arguments and 'pointed to the indictment.'"

"When he [Juror 12] reminded the other jurors that the indictment was not evidence and pointed to the jury charge that was supposed to guide their deliberations, the other jurors ignored him and simply insisted on taking another vote," the lawyers wrote.

Juror 6 conceded to the judge that Juror 12 was 'participating in the process' and was reviewing the evidence. He was just "being obstinate," Juror 6 told the judge. "He's being different."

In Judge Bartle's courtroom, this was a problem. Hopefully, the appeals court will remind the judge that you can't toss a juror off a case for weighing the evidence and following one's conscience.

If not, God help us.

A final note about how rigged the criminal justice game is in Philly: Last week, the Inquirer ran an Associated Press story about the Fattah appeal. [Apparently, the newspaper's own reporters were too busy to do the story].

The AP story is six paragraphs long and doesn't even mention the argument over the 12th juror. Even though that argument is the lead argument in the brief, and is discussed on, by my count, 28 of the appeal brief's 64 pages.