Wednesday, August 18, 2010

Blagomania! What the jury did... and didn't say

I have never felt more alone than I have on those rare occasions when I have stood at counsel table and watched a jury file in to announce its verdict.

All my jury experience, such as it is, has been in civil cases. I have never tried a criminal case to verdict before a jury. I can't imagine the feeling would be any less.

In any case, and not just in the Blagojevich case, the jury comes back when it's darn good and ready. It usually doesn't take three weeks. In the cases I have tried, it has generally taken only a few hours.

A few, long, agonizingly long, hours.

As a trial attorney, you have put your whole heart and soul (lawyers really do have both, you know, even if in diminished quantities) into a case. You have come to identify with your client (in Horace Rumpole's phrase, the person "whom I have the honor to represent") to the point where it may be difficult to distinguish where the client stops and you begin. Some of Sam Adam Jr.'s comments to the press during the lengthy deliberation in the Blagojevich case illustrate this rather well.

You've left a phone number with the court clerk where you can be reached when the jury is ready. You have been warned not to go far -- not that you could -- not that you would. You are almost too weak to walk, too addled to think about other things that may have piled up while you have been immersed in this case.

You may go in search of liquid courage. There was a bar, once upon a time, in the basement of the Brunswick Building, now the George W. Dunne County Administration Building, right across from the Daley Center. I went there on a couple of occasions. But it's been gone for years. Lawyers of a certain age have all heard stories about colleagues who were too drunk to stand for the jury without leaning on the counsel table.

Once, in DuPage County, the learned trial judge admonished us, after the jury had retired to deliberate, not to go to the Viking. Wheaton was a dry town in those days and the Viking -- it was west of town, I think -- was the closest place to go for a drink. After issuing this warning, the judge left the bench.

I was packing up to go when the courtroom deputy sidled up to me. "You're a young man," he said -- and it was true, at the time -- "and maybe you didn't take that seriously. Take it seriously."

I did. I found a place in town where I had nothing stronger than a bowl of soup. Later, this judge would be assigned to a special DUI call. He was particularly tough on persons convicted of DUI.

But now the phone has rung -- cell phones now, I'm sure -- and now the jurors, who are eager to go back to their lives, must wait for you and your opponent and for the judge. (In a civil case, the client need not be present for the verdict.)

But, whether the client is present or not, you, the trial attorney, are miserably alone as the jury files back into the box. You try and make eye contact with one of them -- any of them. Most will look down at the ground. Once or twice my desperate telepathic plea for eye contact was returned with a reassuring glance and maybe the barest hint of a smile. On those occasions, I began to hope. Sometimes I've seen that moment between a juror and my opponent. On those occasions, I tried my hardest not to sag.

When the verdict is read, there is a moment when you are entirely empty. If the verdict is favorable, you start to swell with happiness and the relief comes off of you in waves. So palpable are these waves, it's a wonder the persons standing nearby are not knocked over.

But if the verdict is unfavorable, the emptiness remains. You mechanically ask that the jury be polled -- and you hear the bad news all over... and over... again. "Was this then and is this now your verdict?" "It is." The judge will thank the jury for its service and may have gracious words for you as well... but you probably don't hear them. The judge will tell the jurors that they may -- but they do not have to -- talk to the attorneys on the way out. As the jurors return to the jury room one final time to gather their things, you may remember to stick out your hand to your opponent in a gesture of congratulations. You will smile at the jurors on their way out. Some may even have kind words for you as they pass. Some may offer advice that you'll try to remember when you explain what happened back at the office. If the jurors want to talk with anyone, though, it's usually with the victorious attorney. A lot of times -- as happened yesterday at the Blagojevich trial -- the jurors will just want to get out of Dodge.

None of the lawyers had a happy feeling yesterday in Judge Zagel's courtroom. Messrs. Adam et al. had accomplished a rare feat in Federal court -- they had kept their client from being found guilty on all charges. I heard a number during the course of the news coverage yesterday: Fully 96% of the criminal trials in the Northern District result in guilty verdicts. If that's true, the accomplishment of Blagojevich's trial team can not be minimized.

But their man still faces a new trial. The Feds will seek the earliest possible trial date -- and Blagojevich will probably seek the longest possible date, perhaps to get new counsel: He's out of money with which to pay his lawyers.

The prosecutors must have had the most empty feeling of all. Mr. Fitzgerald addressed the media -- briefly -- but not the actual trial attorneys.

And though the jurors would not talk in the courtroom, several have been hunted down by the media since and have talked. There was an 11-1 split, in favor of conviction, on the charge of attempting to sell Barack Obama's seat in the U.S. Senate. There was an 11-1 split, in favor of conviction, on the charge of attempting to shake down White House Chief of Staff Rahm Emanuel (Blagojevich's successor in the 5th Congressional District). But though there was only one dissenter on both of these charges, these dissenters were different jurors. (The Emanuel count had been unanimous before last weekend.)

But the important thing, for the prosecutors mapping out their strategy for U.S. v. Blagojevich: The Sequel must keep in mind that, on the other charges, the splits were less lopsided -- on at least one, apparently, an actual 6-6 split. The evidence or the presentation, or both, will have to be rethought. Maybe some of the high profile people who were allegedly involved in Blagojevich's schemes will have to testify after all.

Maybe the tactic of trying to take down Blagojevich's brother should be rethought -- he'd worked for his brother for only four months before he was arrested. The jury could not decide the brother's guilt or innocence either. Maybe Robert Blagojevich should be given immunity from prosecution -- perjury on the stand at the second trial excepted, of course -- so that he can be made to testify, however reluctantly, against his brother.

Blagojevich crowed to the media that the jury said the government had failed to prove him guilty of any charge of corruption -- and that's true. (The one conviction was for lying to the FBI -- which was, in this case, apparently a gimme putt.) However, the jury did not acquit him of anything. There is nothing in that verdict upon which he can reasonably claim exoneration.

I eagerly watched the wall-to-wall news coverage last night. But I couldn't stop thinking about how empty both sides must have felt because of what the jury said... and didn't say.


Dave said...

A perfect description of the end of trial.

Empress Bee (of the high sea) said...

i have been on so many juries, i don't know why they keep coming after me but they do. anyway i can tell you the old men always want to hold the verdict until they get the next free meal delivered. and i always tried to make eye contact with the winner (so to speak) on the way back into the courtroom but always found most didn't look up.

smiles, bee

Ellee Seymour said...

I like watching The Perfect Wife and the legal cases she deals with. Our system in the UK is still so traditional and polite, and I do find it interesting to see the differences in our judiciary system.