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August 03, 2016

Should Chaka Fattah trial have ended with a hung jury?

In exclusive interview, dismissed 12th juror says he wasn't refusing to deliberate, his mind was just made up

Should the racketeering and political corruption trial of U.S. Congressman Chaka Fattah and four alleged co-conspirators have ended in a deadlocked jury?

That was the situation behind closed doors in June on the second day of deliberations in the case, according to Juror No. 12.

In an interview, the juror, who sought anonymity, said that after two days of deliberations, he was on the short end of at least eight 11-1 votes. At least eight times, according to Juror No. 12, all the other jurors voted in favor of convictions, while Juror No. 12 was the lone holdout, voting not guilty every time.

“It was 11-1 for five hours straight waiting for me to change my mind,” Juror No. 12 stated. “I said, ‘I’ll hang the jury. I’m not gonna change my mind.' ”

“They were talking about getting rid of me right away,” he added. “In the first hour, people were yelling at me, ‘You’re an idiot.’”

“I sat through a month-long trial,” said the juror, a Lancaster County resident who works as a salesman. “I read all the evidence again and again. Why should I change my mind?”

But, he said, his fellow jurors wanted to vote again on the last charge that he had just voted not guilty on. He said he told his fellow jurors they could take another vote, but he wasn’t going to change his mind. That’s when, according to Juror No. 12, the jury foreman accused him of refusing to deliberate, and said he was going to send a note to the judge.

The foreman wasn’t bluffing. The next day, on June 17, U.S. District Court Judge Harvey Bartle III dismissed Juror No. 12, and instructed the jury to start its deliberations all over again, with an alternate juror taking the place of the dismissed juror.

On the third day of renewed deliberations, the jury convicted Fattah and co-defendants Herb Vederman and Robert Brand on all charges, while returning a mixed verdict against the two remaining defendants in the case, Karen Nicolas and Bonnie Bowser.

Fattah was convicted of conspiring to commit racketeering, mail fraud, wire fraud, bribery, obstruction of justice and money laundering. He would have undoubtedly preferred a hung jury.

“Simply being a holdout is not a reason to dismiss,” said Professor J. C. Lore, the Director of Trial Advocacy at Rutgers University Law School in Camden. “There’s a lot of grounds to dismiss a juror, but that wouldn’t be one of them . . . If a juror says I don’t believe the government’s case . . . that’s the role of a juror.”

The full story on Juror No. 12, however, cannot be told, because of a gag order and sealed documents in the case. It’s a saga that may wind up playing out in appeals court where it could be used as an argument to overturn the convictions and require a retrial.

The issue, according to legal experts, is whether the juror was being belligerent and refusing to deliberate, or whether he was holding his ground based on his own evaluation of the case.

“Simply being a holdout is not a reason to dismiss,” said J.C. Lore, professor and director of trial advocacy at Rutgers Law School. “There’s a lot of grounds to dismiss a juror, but that wouldn’t be one of them . . . If a juror says I don’t believe the government’s case . . . that’s the role of a juror.”

Details about how and why the juror was dismissed remain secret. Bartle has placed under seal the note that the jury foreman sent to the judge, as well as a transcript of a hearing where the judge interviewed Juror No. 12 in the presence of defense and prosecution attorneys.

In addition, lawyers in the case say the judge has imposed a gag order that prohibits them from talking about the dismissed juror.

According to Juror No. 12, the gag order may apply to the jury as well. In an interview, Juror No. 12 said the judge told him not to talk the day he was dismissed.

The other jurors have remained silent. On July 21, the 12 jurors who convicted Fattah and his co-defendants rushed past reporters, several with their heads down, all declining to comment.

That same day, Jeremy Roebuck of The Philadelphia Inquirer reported on a sidebar conversation apparently precipitated by the jury foreman’s note to Judge Bartle. The conversation, captured on an audio recording, indicated that the judge told the lawyers there was a reported snag in the jury room, a snag that involved Juror No. 12.

“The question is: Are we at the point where we’re at a deadlock as opposed to whether someone isn’t deliberating,” the judge said to the lawyers in the case.

That, according to legal experts, remains the crucial question.

“A juror may be dismissed if he or she is unwilling to unable to deliberate,” said Professor Jules Epstein of Temple University’s James E. Beasley School of Law. “But a juror may not be dismissed [because] he has doubts about the sufficiency of the evidence.”

Juror No. 12 insists his stand was based upon his doubts about a lack of evidence. He said he told his fellow jurors repeatedly that the government did not prove its case.

“I wasn’t buying it,” he said, recalling his doubts as he watched the prosecution present its case. “I kept thinking to myself I hope they have more than this.”

In the sidebar conference over how to respond to the snag in jury deliberations, Robert Welsh, a lawyer for Vederman, cited a 2007 decision by the U.S. Court of Appeals in the Corey Kemp corruption trial as a legal standard for dismissing jurors.

Kemp was the former Philadelphia city treasurer convicted in 2005 of honest services fraud, extortion, mail fraud and filing false tax returns.

In the Kemp case, a juror was dismissed after a judge concluded she was biased against the government, because she had made such statements as, “The government always lies.” And when asked by her fellow jurors to review evidence, the juror reportedly replied, “Show it to someone who cares.”

“I didn’t believe there was any evidence for a conviction,” the dismissed juror said. As far as the allegation that the congressman masterminded the laundering of a $1 million loan to pay his campaign expenses, the juror said, “there was nothing directly tying him [Fattah] to the money.”

It may be difficult, however, to justify dismissing Juror No. 12 because of bias against the government. The Lancaster Country resident said he was a former paratrooper in the U.S. Army’s elite 82nd Airborne infantry division. The type of veteran who says when “your government” asks you to do something, it’s your solemn duty to do it to the best of your ability, in a manner that upholds the Constitution.

Whether he was being belligerent during deliberations may be a matter of interpretation. In the courthouse, reporters heard rumors about a near fight in the jury room. In an exclusive interview with PhillyVoice, Juror No. 12 acknowledged raising his voice during debates with other jurors, but only, he said, after they began shouting at him.

“When people raised their voices to me, I’m gonna raise my voice back to you,” he said. At the time, he said, he was raising questions about the prosecution’s case, and the lack of evidence. He said that his fellow jurors responded with anger and insults.

According to Juror No. 12, one female juror suggested that when the former paratrooper was jumping out of planes, he might have landed on his head too many times. But Juror No. 12 said he was not swayed.

“I didn’t believe there was any evidence for a conviction,” the dismissed juror said. As far as the allegation that the congressman masterminded the laundering of a $1 million loan to pay his campaign expenses, the juror said, “there was nothing directly tying him [Fattah] to the money.”

According to the evidence in the case, the juror said, the congressman “did not ask anybody to borrow money on his behalf.”

The only evidence the government offered that Fattah even knew about the $1 million loan was the testimony of two cooperating witnesses, political consultants Thomas Lindenfeld and Greg Naylor.

About Lindenfeld, Juror No. 12 said, “He lied to his wife, his family, his business partners, and those closest to him. 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?”

The dismissed juror also wondered why Lindenfeld, a graduate of Princeton University, had put up his own business as collateral when he accepted the $1 million loan from former Sallie Mae CEO Albert Lord.

“Who’s stupid enough to do that?” he asked.

The dismissed juror also didn’t believe Naylor, saying he had no choice but to cooperate after Lindenfeld rolled over on Fattah, and was ready to testify against Naylor as well.

The dismissed juror said he was troubled by the accusations against Robert Brand. The five-year statute of limitations on an allegation of wire fraud against Brand had already run out, the juror said. But the government argued that Brand was part of an ongoing racketeering conspiracy between the defendants because of recent falsified annual campaign finance reports from the failed 2007 Fattah for mayor campaign.

Juror No. 12 also had doubts about whether Herb Vederman was actually bribing a congressman when Vederman wrote a $3,000 check to cover the educational expenses of Fattah’s au pair. And when Vederman paid $18,000 to Fattah for a used Porsche that never left the congressman’s garage.

“I think if you’re gonna buy a congressman, it’s going to cost you more than that,” the dismissed juror said. “I didn’t think it’s a lot of money.”

But that was a matter of perspective. Juror No. 12 said he was a salesman who makes a six-figure annual income, even though he has to “work hard for his money.”

Other jurors, however, took a different view of Vederman’s alleged bribes. Juror No. 12 recalled that another juror yelled back at him, “It’s a ton of money.”

Juror No. 12 also disagreed about whether the sale of the Porsche was a phony transaction, as the government had alleged.

Juror No 12 said he told his fellow jurors, “You can’t convict a politician because he smiles a lot. That’s what he does. That’s not a crime.”

“I’ve got cars sitting in my brother’s garage that I’ve never registered,” he said. But “when you transfer a title, it’s sold.”

It was the same argument espoused on the witness stand by former Gov. Ed Rendell, who testified during the trial on Vederman’s behalf.

According to Juror No. 12, the problems in the jury room started seven minutes after they closed the doors and began to deliberate.

None of the evidence was in the room for review, he said. But the jury foreman announced he wanted to take a vote ‘just to see where we are” on the most serious charge in the case, the alleged racketeering conspiracy among the five defendants.

Juror No. 12 didn’t think that made much sense.

“If there was no loan, there’s no conspiracy,” Juror No. 12 argued. “There’s nothing tying him [Fattah] to the loan.”

“They wanted to start from the top down,” the dismissed juror said about his fellow jurors. He thought it was more logical to start at the bottom of the 18-page juror form and work their way up through 74 charges.

By his account, it was the last argument that he won in the jury room.

Behind closed doors, Juror No. 12 said, some of his fellow jurors were angry at Fattah for his courtroom demeanor. At the defense table, the congressman was often seen smiling or smirking. Some jurors were so mad, according to Juror No. 12, that they said they wanted to convict Fattah simply because of the way he behaved.

Juror No. 12 said he told his fellow jurors, “You can’t convict a politician because he smiles a lot. That’s what he does. That’s not a crime.”

Juror No. 12 said when he challenged his fellow jurors to show him evidence that proved a specific charge in black and white, one female juror pointed to the indictment.

“Sweetheart, that’s the indictment, that’s not evidence,” he recalled responding.

“Yes, it is,” he said the juror replied.

But Juror No. 12 was right about the indictment. After the judge dismissed Juror No. 12 from the case, the judge instructed the jury that the 29-count, 85-page indictment was not evidence, but merely a set of allegations that had to be proven beyond a reasonable doubt.

The jurors only had the case for an hour the first day of deliberations when they took three 11-1 votes. The next day, according to Juror No. 12, the jury took at least five more votes, with the same results. All the jurors voted for convictions; Juror No. 12 was the lone holdout for acquittals.

The breaking point came when the jury voted on a charge that accused Karen Nicholas, a former Fattah congressional aide who ran a nonprofit controlled by Fattah, of falsifying documents. Nicholas applied on behalf of the congressman to the National Oceanic and Atmospheric Administration (NOAA) to fund a Fattah-sponsored conference on higher education.

Juror No. 12 said he read the emails out loud to the other jurors where Nicholas asked if NOAA was interested in funding the conference. An official wrote back that they were interested. Nicholas subsequently informed NOAA that the date of the conference had been changed.

While the government charged that Nicholas had knowingly and willingly made false statements and tried to cover them up, Juror No. 12 said he couldn’t see anything Nicholas wrote that was false.

But the jury foreman wanted to take another vote. That’s when Juror No. 12 told him, “You can take another vote, but I’m not gonna change my mind”.

“They said I wasn’t deliberating,” he said. “After a while, I refused to vote. I already voted.”

“I don’t know what they told the judge,” he said. “I don’t know what the note said.”

“I feel bad,” he said. “I feel like I kind of let them [the defendants] down.”

The experience, he said, has left him with a different view of the criminal justice system.

“If you ever face a jury of your peers,” he said, “God help you.”