By Ralph CiprianoFor BigTrial.net
Was Juror No. 12 in the Chaka Fattah case being obstinate? Or was he reprising Henry Fonda's role in 12 Angry Men?
Was Juror No. 12 violating his oath as a juror? Or following the dictates of his own conscience?
It's an argument that won't be settled by a newly unsealed memorandum from Judge Harvey Bartle III. And it won't be settled on the front page of The Philadelphia Inquirer or the Legal Intelligencer.
Instead, it's an argument that will most likely play out in appeals court. While former Congressman Chaka Fattah sits in jail, anxiously awaiting the outcome.
In a memorandum made public by the judge today, Juror No. 12 allegedly told a court clerk shortly before his dismissal that he "was going to hang this jury no matter what."
"Here, there is no doubt that Juror No. 12 intentionally refused to deliberate when he declared so early in the process that he would hang the jury no matter what," the judge wrote. "This finding was predicated on the admission of Juror 12, as reported by the court's deputy clerk."
The judge's memorandum lays out some of the specifics of his closed-door interview with Juror No. 12. In the memorandum, the judge said he asked Juror No. 12 if he told the clerk he intended to hang the jury.
"I did," the juror supposedly said. "I said we don't agree; I'm not just going to say guilty because everybody wants me too; and if that hangs the jury, so be it."
The judge had a problem with this.
"There have been approximately four hours of deliberations," the judge wrote. "There's no way in the world he [Juror No. 12] could have reviewed and considered all the evidence in the case and my instructions in the law."
As the only reporter who talked with Juror No. 12, he didn't claim to have reviewed all the evidence in the case and all the judge's instructions in the law. His story was simply that for five hours he participated in eight straight votes on the charges in the case, beginning at the bottom of the indictment.
These are facts totally missing from Judge Bartle's belatedly released memorandum.
On eight straight 11-1 votes, Juror No. 12 said he came out on the short end of votes to convict. On the last vote, an argument over whether Fattah co-defendant Karen Nicholas had falsified records to federal officials, Juror No. 12's story was that he went over every email between Nicholas and the feds and concluded that she hadn't falsified anything.
That's when, according to Juror No. 12, the jury foreman wanted to take another vote. And Juror No. 12 said he replied, "You can take another vote but I'm not gonna change my mind."
"It was 11-1 for five hours straight waiting for me to change my mind," Juror No. 12 stated in an hour-long interview. "I said, 'I'll hang the jury. I'm not gonna change my mind.'"
"I sat through a month-long trial," Juror No. 12 stated. "I read all the evidence again and again. Why should I change my mind?"
That sounds like the definition of what a juror is suppose to do, weigh the evidence, and come to a decision. And if it conflicts with what other jurors are saying, a juror isn't supposed to cave simply because the majority of jurors, and possibly the trial judge, want him to. A juror is supposed to follow the evidence, and the dictates of his conscience.
According to the judge's memorandum, the other jurors in the case wrote an ungrammatical note to the judge that said: "We feel that Juror No. 12 is argumentative [and' incapable of making decisions. He constantly scream at all of us."
But Juror No. 12's story was that he raised his voice only after other jurors began shouting at him.
"When people raised their voices to me, I'm gonna raise my voice back to you," Juror No. 12 said. At the time, Juror No. 12 said he was raising questions about the prosecution's case, and what he saw as a lack of evidence.
Juror No. 12 said his fellow jurors responded with anger and insults, such as suggesting that when Juror No. 12 was a paratrooper jumping out of planes, he might have landed on his head too many times.
"They were talking about getting rid of me right away," he said. "In the first hour, people were yelling at me, 'You're an idiot.'"
According to Juror No. 12, some of his fellow jurors believed that the indictment in the case was evidence of wrongdoing.
"Sweetheart, that's the indictment, that's not evidence," Juror No. 12 responded.
He turned out to be right. After Juror No. 12 was dismissed, Judge Bartle instructed the jury that the 29-count, 85 page indictment wasn't evidence in the case; just a set of allegations that had to be proven beyond a reasonable doubt.
Juror No. 12 also said that it was his idea for jurors to start at the bottom of the indictment and work their way up. The rest of the jurors, he said, wanted to start at the top and work their way down.
The central crime in the racketeering indictment involved the loan of $1 million to Fattah's unsuccessful 2007 mayoral campaign by a wealthy donor. The feds claimed that the congressman had laundered that loan through a friendly political consultant to pay off his campaign debts.
This was true; there was no written evidence tying the congressman to the loan. Only the word of two government witnesses who were jammed up with their own legal problems that included lying to the government.
The argument to start at the bottom of the indictment and work their way up was the last argument Juror No. 12 said he won in the jury room.
Remember, Juror No. 12 was the government's worst nightmare: a white guy from Lancaster County with a military background who had studied the evidence and came away convinced that the government didn't prove his case against the black 11-term congressman from Philadelphia.
Whether Juror No. 12 was being obstinate, or following the dictates of his conscience is sure to be the subject of dueling briefs in appeals court.
Judge Bartle, for one, had already made up his mind. In his memorandum the judge said he dismissed the juror because:
Juror No. 12 has delayed, disrupted, impeded, and obstructed the deliberative process and had the intent to do so. I base that having observed him, based on his word and his demeanor before me. He wants only to have his own voice heard. He has preconceived notions about the case. He has violated his oath as a juror. And I do not believe that any further instructions or admonitions would do any good. I think he's intent on, as he said, hanging this jury no matter what the law is, no matter what the evidence is.
That, however, was not Juror No. 12's story. His story was that he didn't have any preconceived notions. He carefully reviewed the evidence, came to some conclusions, and then, in the face of great opposition, refused to change his mind.
It's an argument that defense lawyers in the case are sure to pick up on.
And, unlike the lawyers in the Fattah case, who are still bound by Judge Bartle's gag order, the defense lawyers in appeals court will be free to make an argument. And suggest that perhaps the trial judge got it wrong.