Juror Issue Clouds Stevens Trial

Posted October 24, 2008 at 3:54pm

The criminal trial of Alaska Sen. Ted Stevens (R) remains on hold as federal prosecutors and defense attorneys await the court decision on whether or how to replace an absent juror, an outcome even legal experts said is difficult to predict.

Judge Emmet Sullivan temporarily suspended deliberations in Stevens’ trial on Friday after one of the jurors had to leave to attend her father’s funeral in California.

Sullivan has scheduled a hearing in the U.S. District Court for the District of Columbia on Sunday evening to determine whether deliberations will remain on hold until the juror, who indicated she may come back to the District of Columbia as early as Monday or as late as Wednesday, returns.

Alternately, Sullivan could order that an alternate juror be placed on the panel or even allow 11 jurors to conclude deliberations without filling the vacant seat.

Attorneys for Stevens indicated Friday they concurred with Sullivan’s decision to temporarily delay deliberations, but in a memorandum filed the same day, counsel Robert Cary argued an 11-member panel would be appropriate if the absent juror cannot return in a timely manner.

“Given … requirement[s] that deliberations must begin anew following the replacement of a juror, seating an alternate for Juror No. 4 risks further delay and may undermine this Court’s (and the parties’) efforts to ensure a prompt and fair verdict,” Cary wrote.

“Furthermore, notes from the jury suggest that they are far along in their deliberations,” he continued. “Adding a juror at this point thus undermines the previous deliberations and complicates further deliberations with little apparent benefit to either party.”

Jensen Barber, a federal criminal defense lawyer who has represented Congressmen and staffers but is not involved in Stevens’ defense, suggested that Stevens’ desire for an 11-member panel is also a reflection of his efforts to conclude the trial before Election Day.

“Stevens is on this deadline because he still wants to be running for Senator, so if he could get an acquittal before Nov. 4, he would be very happy,” Barber said.

Federal prosecutors also filed a memorandum on the situation Friday, arguing aggressively for the court to substitute a new juror.

“The lack of specificity as to the juror’s return, coupled with the obvious emotional trauma that the juror must certainly be suffering (and will likely be suffering upon the juror’s return) are more than sufficient reasons for the Court to excuse the juror at this time — particularly given the fact that alternates exist for situations precisely like the present one,” attorney Edward Sullivan wrote.

Contrary to defense assertions that deliberations are “far along,” federal prosecutors argued that the jury had met for less than two full days, and deliberations would not be delayed significantly if a new juror were added to the panel.

“No hardship will result if the jury is asked to restart its deliberations today,” Edward Sullivan wrote.

Federal prosecutors also acknowledged the possibility of proceeding with an 11-member panel, albeit in more neutral tones than their pleas for an alternate juror.

“Should the Court conclude that it is undesirable to replace the Juror with an alternate juror … the government submits that the Court should then dismiss the Juror for good cause and permit the remaining 11-member panel to continue deliberations and to proceed toward verdict,” Sullivan wrote.

However, at least one legal expert, Loyola Law School professor Laurie Levenson, suggested it is less likely the court would opt to use a reduced-size panel.

“It is unusual they would go to 11 while they still have alternates,” Levenson said.

One potential problem, Levenson explained, is that should another juror need to leave the panel before a decision has been reached, the court would need to declare a mistrial.

“If you go to 11 you have no safety net,” she said.

During Friday’s hearing, attorneys queried the alternate juror focusing on whether she has discussed the trial or read any information since being released from court duty earlier this week.

The juror, a white woman, said that some acquaintances had inquired about the trial but said she had declined to discuss the case.

Stevens faces seven counts of filing false statements to conceal the receipt of about $250,000 in gifts from the now-defunct VECO oil services firm and its executives over an eight-year period.

Legal experts also agreed it would not be unusual — despite the trial’s compressed schedule — for the judge to determine the court could wait for the juror to return.

“There is a general desire on the part of a trial judge in a criminal case” to retain the jury once deliberations have begun, explained attorney Lee Blalack, a partner in the firm O’Melveny & Myers, who participated in the defense for former Rep. Duke Cunningham (R-Calif.).

“They know that juror has invested a lot of their time and their life on this case, and secondly they know there’s a certain chemistry question that goes with jury deliberation,” Blalack said. “There’s a desire on the court not to disturb that chemistry if it’s possible to do so.”

But Blalack added: “There comes a point where that’s just not feasible.” He noted that too long of a delay could amount to a burden on other jurors, as well as on the defendant: “Particularly this defendant, who has an election in a couple of weeks.”