What do the juries in the Conrad Black , Dr. William Hurwitz and the Enron-related criminal trials have in common?
In response to the verdict in Lord Black’s trial, Professor Bainbridge observed that the result appeared to be a “compromise” verdict in which a portion of the jury did not believe Black was guilty of any of the thirteen charges against him but gave in to a guilty verdict on four of the counts just to get the damn thing over with.
Meanwhile, Professor Ribstein notes that this WaPo article reports that Dr. Hurwitz — a sacrificial lamb of America’s dubious drug prohibition policy — has been re-sentenced to a bit less than five years in prison as a result of his conviction on drug trafficking charges for prescribing pain relief medication for his chronic pain patients. In that connection, John Tierney explores the shameless prosecutorial tactic in the Hurwitz trial of offering shoddy evidence and testimony based on junk science to influence the jury against Hurwitz and the distraction that such charges caused for both the jury and the Hurwitz defense.
The prosecutorial misconduct that Tierney exposes in the Hurwitz trial also took place during the Black trial, where the prosecutors mischaracterized Black’s actions on the CanWest deal, on the Bora Bora trip, on his wife’s birthday party and much else, including now that Black is a flight risk and should be jailed immediately. The same prosecutorial tactics were also rampant throughout the Enron-related prosecutions, particularly the Lay–Skilling trial (see also here), the Nigerian Barge trial and the Enron Broadband trials.
In Lay-Skilling, the prosecution frequently elicited testimony about matters that it had either dropped from the case prior to trial or never charged in the first place; these bunny trail distractions became so common that the defense team began to characterize them as “drive-by shootings.” Heck, during the trial last year of former Enron Broadband executive Kevin Howard, the government argued to the jury that Howard’s knowledge of Enron Broadband’s mere breach of a joint venture agreement was evidence of a crime, despite the fact that the breach of contract was clearly in Enron Broadband’s financial interest and had been disclosed to and approved by Enron Broadband’s outside counsel.
Add in the fact that all of these white collar cases involve at least a dozen charges and months of testimony, and it’s easy to understand how jurors become overwhelmed by it all. The common juror reaction to such prosecutorial mudslinging — along with the real presumption in such cases — is “Gosh, the government is contending all this bad stuff against the defendant, he must have done at least something criminal.” Compromise verdicts are the natural result.
What can be done? Well, one thought is to give the judge more power to determine whether the case should ever go to trial in the first place. In civil cases, summary judgment procedure provides judges with this option, and often resolves the case before trial or dramaticaly limits the issues that are tried to the jury.
Probably because of the limited discovery that takes place in criminal cases, no analogous procedure has developed in criminal cases where a defendant could argue before trial that — based on a preview of the evidence and testimony that the prosecution and the defense would introduce at trial — the trial judge should dismiss the case because no reasonable jury would conclude that the government could fulfill its burden of proving each and every element of the alleged crime beyond a reasonable doubt. Nevertheless, given the current unlevel playing field in white collar criminal cases, perhaps such a pre-trial procedure would be one way to pre-empt the prosecutorial chloroforming of the juries that has become sadly common in white collar prosecutions since the demise of Enron.