by TChris

Jurors deciding whether to convict former Tyco CEO Dennis Kozlowski and CFO Mark Swartz have been working hard. Jurors have twice asked the judge to define "criminal intent." In its second request, made on Tuesday, the jurors asked the judge to "go slowly" in explaining the concept.

Over objection of prosecutors, the court declined to give a more specific definition of "intent," telling the jury only that it refers to a state of mind. The judge told prosecutors that he was only following the law. "I know you're not crazy about it," said Judge Michael Obus, "but we just work here."

The key instruction appears to be: "A defendant is not guilty of larceny if he believes he had the authority to take the property." Jurors on Wednesday asked to have testimony read back that goes to whether Tyco's board of directors knew of and approved all of the compensation that the officers received.

By yesterday, the sixth day of deliberations, it was becoming apparent that jurors were in disagreement. Jurors sent the judge a note saying that the "atmosphere in the jury room has turned poisonous." Another note complained that one of the jurors had "stopped deliberating in good faith," suggesting that jurors may be deadlocked in an 11-1 vote.

The defendants moved for a mistrial, but the judge denied that motion this morning. The judge agreed that the note complaining of a "poisonous atmosphere" and "incendiary accusations" did not constitute "the best note we ever got" from a jury, but denied the mistrial motions because he didn't believe the jury was hopelessly deadlocked.

Update: Although jurors today reported that their deliberations were "irreparably compromised" by infighting, the court sent the jury home for the weekend, again declining to grant a mistrial. Interestingly, one of the jurors apparently made an "OK" sign while walking past the lawyers. Whether the "OK" was intended for the prosecution or defense is unclear.

In an article reminiscent of Midnight Express, ABC Radio in Australia reports that two Australian women imprisoned in Thailand since 1997 for smuggling 115 grams (about 4 ounces) of heroin flew home to Sydney today under a prisoner tranfer program:

Two Australian women sentenced to 50-years jail in Thailand for drug trafficking will arrive in Sydney today after being released under a prisoner-exchange program. They will serve another five years of their original sentence in Australia before being eligible for parole. 38-year-old Jane McKenzie, and 36-year-old Deborah Spinner were sentenced in 1997, after being caught trying to smuggle 115-grams of heroin to Australia from Bangkok. Convicted with them was Sydney man Lyle Doniger who was freed two years ago, following a pardon from the king of Thailand.

The women were denied a similar pardon, because their paperwork wasn't filed correctly. McKenzie and Spinner had faced the death penalty for heroin trafficking, but their sentences were commuted to 50 years' jail after they pleaded guilty.

The women will have served 13 years in prison when they finally are released. It sounds like they were the mules. We wonder how the man, a fellow Australian, got a pardon. Did he really just fill out the paperwork correctly, or was he able to come up with another more valuable kind of paper, like currency?

This would never happens here, right? Wrong. As TChris wrote last week,

Our Hall of Shame Award today goes to Philadelphia's Common Pleas Judge Jane Cutler Greenspan.

TChris wrote yesterday about Philadelphia public defender Fred Goodman who got decked by his client in front of the jury during a murder and rape trial which might bring the death penalty. It was inevitable that the Judge would allow Mr. Goodman to resign after the punch. It also should have been inevitable that a mistrial be declared--Mr. Goodman shouldn't have to continue the trial, and, after all, the jury saw what happened too.

But no, the Judge in the case tried to force Mr. Goodman's associate counsel, Andrea Konow, to continue by herself. She refused. Now she's in jail. The Judge says she's staying there until she changes her mind and resumes representing the client.

What is this Judge thinking? Here's what the Defender's Association had to say:

"She was held in contempt because she couldn't go forward and represent a client who had just punched her partner in the face. She couldn't go forward because in good conscience, she can't represent a client who has exhibited that degree of violence. She didn't feel safe next to the client. She didn't feel she could represent the client zealously as an advocate and for that reason she couldn't go forward and represent him."

We hope the Court of Appeals reverses this judge immediately. Even if the client used every trick in the book, including the sucker punch, to get a mistrial, he's facing death and is entitled to a fair trial and adequate representation. No one knows better than Ms. Kunow whether she can provide effective representation. If she says she can't, she can't.

by TChris

News reports indicate that the F.B.I. has joined the investigation into the murder of rap artist Notorious B.I.G. (a/k/a "Biggie Smalls," born Christopher Wallace), seven years ago. The F.B.I. may be looking into a theory, advanced by former LAPD Detective Russell Poole, that a former Los Angeles police officer conspired with Death Row Records head Marion "Suge" Knight to arrange the killing.

Poole ... contends then-LAPD officer David A. Mack, acting at Knight's request, arranged for [Amir] Muhammad, Mack's friend and college roommate, to kill Biggie. He also believes Knight had Tupac [Shakur] killed six months earlier in Las Vegas because he was about to leave Death Row Records and that Knight then had Wallace murdered to make it appear both slayings were the result of a bicoastal rap feud.

Ex-Officer Mack is now serving time for bank robbery. Poole resigned from the LAPD in 1999 over disputes about the investigations, and the LAPD announced in 2000 that it no longer considered Muhammad a suspect. Although the LAPD dismissed Poole's theory, the FBI may be giving it a fresh look.

According to law enforcement sources and court documents obtained by [LA Times reporter Scott] Philips, the FBI took interest in the Biggie murder after an agent watched a VH1 special on the rapper last summer. The agent contacted the slain rapper's mother, Voletta Wallace, and her attorneys, who filed a wrongful-death suit against the city of Los Angeles in 2002 accusing the LAPD of covering up police involvement in the murder .... Voletta's attorneys told the FBI agent that witnesses were afraid to talk to LAPD detectives about the case because of corruption.

All of the alleged conspirators deny any involvement in the crime, and the F.B.I. has declined to comment.

by TChris

Philadelphia public defender Fred Goodman had a tough assignment: defending Abdul Malik El-Shabazz against charges that he raped and murdered 6-year-old Destiny Wright. The job got tougher when El-Shabazz, at the conclusion of the prosecution's case, sucker punched Goodman in the face.

El-Shabazz and Goodman evidently had a strategic disagreement about the theory of defense.

On March 10, after Goodman told jurors that his client killed the little girl and the debatable issue "is the difference between first-degree murder and second-degree murder" El-Shabazz screamed, "I'm innocent! That's what the D.A. and my lawyers won't tell you."

Judge Jane Cutler Greenspan sent the jury home after a sheriff's deputy tackled El-Shabazz and dragged him out of the courtroom. The prosecution is opposing a mistrial, but the judge would be inviting reversal if she forced Goodman to continue representing El-Shabazz. She might think that punching counsel is tantamount to waiving counsel, but requiring El-Shabazz to start representing himself midway through a murder trial would also lead to reversal. A mistrial is inevitable.

by TChris

If a picture is worth a thousand words, a movie must be worth a million. No surprise, then, that the defense in Jayson Williams' murder case wanted to show the jury a video that demonstrates how the killing could have occurred accidentally.

Many lawyers believe that jurors have been conditioned by years of television viewing to pay rapt attention to anything they see on a TV screen. To the extent that the belief is true, televised evidence is more likely than live evidence to stick in the minds of jurors. What better way to tell the defendant's story, then, than via computer animation?

Demonstrative evidence is nothing new -- witnesses commonly use models and drawings to help juries understand their testimony -- but current technology makes it possible to create a very precise and detailed view of the evidence from a defense perspective. That's what Williams, the former NBA star charged with manslaughter for killing a chauffeur with a shotgun, wanted to do.

[Williams' lawyer, William] Martin said the video, which he called an animated CD, explained the gun's hammer and firing mechanism and illustrated the opinion of the defense's firearms expert that a stray wood chip had become lodged in the hammer mechanism and caused the gun to misfire while Mr. Williams held it.

by TChris

Twelve out of thirteen potential jurors were dismissed yesterday as jury selection began in the Scott Peterson trial. Most were released because they had made up their minds about Peterson's guilt or because they strongly opposed the death penalty. Faster progress was made today as five potential jurors were selected. The judge and lawyers expect to individually question about a dozen potential jurors each day during this initial phase of voir dire.

Acknowledging the difficulty of selecting a fair jury in such a high profile case, the prosecutor agreed with Mark Geragos, Peterson's attorney, that juror questionairres should not be released to the press. The judge accepted their reasoning, ruling that Peterson's interest in a fair trial outweighed the media's interest in publishing the questionairres. Judge Alfred Delucchi said that releasing information that might permit the media to identify jurors could have a chilling effect upon the willingness of potential jurors to serve.

by TChris

TalkLeft predicted that death row inmate David Paul Hammer would be called as a defense witness in the trial of Terry Nichols. Judge Steven Taylor has now overruled the prosecution's objection to Hammer's testimony, clearing the way for Hammer to take the stand.

Hammer is expected to testify that Timothy McVeigh told him that Nichols refused to take part in the Oklahoma City bombing and that the bomb was assembled at an Oklahoma City warehouse, not in Nichols' Kansas home as authorities claim. Hammer may also reveal the identity of John Doe No. 2, the man some witnesses saw with McVeigh on the day of the bombing.

The prosecution calls Hammer "one of the least credible sources ever to serve time" in an Oklahoma prison. But the prosecution's star witness against Nichols, Michael Fortier, is serving a federal prison sentence for knowing about the bomb plot and not telling authorities. Funny how the prosecution thinks its own incarcerated witness is credible while the defense witness isn't.

It's ultimately up the jury to decide whether any witness is worthy of belief. The jury will hear opening statements Monday.

The media is making a big deal out of a letter Martha Stewart's lawyers have sent to her friends asking them to write a supportive letter to the Judge in hopes of getting a lesser sentence.

First, letters of reference are routine. The decision of the Judge and recommendation of the probation officer can be affected somewhat by their subjective impressions of the character of the individual. A well-written, detailed letter of reference that reflects positively upon the individual about to be sentenced can influence the final outcome of a sentencing hearing.

Second, and here's the rub-- because of the federal sentencing guidelines, letters have limited value. In an extraordinary case, they might contribute to a Judge's decision to depart below the guidelines, but usually, the most they can do is influence a a judge to sentence someone to the bottom of the guideline range, rather than the top. For example, if Martha's range is 10 to 16 months as expected, the letters could sway the judge to impose a sentence of 10 rather than 16 months--and to allow her to serve half of it on home arrest rather than all of it at a federal prison camp. That's likely the best scenario at this point.

In Martha's case, letters showing her to be a giving person who contributes her time and money to those less fortunate, and except for this single instance of misjudgment, a moral and honest person, could help her get the lowest sentence possible under the guidelines.

by TChris

Susan Lindauer, charged last week with conspiring to spy for Iraq before the war, says that she was "only trying to help prevent a war in Iraq."

Susan Lindauer told The Associated Press she was being punished because she got involved in U.S. foreign policy. She said her intent was to persuade Iraq to allow weapons inspections before the war and to get it to cooperate with the war on terror.

Lindauer is accused of meeting with members of the Iraqi Intelligence Service and of trying to deliver a letter to her second cousin, White House Chief of Staff Andrew Card, outlining her access to members of Saddam Hussein's regime.

by TChris

All twelve counts accusing recording artist R. Kelly of possessing child pornography in Florida have been dismissed.

The case began when Polk County sheriff's detectives found marijuana in a home Kelly rented for his business associates. The detectives obtained a warrant to search the nearby house where Kelly was staying. During that search, detective Robert Mateo found what he considered to be an "unusual" amount of adult pornography in a cabinet. (It is unclear what constitutes an "unusual" amount of porn -- perhaps more than Mateo kept in his own home?)

Relying on his discovery of adult porn, Mateo requested a second warrant to search for child porn. Why Mateo thought he had probable cause to believe that a consumer of adult porn would also have child porn is again unclear, although the affidavit supporting the warrant apparently made reference to "unspecified information from Chicago authorities." Kelly is also charged with possession of child porn in Chicago, although some of those charges were recently dismissed.

Armed with the second warrant, Mateo returned to Kelly's home and seized a video camera, on which he discovered "several pictures of two women performing sex acts and other photos of Kelly in a sex act." Mateo apparently judged the women in question to be minors -- hence the child porn charges.

Circuit Judge Dennis Maloney suppressed the pictures as evidence after concluding that Mateo did not present sufficient evidence to justify issuance of the second warrant. Judge Maloney ruled that Mateo failed to demonstrate that a possessor of adult porn, marijuana, and video cameras would probably also be in possession of child porn. No pictures, no case, so the prosecution dropped the charges after deciding it had no grounds for appeal.

by TChris

Now that Martha Stewart's trial is over, can the government claim that its victory sends a message to corporate criminals that the time has come to mend their ways? Lee Drutman reminds us that Stewart acted as an individual investor, not as a corporate CEO. He asks us to compare Stewart's actions to the allegations of accounting fraud at Enron, WorldCom, Global Crossing, and Qwest, or to conspiracies between investment bankers and brokers to steer investors into lousy stocks, or to after-hours trading in the mutual fund industry that favored wealthy investors. Will serious corporate criminals quake in fear because Stewart was convicted of lying about an alleged crime (insider trading) with which she was never charged? In Drutman's words: as if.

Drutman also points out that Stewart is likely going to lose her freedom while ten Wall Street banks recently paid fines for their transgressions.

But the fines were a slap on the wrist, barely a day's revenue for most of the firms and even partly tax-deductible. And the individual players in the scams, the executives who directed it and the employees who carried it out, were not made to feel much financial pain for leading millions of investors astray.

Punishments visited upon the mutual funds that permitted after hours trading have been similarly light.

At worst, funds have been ordered to compensate investors for what the funds stole from them and make changes to their governance structures that they should have had all along. Such prosecution is a typical approach for dealing with corporate crime: just pay back what you stole and don't let it happen again. Imagine if such logic were used on common thieves?

If the government sent a message, it's this: We will prosecute an occasional case against a high profile individual on charges that are relatively simple. Most corporate criminals will be happy to live with that message.