My Newfound Dilemma – The Prosecutor’s Edge

IMG_1736I’ve been practicing law for a long time on both sides of the criminal bar. It’s rather late in my career to start wondering about a practice that is accepted as the norm but I never really thought about it until yesterday. It’s like you go along with something because that’s how it has always been done.

If you are from the Boston area you don’t think twice about jay walking or walking against the light because that is how you’ve lived your life. It’s only when you find yourself in a different situation that you realize that all your life you’ve been doing it wrong. I learned a long time ago when I was in DC with some friends from other parts of the country and in the middle of the block saw the restaurant we were looking for across the street. I stepped off the sidewalk into the street to get there, using as a guide the well known idea that the shortest distance between two points is in a straight line. I was taken aback when my friends didn’t follow. They walked to the cross-walk.

This brings me to this anomaly in the law which I just discovered. When the jurors asked the judge if they must also be unanimous to find a racketeering act “not proven, the judge responded to their question, “The answer is yes, to find a racketeering act proven it must be unanimous, that is you all must agree that it is proven. If you find that a racketeering act is not proven, that decision must also be unanimous.” All the lawyers agreed.

My immediate reaction went against my years of training. I thought the judge was wrong. What I was unaware of at the time was the judge then added that if they could not be unanimous in their finding then they should move on to the other charges before them. When I learned that I said, “yes, that’s what you do, you see what you can unanimously agree on and then go back to those you don’t.”

But all day I thought of my visceral reaction, why did I think the judge erred? What was it that in common sense went against all my learning. How was I thinking differently than those millions of lawyers who were much smarter than I who have accepted what the judge says as being what should happen?

A few things came to my mind, “presumption of innocence.” Doesn’t that carry on through the trial until the prosecution convinces the jury it must no longer presume innocence? When does the jury chuck that aside? It disappears when the prosecution convinces all of the members of the jury beyond a reasonable doubt that the defendant committed the crime. If the prosecutor fails, then the presumption holds. Or does it?

I tried to analogize this to other situations in life to get a clearer understanding of my befuddlement. What situations could I be in similar to that of a prosecutor, having an obligation to bring something about, and, what are the consequences if I fail to do that.

In the military I had an obligation to show up for guard duty. If I didn’t show up I’d be punished severely. In school I had the obligation to pass my tests, if I didn’t I’d suffer the consequences. Failing in ones obligation will usually result in adverse happenings to oneself.

If the prosecutor fails to convince all the jurors of a defendant’s guilt, that’s not necessarily the case. If the prosecutor only can convince 50% of them, she doesn’t suffer but gets to try again. The rule is she must convince all of them so having failed, why is she allowed another go at it?

In a race, my burden if I am to win is to cross the line first. If I don’t, I lose. In a spelling bee, I have to spell the word correctly and if I don’t I’m out. If I undertake to do an act and I fail I usually don’t get a second chance to do it over again.

Why then does the failure by a prosecutor to carry her burden which is to convince all the jurors beyond a reasonable doubt of a defendant’s guilt not result in an acquittal? If she only convinces one juror, even though she’s suppose to convince twelve, she gets to do it over again. Isn’t that putting a defendant on trial twice, or even more, for the same crime?

Doesn’t it make more sense if the prosecutor fails in its burden that the defendant’s presumption of innocence is upheld and the defendant should be found innocent? Telling the jury it must be unanimous in finding that an act is not proven sends a mixed message, it’s as if the defendant had a burden to do something which he doesn’t.

I’m sure I’m not thinking straight. I am just recovering from my eight week immersion in work. I’m suddenly thrown back into my life of leisure. You do understand how this tries one’s soul.

I just toss this out for your consideration at this time. If you have any way to set me back on the straight path with all my legal colleagues let me know.


  1. Once again, counselor, right on the button. I always apply what I refer to as a logic equation to resolve issues such as these. Under the Constitution, it is the government’s burden to prove the case beyond a reasonable doubt. To ensure the result is just and not the result of bias or quirk, the defendant is entitled to a trial by jury; a brilliant feature with redundant safeguards. (Although, as a trial attorney who has sat on two juries, undisclosed to my fellow jurors, I can attest juries arrive at decisions using processes totally unrelated to what was contemplated by the Constitution, what the Judge instructs them to do or how the Judge charges them and bears absolutely
    no resemblance to the process law school professors believe takes place. But I digress.)
    So in order for the defendant to be found guilty, 6 or 12 people must agree the government has met it’s burden. If logical consistency were required, the inability of the government to convince these 6 or 12, collectively, should result in the conclusion that the defendant is not guilty, having had no burden to establish anything.

    • In the only related because it’s about jury verdicts category, those lawyers who try civil cases in Massachusetts are aware of the standard jury verdict slip in negligence cases:

      1. Was the defendant negligent in the case of Whitey v. Corrupt Midget Enterprises, Inc.?

      Yes. No
      If no, check the box and do not proceed to question 2
      If yes, please proceed to question 2.

      2. Was the negligence of the defendant the proximate cause of plaintiff’s injuries?

      Yes No

      It is quite common that a jury will find that the defendant was negligent but that it was NOT the cause of plaintiff’s injuries.

      The internal inconsistency with this verdict slip, and as a result, the jury’s analysis and process, is that proximate cause is one of the elements of negligence. If they listened to the charge, the judge told them so. If they answered yes to question 1 and they were following the instructions given, the element of proximate cause was satisfied. So to logically and with internal consistency answer no to question 2., a jury would have to answer no to question 1. , which would have concluded their duties and instructed them not to answer question 2 and ring for the Court Officer. I’ve gotten this verdict anomaly result as have more than a dozen other lawyers i’ve spoken to and it drives everyone it happens to absolutely mental.

      • 29:

        I haven’t practiced civilly in a long time. I have to say I don’t agree with you analysis. I was taught in torts by Jimmy Smith that negligence and proximate cause are two different matters of proof. For instance, if I park my car negligently outside my condo in Brookine and some drunk comes driving down the street and clips my car and then loses control of his car and hits a guy raking the lawn next door, I’m negligent but not the proximate case of the lawn man being hurt.

        Or suppose I’m at Triple O’s having a few pops and I negligently forget to take my buck knife to the head when I go there and Kevin Weeks comes in and sees some guy who he heard called him a rat and he picks up my knife and stabs him while I’m attending to the call of nature, I don’t think my negligence is the proximate cause of that guys injury.

        Maybe the law has changed but that’s how I remember it.

    • 29:

      Thanks for commenting. I had the opportunity to listen to a part of a jury deliberate in a case I once tried. How it came about is a long story. I thought I had made a particularly compelling final argument. I was crushed listening because the jury was discussing things that never came up in the case. So I understand you must have had a very interesting experience sitting on two juries.

      You point out the fallacy of putting the burden on the government to convince a jury beyond a reasonable doubt but if they fail to do it then they can get a second or third go at it.

  2. Matt – always impossible to try and figure out what a jury is doing, or why. Curious though – how did Carney and Brennan get paid in this case?

  3. Many learned folks question the specious “reasoning” that undergirds second trials; second trials do violate the spirit and letter of Double Jeopardy jurisprudence according to many Former Supreme Court Justices; Read voluminously about this controversy in law journals; the “trend” is against “tandem prosecutions” and re-trying those persons who a first jury has acquitted or cannot unanimously concur on his/her guilt. (2) TO BE FOUND GUILTY UNDER RICO the jury must affirmatively find “proven” at least two predicate acts within a certain continuous time period during the existence of the Corrupt Organization. If we want your mind to seize, try following the Federal Courts “arguments” which justify convicting a guy under RICO when only one predicate act has been proven, because the Federal Appeals Court “reasons” that the “jury may have believed Mr. X committed the act, even though they found the Act was not proven.” I am no kidding. It’s like the St. Pat’s Day Parade case where sixteen separate judges and administrative judges agreed that A Parade was not expressive enough to warrant First Amendment Protection. Want to blow your mind: Read “From Trial Court to the United States Supreme Court: Anatomy of a Free Speech Case” or read Roe v. Wade which found the fetus throughout all nine months of pregnancy was mere “potential human life.”

    • William:

      1. Tommy pointed out and I think he is correct that double jeopardy only goes to punishment. My point is to the trials where a prosecutor should only be given one bite of the apple.

      2. Good point. You know lawyers and judges can reason to anything.

  4. MTC – you ask 2 questions – first, if the jury must be unanimous to find a racketeering act “not proven.” The judge responded, “The answer is yes, to find a racketeering act proven it must be unanimous, that is you all must agree that it is proven. If you find that a racketeering act is “not proven,” that decision must also be unanimous. And, second, why does the prosecution get a second bite at the apple if it is a hung jury?

    Answering the first question – there is no verdict in the U.S. of proven versus not proven – the verdicts are guilty and “not guilty.” In Scotland, they have a third verdict of “not proven.” See,

    I’m surprised that the prosecution would go along with a “Not proven” verdict form. I actually just looked on PACER and the verdict form does actually say for the racketeering acts – “Proven” and “Not proven” but for each of the indictment counts – “Guilty” or “Not guilty”. Strange. Never seen that before.

    As for the second question – the Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” As we explained in Yeager v. United States, 557 U.S. 110, 117(2009), “[i]t is very clearly the spirit of the [Double Jeopardy clause] to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection.”

    The rational being – that the second trial does not place the defendant in jeopardy “twice.” Rather, a jury’s inability to reach a decision is the kind of “manifest necessity” that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled.

    Great question – lot of supreme court litigation of this very issue.

    • Tommy:

      I may have confused some. The proven/not proven aspect of the case only relates to the predicate acts in the RICO indictment – if two acts of the thirty-three are proven then the finding on that indictment is guilty.

      As for the double jeopardy you are right to point out that it is putting a person in double jeopardy of punishment. Thanks for correcting me on that. That saves me from considering that in any future post I do on this issue.

      Great comment with good citations.

  5. Matt: Any attempt to guess the jury is mute.
    These days my time is spent looking at the
    big picture while trying to make a contribution
    in the evolution of the crime and punishment system.
    Bulger is just a navigational hazard on our charts.
    It is time to correct the charts. In other news
    see link for full story

    Federal Appeals Court Lets FBI off the Hook after It Lied to a Judge

    Thursday, August 08, 2013

    Yes, the FBI was spying on the Muslim community in Southern California and, yes, it lied to a federal judge about the existence of documents relevant to a case regarding that surveillance.

    But, no, the FBI shouldn’t be sanctioned for its behavior.

    That was the ruling by the U.S. Ninth Circuit Court of Appeals, which disagreed with U.S. District Judge Cormac J. Carney, who ordered the government in 2011 to pay court costs for those bringing suit on behalf of the Islamic Shura Council of Southern California, an umbrella organization of mosques and Muslim organizations that has operated in Southern California since 1995.

    The civil liberties case before the District Court alleged that U.S. authorities illegally spied on mosques in 2006 and 2007. The FBI was accused of sending an undercover informant into several Orange County mosques as part of Operation Flex and may have collected information on hundreds of people. The FBI admitted that it used the informant, but demanded that the case be tossed for national security reasons.

    Lawyers for the mosques demanded to see surveillance records on the plaintiffs. The FBI told the judge it had provided all the information within the scope of the plaintiffs’ original Freedom of Information Act request. That wasn’t true and an incensed Judge Carney sanctioned the FBI.

    “The Government cannot, under any circumstance, affirmatively mislead the Court,” Judge Carney wrote.

    But the Ninth Court of Appeals said that wasn’t true and reversed his ruling. You can, apparently lie to a judge if later on you admit you lied and then sandbag him in his own courtroom.

    The FBI had initially released eight heavily-redacted pages of information in response to the lawsuit brought against them and said that was all there was. But eventually they coughed up another 100 pages of equally heavily-redacted documents that they showed the judge privately in camera. Then, later, the FBI produced yet more documents.

    In response to the serial deception, Carney wrote in his 2011 ruling, “The court must impose monetary sanctions to deter the government from deceiving the court again.”

    The three-judge appellate panel disagreed, cited what is known as a safe harbor provision of the law, and reversed on procedural grounds, saying what counted was the fact that the judge eventually got the documents.

    A frustrated Judge Carney tossed out the spying lawsuit against the FBI in August 2012 for national security reasons, likening himself to a fictional Greek hero who must save all those around him at the expense of a few. “Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool,” the apologetic judge wrote.

    • MS:

      Absolutely right, jury predictions are like trying to guess how many hurricanes will hit the US each year.

      The courts have let us down when it continues to back up more and more government encroachments on us and we have no recourse. Thanks for bringing that to our attention.

  6. Small town police chief charged by Feds with extortion and three counts of money laundering. He got $4G in what was a despicable scheme, but it seems like another case of Ortiz’s office being overbearing and forceful. I believe the money laundering charges carry a maximum 20yrs. I’d venture to say this guy faces a max of 75yrs over a $4G heist. Plus he’ll lose his pension, have to pay a lawyer, he’ll be unemployed and unemployable. And maybe have to forfeit other assets.
    Here’s another case that warrants some perspective by federal prosecutors.

    • Prosecutorial overreach and zealotry; see Chuck Turner’s case et al. Remember, the Boston Federal Jury unanimously found Durham, Wyshak, Kelly and company failed to prove John Connolly leaked information that led to Callahan’s death; The Boston Federal Jury unanimously cleared Connolly of this charge under both RICO (not proven) and Obstruction of JUstice (Not Guilty)!!! The Boston Federal jury unanimously acquitted Connolly of leaking any info that led to anyone’s death. But the Trojan Horse Enemy of the Constitution Wyshak ignored Double Jeopardy Jurisprudence and orchestrated a second trial in Miami of JOhn Connolly on the exact same facts and charges he was unanimously acquitted of in Boston. (2) If you don’t unanimously convince the jury, there should be no second trial; all the second trial does is say twelve or six jurors could not find Mr. X “guilty beyond a reasonable doubt”, so we the FEDs or State Prosecutors are going to round up 12 or 6 other guys who might disagree with the first 12or 6: it’s a sham; (3) As often as not, it is not one guy holding out for not-guilty, it is 11 holding out for not guilty and one creep whose friendly with the prosecution. The point is you should get one chance and only once chance to convince the jury; it makes no difference whether you failed to convince 1, 2, 3, 4, or 11; You’ve got to convince 12, all of them, or you the prosecution should lose. Matt’s right, the defense doesn’t have to even present a witness. And if one American doesn’t agree, tough!!! Let the man/woman go free. Got problems with that? Fix it by better jury selection, not by hanging and bankrupting people when reasonable questions exist in even one juror’s mind about guilt. The system of justice in AMerica is a Sham; it benefits mainly the judges, clerks, and lawyers who administer it, especially on the Federal Level. Many, many reasonable people agree with me, including former judges, prosecutors, defense counsel and former court clerks with stellar records!

      • William:

        1. That is correct but he used the two sovereign ruse.

        2. If you are acquitted in the first trial and found guilty in the second all that means is a draw. You are neither guilty or innocent. If you are neither, what in the world can you be?

        3. The first jury can vote 11 – 1 to acquit; the second and third the same but the fourth may vote 12 – 0 to convict. The person is deemed convicted even though the score for conviction is 15 guilty and 33 not guilty. Makes one wonder. That some people may agree with you is not proof of one’s correctness; there are many who agree with me that the Leprechaun owned the banks in Ireland and that’s why the economy fell apart.

    • Patty:

      He should be charged with the offense by the local DA. It’s hardly a federal offense Money laundering is such a broad charge that if you grab $10 from a friend’s piggy bank and then deposit it in the US banking system you can be charged with that offense. It is the new tool used by the federals to keep themselves busy. I’m surprised O’Brien didn’t get charged with money laundering in his probation RICO scheme. Didn’t he put his pay check into the banking system.

      The chief will end up copping a plea, do a couple of years, lose everything, and the feds will think they did a good job. I had a case come to me where a chief in a small town files a fake insurance claim on one of his cruisers which got in an accident. He did it so that the new cruiser his department would get to replace the damaged one would have a fancy new light on top of it. I refused to prosecute it because he didn’t put any money in his pocket and was basically doing something childishly stupid, not criminal. This is unlike the Lee chief who pocketed 4 grand. But the feds could have taken the case I had and turned it into a money laundering case and nailed that chief

  7. Matt –

    It’s been a long time since I thought about any of this stuff, and I do not profess to have any clear solutions, but here are a few random thoughts:
    Our criminal justice system admits of three possible outcomes to a jury trial – guilty, not guilty, and mistrial. There are several things that can bring about a mistrial, but the one we are looking at here is mistrial by reason of the jurors’ failure to agree (hung jury). To get the guilty, Wyshak must convince all of the jurors that each element of the crime has been proven beyond … To be entitled to the n.g., Carney must persuade all of the jurors that Wyshack has failed to prove an element beyond.. The hung jury says that both failed, and Wyshack should be able to opt to try again – it’s like a rematch after a draw in boxing. The reason he gets to try again is probably practical: if there were no such thing as a mistrial by reason of a hung jury, if the choices were guilty or ng, any single juror could control the process. As a practical matter, prosecutors could rarely get convictions, and it is in society’s interest that that not be how things work. So i think the concept of hung jury was invented (by the brits?) in the interest of denying each single juror the power to dictate the outcome, the basic idea being that the whole notion of jury verdicts implies some form of consensus.
    An unrelated thought is that a particular predicate act is not necessarily an element of racketeering, as long as the required number of other predicate acts has been proven, so racketeering presents a unique situation in which Wyshack’s failure to convince all jurors that that particular predicate act has been proven beyond…should not be allowed to be fatal to his case.
    I hope you’re right about at least one juror refusing to put up with the feds’ atrocities. Who really worries that 84 year-old Whitey would be a menace on the street?
    How do you propose to keep us entertained when this is over? Stopping cold is not an option. Thanks for all your good work.

    • Thomas:

      Thanks for the answer. Always did depend on you when the going was tough. But here’s my problem,there is not supposed to be any burden on defense counsel, he can just sit back and do nothing. The whole thing is supposed to be on the state. The mistrial when a jury cannot agree come about because, as you note, the state seems to have imposed an burden on defense.

      If the government was afraid of one juror controlling the process, why not make the verdict 11 to 1? I agree that it probably came to us from jolly old England where there was the idea that it is best to allow the state to keep trying the person until the right combination of 12 jurors could be brought together to convict someone.

      It still doesn’t make sense if the prosecutor’s burden is to convince all 12 and she fails to do it then he failed in his burden and the guilty guy should be set free.

      Good to hear from you. I won’t stop but I’ll certainly slow up a bit My house has been neglected. Say hello to the Mrs. It was nice to have seen you and hope your reunion went well.

      • Matt –
        I submit that defense counsel can sit back and do nothing — in the case in chief — but the burden to get off his rump and be persuasive in closing argument — is not a burden of proof, but rather just good lawyering. I see closing argument, though terribly important as a practical matter, as non-essential window dressing. Theoretically, we could have complete criminal trials without closings, trusting that the jurors are capable of discerning everything counsel, who is not necessarily smarter than them, points out in summation. I have had enough of this thinking stuff. I’m going back to playing free cell.

        • Tom:

          Those are good points about defense counsel. I’m surprised I tempted you back into the law. You are right that after that brief excursion you must rush back and grab at your sanity before it escapes you and you find your legal mind in back in gear again. By the way, Joe tells that he is going to start thinking of retiring in 2015 with the hope it he will be able to wean himself from the legal business around 2030.

  8. Another Matthew in Texas

    What a brilliant post! it reminded me how we, as a culture, have lost sight of a core principal, innocent until proven guilty.

    Last night, I was discussing this case with my wife (god bless her for maintaining cordial interest throughout my obsession) at the dinner table. My 5 year old son asked me “What does a jury do?”. I explained that they “are a group of people that listened to a story and decides if someone did or did not break a rule.” This post showed me how incorrect my answer was.

    What I should have told my son is that a jury decides if someone did break a rule. The “or not” should be there by default and does not need to be decided.

    I think back to news reports, movies, law & order and realized that as a society, we view the legal system as deciding good or bad, black or white, rainy or sunny when the word ‘or’ should never have to be considered part of the process.

    If we are innocent until proven guilty, all of those ballots should currently read “not proven” and the discussion is about whether all jurors agree it should be changed to “proven”.

    Sorry to simple “parrot” what you just posted about but I thank you for sharing and transferring your epiphany to us. Wow.

    • Another:

      Thanks. Tom Cameron who is one of the smartest lawyers I know who is residing in North Carolina wrote me (twice) with a good rebuttal of my argument. I don’t agree with him and still believe if the defendant is required to prove he didn’t do the act then that is placing a burden on the defendant to do something (Tom argues its not a burden but his need in a final argument to defend himself). A couple of other lawyers have responded with good rebuttals.

      I’m still convinced I am right. If the state has the burden to prove something to a unanimous jury beyond a reasonable doubt and can’t do it then that should be the end of the case. For once having failed, you can never say the person was convicted by a unanimous jury, you can only say after one or more tries the state having failed to convict a person finally was able to get the right 12 people together to do that.

      Another unfairness is after a mistrial on a hung jury, the state has the option of proceeding again and again. Tom said it was like a boxing match where there is a draw the fighter will have to fight again. That’s true only if both fighters decide to have a re-match. With the hung jury the decision is only that of the state. The defendant even though getting a draw finds that counts for nothing.

      It really boils down to the idea that it is important to put people accused of a crime in jail which sort of makes mockery of the idea that an accusation does not do away with the presumption of innocence.

  9. Would a hung jury be a victory for the defense? If a mistrial is declared how soon could they retry? Wouldn’t Carney have the Feds over the barrel in that scenario? He could decline the assignment for the second trial requiring the appointment of new counsel and an 18 month delay. Just what WB wanted. 2. Did Carney argue that WB was just a local guy in Southie and that the Feds falsely portrayed who he was ? WB was never the arch fiend the press and government tried to show. He was never “the blond best of prey” of the media’s imagination. No different than a dozen other gangsters.

    • N:

      1. Absolutely – Whitey stays in Plymouth – that’s a big win. Won’t happen though. Too many bodies and gangsters.

      Retrial in the summer – Whitey works out a deal to plea – Carney may or may not stick around – this was a big burden on him and did a big dent in his practice so unlikely he’d want to waste more time – so it’d be another year – Kelly will leave prosecution team – he’s been living with it long enough – Wyshak will bring on a new crew just like Captain Ahad did when he returned from his chase after Moby Dick.

      2. Sort of made that argument about being a local guy not interested in going beyond the good deal he had in Southie. Had no interest in Miami. Didn’t point to any evidence to support it. Agreed, Whitey was no master criminal mind, just a bad guy who did bad things with other bad guys as Wyshak pointed out he was always looking for the next score. The media made him special. I think it was Cullen who had an article on Whitey complaining he was just a gangster who was being treated like he was something special not realizing he wrote a book about him.

      • Matt- Looks like you have about 201 truth seeking soldiers who represent seeking the truth and justice for the victims and common folk who live in Ma.

      • Haha. I think the same thing when Cullen writes something bad about him. Whiteys been putting extra food on his table and better vacations in his life the past year. The underlying theme in his article after he didn’t testify was that Cullen probably lost out on an advance from a publisher. Wish the media was as fair as this blog.

        • Jim:

          Cullen writes that Whitey is a number one all time great criminal in his book; then he says he should not be treated like a number one all time great criminal in his columns. The man has a wee bit of a problem figuring out which was he is facing. Yes, Whitey took a lot of money out of a lot of person’s pockets by keeping his mouth shut. Now they have nothing new to write about.

    • I second this emotion… Mistrial would be a huge victory for the defense. OTOH, if we look at the K. Kilpatrick trial, they were hung on several charges of abt 20. Yet, Kilpatrick waits for a sentence of two decades or more. There are enough charges in W.B’s case that should stick, that will send him to ADX for the rest of his life, no matter what, I think.

      • Kristi:

        What do we know but I agree that he’ll be hooked on enought to send him away forever. Don’t really see jury hung up on everything.