What Have We Learned The Day After The Verdict Didn’t Come

I’m sure you were all impressed with me when I told you the verdict would come in yesterday. I wasn’t alone in my prediction, almost all the grand pooh-bars held the same opinion. One was on television last night and when confronted with his error said “well, then, I guess it will be Thursday, or Friday, or into the weekend or even next week.” You see how smart we are at predicting when a jury will decide.

I did my best to have it happen. I apologize to you for being unable to pull it off. Perhaps a couple of the jurors did not get to read my blog yesterday morning so they didn’t know what I expected them to do.

I’ll forgive them, but if they are not going to embarrass the prosecutors, they better come in with it today. As I’ve been telling the jurors all along there is little to debate about the case. I’m at a loss to understand why they didn’t get the message. It was clearly explained to them in the three and a half closing by the prosecutor. So what went wrong?

10:00 yesterday morning the jurors came in with the first question: something about the statute of limitations. Tell me that doesn’t send a signal that something is awry. The only mention of the statute of limitations during the trial was when Wyshak tried to wash his hands of Pat Nee being out on the street and putting the blame on DA Conley in Suffolk. Are the jurors saying what the hell, if Pat Nee got a pass why are they picking on Whitey. Maybe some of the jurors saw that reality show with Nee acting as the top gangsters and that threw them over the edge.

Or it could be that a handful are wondering why Martorano is on the street and peddling his book; why Weeks is on the street and doing the same thing with his book; why is Pat Nee on the street thumbing his nose at law enforcement, peddling a book and staring in a TV series; and why Flemmi expects to get back on the street and the prosecutors won’t commit to not filing a Rule 35 motion on his behalf? What else can explain the concern at ten in the morning with the statute of limitations. The prosecutors hearing that question must have felt a tug in their stomachs that the jury was not buying what they offered for sale.

Remember this is an open and shut case, 95% or more of it conceded by the defense team, so any decision by the jury that some counts or predicate acts are not proven is a big win for Whitey and his team of Carney and Brennan.

Or is what happened the simple thing that a lot of juries seem to do in the beginning of their deliberation. They talk about everything except what they should be talking about. They are just getting used to each other. So it is hard to read too much into that question.

Then we had the mid-day mystery yesterday. We’ll find out sometime down the line what it is about but my guess is that there’s one juror who has announced she is so put off by the government’s case that she cannot vote for guilty under any circumstance; or, she believes Whitey is guilty of everything so she won’t waste any time engaging in the discussion. The foreman didn’t know what to do with such a juror who in a sense was refusing to deliberate. The judge had no choice but to do what she did which was nothing.

I’d say Carney was looking for a mistrial at the side bar while the prosecutors, unable and unwilling to go through this again, maintained that it is early in the case and the juror may change her mind so send them back to deliberate. The judge went with the prosecutors.

How else can you interpret it after hearing this? A report said Prosecutor Kelly walked back to the families of the victims and said, “The deliberations continue. Now we wait.” I could be way off base but nothing else seems to fit.

Finally at the end of the day the jury has some question relating to the RICO indictment. According to the judge: “The jurors understand that in order to find a racketeering act to be proven, it must be unanimous among them. The question is, must it also be unanimous to find a racketeering act “not proven”? ”  

This is not a good sign for the prosecutors. Any loss of any predicate act will be bad. It seems like more than one predicate act is going out the window. Remember anything less than a clean sweep is a repudiation of the prosecutors case because so much of the case was not contested.

Any loss of the predicate acts relating to the women strikes hard at the prosecutors. Their whole reason behind playing up the case is that Whitey is the kingpin, the worst of the worst. Such a finding will mean Flemmi clearly takes his place which is clearly where he belongs. The prosecutors decision to climb into bed and cuddle with Flemmi and let him tell what seemed like lies on the stand will come back to bite them.

How much the prosecutors will fumble, if anything, will also point to the jurors view of its tactics. JW Carney clearly told them they are us. They are in the unique position of telling the government that what it is doing is wrong. They can show that no matter what the government is selling the final decision on whether it will be bought comes down to the average Joe and Jane.

We may have the vote but often our representative don’t seem to get the message. This is the one way to make it absolutely clear. Another one of those pesky rights given to us in the Bill of Rights.