Sunday, October 26, 2008

The Jury Gets a New Member and Should Start Deliberations Again Tomorrow

Live from the Ted Stevens Trial, Day 25

Washington, D.C.—

Judge Emmet Sullivan holds a hearing Sunday evening on the status of Juror # 4 that starts a few minutes after its scheduled start at 6 p.m.

The judge recapitulates the situation: Juror # 4 advised the court on Thursday evening that she was heading to California to attend her father’s funeral, and the judge scheduled this hearing to determine if that juror could return to Washington in a reasonable time and in a reasonable frame of mind to resume deliberations.

Judge Sullivan discloses that despite repeated attempts by court staff, there had no contact with Juror # 4 since Thursday evening. After suggesting that he is leaning towards replacing Juror # 4 with Alternate Juror # 1, the judge asks the parties for their views on what he should do.

The defense asks the court to not replace the juror with the alternate but instead proceed with a jury of 11, as explicitly allowed under the law. The defense cites as its reason concerns about bringing the new juror up to speed on deliberations, but may actually be more motivated by concerns that Alternate #1 may be pro-prosecution and by a desire to maximize the chances of going to 10 jurors (a much shakier proposition under the law than going to 11).

The prosecution doesn’t want to go to 11 for the same reasons the defense wants to do so. Instead, the Department of Justice’s Nicholas Marsh urges the judge to replace Juror # 4 with Juror # 11. That last label was how Alternate Juror # 1 was known while she sat with 15 other jurors during a month-long trial before she was one of four identified as alternates and put on standby status as the remaining 12 went into the jury room to deliberate.

The judge accepts the prosecution’s argument, and agrees with Marsh that the jury is not much disadvantaged by being forced to start deliberations over because the jury has only deliberated for at most 12 hours so far.

Judge Sullivan announces that he is dismissing Juror #4 as a matter of law, and says he will bring in Alternate # 1 tomorrow at 9 a.m. to seat her as a deliberating juror, subject only to brief questioning to make sure that she hasn’t been tainted over the weekend.

The hearing had some differences from others and a major similarity. There were more than a dozen media representatives in the courtroom, including C-SPAN Founder and CEO Brian Lamb. For most in the courtroom on this Sunday evening, informality ruled the day. One normally dapper network news producer even wore jeans and a T-shirt.

Marsh wore a dress shirt with no jacket or tie, while the defense attorneys were in full business suits. There were only three lawyers present for Sen. Stevens, however, as opposed to the nine in the courtroom on the after-hours hearing on Thursday. What was striking was to see the ordinarily stone-faced Sen. Stevens smile and laugh with his lawyers before the hearing started.

The decision to bring in a replacement should logically set back deliberations by a day and a half, but logic does not always control. Tomorrow, I will make a prediction on the trial's outcome before I finish my report on the closing arguments.

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