Monday, November 24, 2008

The Jurors Speak

Berkeley, California—

As an earlier post noted, several jurors in the Ted Stevens trial have been speaking to the press. Their comments shed light on the effectiveness of the strategies and tactics the prosecution and defense used in the five-week trial on charges of failure to follow Senate reporting requirements on gifts. (Thanks to Del Quentin Wilber of the Washington Post, Jesse J. Holland of the Associated Press, Joe Palazzolo of Legal Times, and Colleen Walsh—a juror who has her own blog called “juror 11 explains all” at

Here are the major points that come out of the jurors’ remarks:

1. Ted Stevens hurt himself by testifying. "He looked fragile for most of the trial, and then he testified, and, man, he became this lion," Walsh told the Washington Post. "I thought, 'Wait a minute, if the defense is trying to portray this man as a sympathetic character who didn't know what was going on in his life, why did they put him on the stand and he could recall everything that happened except the gifts?' "

To the two jurors and the two alternates that the Washington Post interviewed, while on the witness stand the Senator “came off as evasive, arrogant and combative, and his answers did not jibe with the evidence.”

Interviews identified at least four statements by Stevens that jurors found incredible:

a. He said that he believed that two employees of the now-defunct oil-services giant VECO that worked on his Alaska home renovation project—Rocky Williams and Dave Anderson—were moonlighting for him or another contractor while laboring on the remodeling.

b. He said that a $2,700 massage chair he received was just a loan, although it was still in his Washington home seven years after he got it.

c. He said that he had not returned items that he had not asked for and in most cases he did not want, including furniture, a professional gas grill, and a salmon statue.

d. He said that even though long-time VECO CEO Bill Allen kept giving Stevens things Stevens did not want, he never changed the locks on the chalet in Alaska to prevent the oil-services titan from putting even more things in the home.
Walsh told the AP that another aspect of the testimony not helpful to Stevens was that “he was kind of demeaning to the lawyer”—showing that Stevens’ aggressive jousting with lead prosecutor Brenda Morris was counterproductive.

“It was kinda interesting to see him shoot himself in the foot,” said Brian Kirst. An alternate who did not deliberate after sitting throughout the trial, Kirst has spoken about the deliberations and the verdict with friends on the panel.

2. Ted Stevens’ frail appearance during the trial probably helped the defense more than all the impressive character testimony his lawyers offered. The defense was that Stevens did not keep track of the renovations to his home and did not stay on top of the household finances, so he was not aware that VECO or Allen had provided much of the work on those renovations without being paid for it. Jurors said the way Stevens sat silently at the defense table for almost five weeks while listening to the testimony on headphones tended to support the notion that he was an elderly grandfather type who relied on others to handle many of his affairs. This image was of course destroyed by the belligerence and detailed memory that the Senator showed on the stand.

The star-filled list of character witnesses—including former Secretary of State Colin Powell—did not, by contrast, make any difference with the jury in its view of the case. Walsh told Legal Times that “We really liked Colin Powell, but the facts still said that [Stevens] got gifts and didn’t report them.” The character testimony never even came up during deliberations, according to Walsh’s comments to Legal Times.

3. Catherine Stevens’ testimony did not help the defense. The defense relied heavily on the theme that Sen. Stevens had assumed that his wife Catherine was responsible for getting and paying the bills for the home renovation, which would mean that he did not knowingly conceal the fact that Allen had arranged for VECO to do tens of thousands of dollars of work on the house.

Catherine Stevens’ appearance on the stand, however, did not advance the jury’s acceptance of this critical defense theme. The jurors apparently zeroed in particularly on her statement that she had not gotten a contract with the construction company she believed was doing most of the work as well as on her incessant complaints about the quality of the work. According to the Washington Post, “Jurors realized she was not closely supervising the project and ignored her testimony….”

4. The taped comment regarding jail time hurt. The prosecutors played a taped phone call that Allen initiated at the feds’ request after he had been confronted and agreed to cooperate with the government’s investigation. In the call, Stevens told Allen that the worst they could expect was “a little time in jail.” During closing arguments, lead defense attorney Brendan Sullivan contended that listening to all the FBI tapes of the Stevens-Allen conversations played at the trial showed that the comment referred to possible exposure over campaign contributions, not the unreported gifts that Stevens was charged with in this case.

This explanation was unavailing, as two jurors told the Washington Post that Stevens’ comment was a telling admission.

5. The defense attorneys’ apparent beliefs that Juror #9 was relatively favorable to the defense and that Juror #11 was likely to be pro-prosecution were both correct. The first full day of jury deliberations, the rest of the jury asked that the judge remove Juror #9 for being disruptive and unable to follow the instructions. This development was widely seen around the courthouse as helpful for the defense. Juror #9 expressed the view that Stevens could not be convicted for not reporting gifts he had not wanted in the first place, and also said that she was concerned about sending the Senator to prison. These reservations did not of course prevent that juror from ultimately convicting Stevens, of course. Juror #11—Walsh—told Legal Times that another juror responded to the first concern by saying “If you get a sweater for Christmas that you don't like, and you don't return it, you still got a gift even if you hate the sweater.” As to the second issue, the Washington Post reported that Walsh said the other jurors told Juror #9 that deciding on punishment was the judge’s job, not the jury’s.

After Juror #4 (Marian Hinnant) left during jury deliberations, the defense’s stated preference was either to wait for that juror to return or to go with 11 jurors rather than adding an alternate to replace Juror #4. It was public information that such alternate would have been Juror #11—Walsh—who sat through the evidence and the arguments before being put on standby status before deliberations started. Speculation was that one of the defense’s concerns about adding the alternate was that Walsh would tend to favor the government, and the jury did return guilty verdicts on all counts in less than six hours of deliberation after the judge installed Walsh in place of Juror #4.

6. The jurors’ acceptance of the government’s case was shown by the way that individual jurors parroted lead prosecutor Brenda Morris’s characterizations of the evidence. It’s a trial lawyer’s dream for jurors to see the case so much the way the lawyer wants them to see it that the jurors describe the case in the words the lawyer has given them. Brenda Morris got to that point. Walsh repeated Morris’s description of Stevens as a “lion,” turning against the defense the statement by Sen. Orrin Hatch in his character testimony for Stevens in which he called the Alaska Senator a “lion of the Senate.” Similarly, Morris had said in her closing argument that Catherine Stevens “is still recovering from the bus he threw her under” and another juror told the Washington Post that Catherine Stevens did not “get the memo about getting thrown under the bus.”

7. The judge’s criticism of the prosecutors for failing to disclose some evidence to the defense as legally required did not affect the jury’s verdict. During the trial, Judge Emmet Sullivan repeatedly lambasted the government’s lawyers for failing to meet their obligations to turn over evidence to the defense. The court excluded some evidence from the trial as punishment for some of those failures, and gave the jury an instruction that it could not consider some evidence because the government had failed to meet those discovery obligations. With the exception of that one instruction, however, all of the court’s criticism of the prosecutors occurred outside the presence of the jury, and the little bit of it that was given to the jury did not seem to make a difference to the jury’s decision. Walsh told Legal Times that this one instruction was never discussed, except in passing, as the jurors read the instructions at the beginning of deliberations. “We were told to focus on the facts. That’s what we did,” Walsh said.

A final observation reflects the unusual twist that one juror is actually blogging about her experiences in the trial. That would be Juror #11, who sat through all the evidence and argument and was then excused before deliberations started. Juror #11—now revealing herself to be Walsh, a program assistant for a church—was named Alternate #1 and was brought back to join the deliberation in place of Juror #4, who had left to go to horse races in California.

Walsh is now walking through the trial on her blog. The blog is colorful—she reveals that she gave pop-culture nicknames to the lawyers like “Mr. Burns” for Brendan Sullivan, “Rosie Perez” for Brenda Morris, and “Perfume McPhee” for prosecutor Nicholas Marsh (for wearing excessive cologne one day).

Despite its fun, Walsh’s blog is a development that has got to disturb the prosecution. It’s one thing to give brief interviews to the press, as some other jurors have done in this case and in previous cases. It’s another thing to give a detailed recounting of the evidence, which can trip up even a prolific note-taker like Walsh appeared to be.

She has already made significant factual errors in describing a meeting recounted by the trial’s first witness, VECO employee John Hess. Walsh states on her blog that Ted Stevens met at the Double Musky restaurant with Bill Allen and Hess to review plans drawn up for the home renovation project, and also strongly suggests that Bob Persons—the Double Musky’s owner and Stevens’ eyes and ears on the remodeling—was present at the meeting. Actually, the meeting was at Jens’, a restaurant in midtown Anchorage, and Persons was not present.

Courts traditionally don’t want to know too much about what happens in jury rooms, and the prosecutors would certainly be happy if Walsh found herself too busy to keep going with her blog.

Administrative Note: As this post’s byline suggests, I’m traveling. I’m also visiting relatives and friends. Posting is likely to be lighter than usual until my return to Alaska on December 5. Happy Thanksgiving.

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