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Saturday, February 6, 2010

Too Effective? Jury Nullification Warning from Jersey Corruption Judge

The first of the promised big huge "Bid Rig" series of federal corruption cases is going to a jury next week, following closing arguments Monday in Newark federal court in the case of U.S. v. Beldini.

Federal district judge Jose Linares warned Leona Beldini's defense lawyer Brian Neary (Code Name: Bow Tie) not to use a "jury nullification" argument to the jury.   This argument rests on the theory that, essentially, a jury can actively disregard a judge's instructions on the applicable law, rulings on evidence or pretty much anything else and find a defendant innocent if they believe the case, the law or the judge to have been unfair or unjust.  (Some would argue this happens all the time, but that the concept of jury nullification is rarely cited.  See People v. Simpson, O.J.)  

To his credit, Neary protested, seeing this warning as an effort to induce him to provide a less than vigorous defense for his client.

The recent cases of Mark Shelnutt and Ben Kuehne (detailed previously by Crime, Politics and Policy in 2009) show what happens when a defense lawyer becomes too much of an obstacle in the pursuit of a conviction.   (In Kuehne's case, he wasn't even the defense lawyer, merely the outside lawyer giving a legal opinion on the legitimacy of the origin of funds used to pay the legal fees of the very noted Florida defense lawyer Roy Black.)   In the Beldini case, we don't see the prosecution going after the defense lawyer; we see the admonition from the judge.

As an aside, why prosecutors don't relish the intellectual challenge more is mind-boggling.  Perhaps they are persuaded to keep their mental gymnastics occupied through conjuring up new theories of criminal liability, criminal sanctions for what essentially are civil or regulatory violations, new methods of circumventing the Fourth Amendment, or even new quasi-rules of evidence. 

As for the Beldini case, Crime, Politics and Policy has written earlier this week on the amazing repugnance of the star witness in this case, a man whom today goes by the name Solomon Dwek (nom-de-guerre: David Esenbach).  Why the federal government allowed (or recruited) this man to solicit bribes, instead of someone much more honest (say, someone who was not an admitted felon and not extremely desperate to please in order to get a sentence reduction for "substantial cooperation" with the government ) is even more puzzling.

I will not predict the outcome of jury deliberations, but I do predict there will be some interesting  grounds for appeal. 

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