The Verdict: Hanging Ambiguities

The entire episode of The Verdict tonight was devoted to the Conrad Black trial. The first segment had Rosemary Thompson recounting the events since 3:30 this afternoon, and most of the rest was devoted to legal and jury analysis.

Ms. Thompson reported that the jurors returned a note saying that they had agreed on some charges but not all. They made a point of how carefully they had read “page 75” of jury instructions. The judge began speaking to the lawyers, and sent the jurors back in. They’re now home, and will deliberate starting at 9 AM CT. There will probably be a verdict tomorrow. Conrad Black himself arrived suddenly, without his family, and was “mobbed” by the press as he went in, according to Ms. Thompson. He was “light-hearted” then, but was solemn when the note was read. The prosecution seems to want a long deliberation; they're the ones who don’t want to hurry. In situations like this, the judge usually sends the jury back in.

The next segment featured Paul Lisnek, a jury expert. He concluded that this deadlock seems to be better news for the defense than for the prosecution. Deadlocks tend to result from real doubt in the room. But, jurors do change their minds after the night break. The least likely cause for it would be personality conflicts. The more likely cause would be different weighings given to the same evidence. The jury may have been looking for new advice from the judge. This is where it gets tricky for the judge, as grounds for an appeal due to improper jury influence can arise at this stage. The use of a dynamite instruction” (the Allen instruction) carries that risk. It could be brought into play if jurors retire tomorrow afternoon, but the latter's not likely. Csr. Lisnek’s call was for a verdict late tomorrow afternoon. He believes that the jury are having trouble with the primary charges, the frauds.

The third segment feauted veteran trial-observers Ted Chung and Steve Skurka. Csr. Chung said that his first reaction was a lack of surprise, as it has been a “close case.” He agreed with Csr. Lisnek that it bodes well for the defense. The Allen instruction is used fairly frequently in trials of this sort; most often, Allen instructions result in convictions.

Csr. Skurka said that the prosecution's reaction was shock; the defense was excited. He believes that the jury is stuck on the perks and other ancillary charges for Conrad Black, and has agreed to acquit on the others. Csr. Chung called that assessment “optimistic.” Csr. Skurka justified his call on this basis: a guilty verdict on the the central charges should carry the others. Csr. Chung responded that they don’t know the relative seriousness of the charges, and may be hung up on the “conceptually difficult” racketeering charge. He also noted that Ron Safer, with his get-on-with-it request, may be laying a foundation for an appeal.

After a less legal-centric segment featuring journalists Margaret Wente and Joanna Walters, a legal roundtable began. It started off with a televised quote from Edward Genson saying that it will probably be over tomorrow, and that it’s too ambiguous to call. Then, the three guests - Prof. Albert Alschuler, James Morton and Lenny Hochberg - were introduced.

Csr. Hochberg began by saying that he wasn't sure that the deadlock was good for the defense. Csr. Morton opined that the non-compete-related fraud charges were what the jurors were hung up on. It wasn't really a complete victory for the defense. Csr. Hochberg added that the jury may be daunted by the seriousness of the charges, especially the racketeering charges. Prof. Alschuler said that the jury may simply be confused at the charges' seriousness, plus the volume of detail and ambiguity of the evidence. Cases of this sort may be too complicated for a jury because of these ambiguities.

Csr. Morton disagreed with that opinion, saying that the nub of the case isn’t complicated. The prosecution's case was “compelling,” but not beyond reasonable doubt. He repeated his earlier prediction of acquittal. Csr. Hochberg sided alongside Eddie Greenspan while concurring. Prof. Alschuler added that the prosecution may have been too callow to carry the case unambiguously.

Ms. Todd counterpointed Patrick J. Fitzgerald’s reputation to Csr. Greenspan's. She then brought up the jurors' transcript request, which was denied them, and asked if the jurors are trying to make the decision without considering all of the evidence. Prof. Alschuler replied that jurors aren’t superbeings. Csr. Morton pointed out that people do use heuristics, but jurors have at least seemed well-organized. When asked by Ms. Todd if a retrial would be simpler, he said no.