Mistrial May Give Defense Advantage
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Miami Herald, The (FL) Dave Von Drehle, Herald Staff Writer The chaotic collapse of the Miami River Cops corruption trial raised more questions than it answered. When the 3 1/2-month courtroom ordeal ended in a mistrial -- when a year of preparation sank in a morass of jury confusion -- people were bound to wonder: Who gains the most from the mistrial? Was the jury's confusion part of the defense's strategy? Was it a mistake to try seven defendants on a hodgepodge of charges? Should the case have gone to state court instead of federal court? And what's likely to change for the second trial? So The Herald asked a number of prominent lawyers to weigh these questions about the River Cops case. * Which side "won" when the mistrial was declared? Technically, a mistrial means no one wins there are no convictions, no acquittals; no one goes to prison, no one goes free. "You really go back to Square One," said Anna Barnett, a prosecution spokeswoman from the U.S. attorney's office. Witnesses revealed But defense attorneys argue that prosecutors have a big advantage in federal courts, where rules allow for surprise witnesses. The mistrial means the defense got a look at government witnesses and survived. "Anytime you can come away from a case of this magnitude in federal court without a conviction, it's a great victory for the defense," said Richard Sharpstein, a local defense lawyer. * Did attorneys intentionally confuse the jury? Thomas Ewald, a law professor at the University of Miami specializing in trial tactics, said it's fairly common in complicated cases for defense attorneys to select jurors who are easily confused. Unable to make sense of a mountain of evidence, the jurors might decide the defendant is not guilty. But a number of courtroom veterans said they don't believe defense attorneys intentionally baffled the River Cops jurors. "It's bad policy," said incoming Florida Supreme Court Justice Gerald Kogan, a former prosecutor and defense attorney. "A juror is a two-edged sword. He can be swayed either way." Jeff Weiner, a,local defense attorney, said if anyone deliberately set out to confuse the jury in the River Cops trial, it was the prosecution. He believes that's the reason the trial encompassed seven defendants and 64 charges. "It's a notorious and devious prosecution tactic for which there is no reason other than to confuse the jury," Weiner said. Part of the problem is that many of the sharpest jurors are too busy or too opinionated to be selected. Said Neal Sonnett, another prosecutor-turned-defense lawyer: "It's very difficult, especially in long trials, to get jurors who have the ability to follow as much as you would like." The River Cops trial was long and complicated enough to mix up any jury, the experts agreed. * The case was tried in federal court rather than state court. Was that a mistake? No mistake here. The experts agree it was a good move. The reason: In state courts, all witnesses must be revealed to defense attorneys and cross-examined before the trial. In federal courts, there's an element of surprise. Defense attorneys call it "trial by ambush," and they bitterly admit it could have been a big advantage for the prosecution. "In state court it is truly a 50-50 thing," said Weiner. "In federal court you start out 90-10 in favor of the prosecution." That advantage is gone now, however. The first trial gave defense attorneys a clear sense of what they can expect from government witnesses. Shorter trial likely In one way, this is good news for everyone: The trial is likely to be much shorter next time. Because everyone knows what to expect, the trial should go straight to the point, meaning less confusion for the jury, the experts said. * Was it a mistake to lump all seven defendants together in a single trial? There has been a lot of second-guessing. "It's better for the government to try them all together because all the evidence is going to come out anyway," said David Waksman, a former prosecutor now in private practice. "Whether you're trying the conspiracy count or the income tax count or whatever, the whole story has to be told." But Sonnett, former chief of criminal prosecutions for the U.S. attorney's office, said: "When I was chief of the criminal division for the U.S. Attorney's office, it was my philosophy to prosecute the simplest case I could. The more charges and the more defendants you throw in, the more confusing it gets. And as we have seen, that confusion can come back to haunt you." Too much to remember? Said defense attorney Weiner: "There's no jury in the world that can keep track of all that testimony and all those witnesses. They could easily have broken down the cases, tried each one for two, three, four weeks." |
