Without sitting in the courtroom, it is hard to guess how a jury will feel about a case. From reports of the Manafort trial, two things are pretty clear: the judge is both crotchety and also a little hostile; and the evidence is pretty overwhelming.
There is little doubt based on the evidence shown that Manafort was cheating on his taxes and laundering money. Unfortunately for the prosecution, the guy handling most of that was Gates, who (surprise) was no angel himself, and was also stealing from Manafort. The immediate take on this should be that this is a very common situation in criminal prosecutions. That means the prosecution knows how to handle these things, and also, since convictions by federal prosecutors are nearly inevitable when they go to trial, juries tend to see through any smokescreen the defense raises. In a somewhat analogous case involving bank fraud (but a civil case) I talked to the jury after the case settled, and it was surprising how well they saw into the underlying facts even though many of those had been avoided at trial — they asked where X was (X being they guy who was really at the bottom of the whole thing and whose name had been avoided by both sides; and they also said of the defendants who tried to point the finger at a really sleazy witness that they were “big boys.” I suspect the Manafort jury will likewise see though any finger pointing at Gates.
As an aside, this partially explains why the prosecution, much to the consternation of Judge TS Ellis, spent a lot of time in the opening pointing to Manafort’s big spending and lavish lifestyle. While the judge simply said it’s not a crime to be rich, it seems the prosecutors wanted to make it clear that, whether or not Gates had some things of his own going on the side, most of the benefit of the scheme went to Manafort. It was a good strategy that hopefully minimized any argument that Gates was the only real crook.
The judge has been openly critical of the prosecution, even at times in front of the jury, and even to the point where he had to ask the jury to ignore his outburst. This raises several issues.
First, the judge is not unlike many experienced trial judges who push attorneys hard to move things along quickly. That is not necessarily a bad thing. There is a great deal of uncertainty and second-guessing in trying a case, and a judge can actually help lawyers by pushing them along even when they are not sure they have covered something sufficiently. Whatever one’s thoughts about whether OJ Simpson was guilty or not, and whatever valid points the defense raised about how law enforcement approaches cases, the fact is that a conviction would have been a lot more likely had Judge Ito in that cases made the attorneys get the case finished in a few weeks.
It is also true that, to some extent, a jury will side a bit with an attorney when the judge keeps coming down on him. Especially in this case, where the judge had to actually tell the jury that he may have been wrong, the jury will take other criticisms by the judge with a grain of salt, even though the judge has been cozying up to the jury and joking with them.
Most recently, it seems in a sidebar the judge questioned whether there could be bank fraud if the bank CEO made the loan to Manafort because he wanted a job with the Trump administration, and despite the decision of other bankers to reject the application. In legal terms, any fraud was not “material” because it didn’t really affect the ultimate decision. That question has been soundly refuted in the memo filed by the US Attorneys today, but the fact that the judge asked the question is a bit worrisome. It is now crystal clear that Manafort submitted fraudulent documentation to the bank, and that alone constitutes the crime — whether the bank made the loan or not.
Double jeopardy comes into play in strategy here. The ban against double jeopardy has a wide reach. In general, once a jury is impaneled, the defendant can only be tried one time, and if he is not convicted then, he cannot be tried a second time. There are a few very rare exceptions.
The most common exception is a hung jury. If the jury cannot reach a verdict either way, then the case may be retried if the prosecution so chooses.
If the defense or the judge does something outside the control of the prosecution that makes a new trial a “manifest necessity” then there could be a mistrial where the case could be retried. The bar for this is pretty high, and generally it requires the judge to make the declaration. It is obviously not easy to convince a judge that he screwed up and should allow the case to be retried.
An even tougher situation for the prosecution is when the judge makes an error and refuses to correct it. Unlike the defense, the prosecution cannot allow the case to be completed and then appeal the outcome. The prosecution then must seek an extraordinary writ from the court of appeals. Since the case is moving ahead, that means they have to rush to the court of appeals and convince them to issue an order halting the ongoing trial to provide time for briefing and an expedited consideration of the issue. Chances of getting that accomplished are slim indeed.
In defense of Judge Ellis, an indulgent judge can hurt the ultimate resolution of a case by allowing grounds for appeal. By being very strict with the US Attorney, the judge is also ensuring that Manafort’s chances on appeal, if convicted, will be slim. For example, his questions about the materiality of fraudulent statements to a bank may not be his way of looking for an out for Manafort; rather, he could be exploring an issue to ensure that the jury charges are completely accurate. An erroneous chare could lead to a successful appeal. (Note that, while the prosecution cannot appeal, it can retry the case if the defendant successfully appeals.)
Given the clarity of the evidence, and the likelihood that many jury members will be inclined to vote for conviction, it seems unlikely that Manafort will be acquitted. It also seems unlikely that any juror without strong political feelings will, if hesitant to convict, not be willing to be convinced by the other jurors to vote for conviction.
The bottom line seems to be that, if there is at least one juror with a strong political unwillingness to convict, the final result could be a hung jury, leading to a retrial, probably with the same judge. Given the care the lawyers on both sides put into investigating potential jurors, we can hope that the jury in this case is fairly middle of the road, in which case conviction will be the almost certain result.