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Paul Manafort's Lawyers Pushed For A Mistrial Over Jury Drama, Newly Unsealed Transcripts Show

A juror reported hearing another juror comment on the case while the trial was ongoing, which isn't allowed. The judge denied the mistrial request.

Posted on August 22, 2018, at 8:24 p.m. ET

Manafort's lawyers Kevin Downing (center), Richard Westling (center left) and Thomas Zehnle (right) outside the federal courthouse in Alexandria, Virginia.
Joshua Roberts / Reuters

Manafort's lawyers Kevin Downing (center), Richard Westling (center left) and Thomas Zehnle (right) outside the federal courthouse in Alexandria, Virginia.

Newly unsealed transcripts show Paul Manafort's lawyers asked the judge to declare a mistrial at the end of the second week of trial, citing concerns about a report that jurors may have been prematurely talking about the case among themselves.

US District Judge T.S. Ellis III ultimately denied the request, but the sealed proceedings spanned several days, with the judge hearing arguments from the lawyers and eventually questioning each of the jurors about what — if anything — they had heard. Jurors are not allowed to discuss the case, even with other jurors, until they're officially sent out to deliberate after hearing all the evidence and arguments.

The judge had ordered the transcripts about the jury issue sealed until the trial was over, saying he didn't want to "create pandemonium in the media." On Tuesday the jury found Manafort guilty of eight felony counts, and hung on the remaining 10 charges. The transcripts became available Wednesday afternoon.

Manafort's lawyers haven't said if they plan to challenge the verdict. They could file a motion with Ellis for acquittal or for a new trial, or they could pursue an appeal. A spokesperson for Manafort did not immediately return a request for comment about the jury issues discussed in the unsealed transcripts.

Ellis didn't say anything in open court about the substance of the sealed proceedings at the time, but there were clues. The bench conferences included the court security officer, which is unusual — typically only the lawyers would be involved. The officer served as the link between the jury and the judge, and any juror communications were supposed to go through him.

According to the transcripts, on Aug. 10, the judge told prosecutors and Manafort's lawyers that a juror told the court security officer that she overheard another juror discussing Manafort's defense. The juror who made the report wanted the judge to instruct the jurors not to discuss the case.

Special counsel prosecutor Greg Andres suggested the judge give an instruction saying the jurors should not make up their minds now and should not discuss the case. The defense disagreed. Manafort's attorney Richard Westling wanted the judge to question the juror, and the judge agreed. Ellis also agreed with Westling's request to do the questioning outside of the courtroom, although the judge noted that it went against his own rules.

The juror who made the report, a woman — her juror number and name were redacted in the transcript — told the judge that another juror had said, "'I don't believe that the defense has—' let me word this properly 'not has much of a case, but that they don't have much to present. Or, to refute what's already occurred.'" The juror said she was the only person in the room when the comment was made.

But she then said other jurors had discussed the case in recent days, including another juror who made a comment about the defense being weak. She also said someone had "brought up something political" — she didn't provide details, and the judge denied a request by Manafort's lawyers to probe further — and that she told them to stop; the other person responded that it was not a "political case," she said. The juror said that the comment she originally reported "crossed the line."

The judge then spoke with the juror whose comment was at issue. This juror denied making remarks that would suggest she had made up her mind about the case. “I don't recall, but I mean — what I meant was that it would be really hard to have to defend against that,” she told the judge. Ellis asked the juror if she understood Manafort had a presumption of innocence and wasn’t required to put on evidence. The juror said yes.

Manafort's lawyers asked the judge to again question the first juror, the one who made the report, to get more information. The judge said he was reluctant to undertake a "special counsel's investigation" — he added he couldn't "resist" the turn of phrase — but agreed to bring her back over the government's objection.

The first juror said a male juror had made the other comment about the defense being weak, but she couldn't identify exactly who it was. The other comments she heard were more generally about the case, not necessarily taking a side, she said.

After that exchange, Manafort's lawyers asked for a mistrial. That was on a Friday. The judge heard arguments the following Monday, Aug. 13, again under seal. Manafort's attorney Kevin Downing asked the judge to investigate further, saying they were concerned about the jury being in "premature deliberation mode." Andres called Downing’s characterization a “gross overstatement,” saying the remarks at issue were “stray comments” not deliberations. Ellis proposed questioning all of the jurors. He gave the lawyers until the next day to consider it.

The next day, after another brief round of arguments, the judge said he would question the jurors. One by one, the jurors and alternates were brought before the judge, asked if they were able to give Manafort the presumption of innocence until the end of the trial, and asked if they had heard any comments about the "weight or effect" of the evidence. All of the jurors answered yes to the first question and, with the exception of the juror who originally made the report, answered no to the second question.

Ellis then denied the request for a mistrial.

"I have paid very careful attention to what has occurred, I have considered carefully what each of the jurors said, particularly [REDACTED], and I've looked at and read the briefs, but it is my judgment that a mistrial is not warranted in this case," Ellis said.

Manafort's lawyers made a second request for a mistrial during jury deliberations. On Aug. 20, the third day of deliberations, the jury communicated to the court security officer that they had concerns about their questions to the judge being read in open court. The judge speculated that they felt "intimidated," although he later said that was an "ill-considered" comment, since the jury hadn't said that.

Downing moved for a mistrial, but didn't explain the grounds — he asked for time to do research. The judge denied the motion right away.

"I see no earthly reason for a mistrial," he said.


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