Cut Off at the Impasse
High drama as the defendants gathered before Amy St. Eve to hear a note from the jury. In a voice perhaps better suited to a PTA meeting than a hushed federal district courtroom, the judge read the following: “We have discussed and deliberated on all of the evidence and are still unable to reach a unanimous verdict on one or more counts. Please advise. P.S. We have read the jury instruction very carefully. (75)” The 75 refers to the final page of the judge’s instructions. It tells them, in essence, that they must make every reasonable effort to reach a unanimous verdict, and that they must “consult with one another, express their own views, and listen to the opinions of their fellow jurors,” etc., etc. Immediately after the reading, the government asked for a break, and then beetled out to consult. They returned about five minutes later, this time with Elliott Ness, er, Patrick Fitzgerald, in tow—thus ratcheting an already dramatic situation up to an almost unbearable crescendo. You could hear the various cell phones and BlackBerrys buzzing like angry bees against the wooden benches.
At this point, the judge asked for advice as to what her response should be. Speaking for the defence, Kipnis’s lawyer, Ron Safer, suggested that the note indicated the jury had “been at this state for some time,” and that further deliberation could result in “futility.” He advised that she invite the jury to offer their verdicts, thank them for their service and send them home. Sussman, after somewhat petulantly disagreeing with Safer over the number of days the jury had actually been deliberating (what a contrary fellow), suggested the judge let them offer their verdicts to date and then send them back to work on the others. The judge did neither. Instead, she simply called the jury in, repeated her instructions, and sent them out for further deliberations. (When a judge repeats her charge, it is known among courtroom cognescenti as the “dynamite instruction,” i.e., it helps break whatever logjams are keeping the jury from unanimity.)
The courtroom remained full to the brim in anticipation of what was anybody’s guess. Black took a cell phone call and in his mid-Atlantic drawl announced loudly, “Heighlow,” before dropping into his usual low rumble. Ninety minutes later, another note. St. Eve returned to read it out. It was hopelessly quotidian, announcing the jury’s intention to sit tomorrow from 9 to 4:45. In a matter of minutes, the courtroom cleared, and Black marched (with several Brits noting his sockless, beloafered feet) into a nearby conference room to mull matters with Genson. The media made their usual trek down the hall to watch the jury exit; not much there, really, just 12 tired-looking people with at least one more day of deliberations before them. The afternoon ended with a gaggle of Brits (including the newly returned Tom Bower) auditioning their leads for one another before heading en masse to watch Black’s imperious walk—flash bulbs exploding around him—to his awaiting chariot.