When Juries Push Back

Support for the show comes from Charles Schwab. At Schwab, how you invest is your choice, not theirs. That's why when it comes to managing your wealth, Schwab gives you more choices. You can invest and trade on your own. Plus, get advice and more comprehensive wealth solutions to help meet your unique needs. With award-winning service, low costs, and transparent advice, you can manage your wealth your way at Schwab. Visit schwab.com to learn more.

Hey everyone, Ellie here wishing you a happy Friday. Before we get to the heart of this week's podcast, two quick things. So first of all, I'm sure many or all of you saw that earlier this week, the U.S. Supreme Court denied cert, meaning rejected, will not take up the case seeking to overturn Obergefell, seeking to overturn.

the case from 10 years ago that recognized the right to gay marriage. I'm happy to say, look, we make predictions in this space. Sometimes they come true, sometimes they don't. But I did write a piece back in August saying that that was exactly what would happen. That does not mean...

that gay marriage will never be challenged. It will probably continually be challenged, but it does mean that there's zero appetite or not enough appetite in the Supreme Court right now to take it up. I do think that right is safe. And look, I usually don't take a rooting interest in these things, but I was happy to see that outcome. I'm happy to see the Supreme Court reject this challenge. reaffirm the right to gay marriage. Second of all,

Boy, we saw this new bunch of emails released from the Jeffrey Epstein case. I don't want to say the Jeffrey Epstein files because that sort of suggests that they're tidier than they are. There's not like some red well that contains all the files. But we saw House Democrats release three emails, came out Wednesday morning, that are pretty remarkable. Look, there's a lot we don't know. They raise a lot of questions about what we know and about what people have said.

I will tell you my gut reaction to those emails is these are going to reignite the story in a meaningful way. It's not just the continued drip, drip, drip. It shows something different. in kind from what we've already seen. So stay tuned on that. I'm sure we'll be discussing it here on Cafe. Okay, on with this week's podcast. As always, love to hear your thoughts, questions, comments. Keep them coming to letters at cafe.com.

When I was a brand new prosecutor at the Southern District of New York, the office's elite mob prosecutors tried John Gotti Jr. three times within a year. All three times, the jury hung. Throughout the doomed prosecutorial trilogy, I'd go over to the courtroom and watch bits of the trial enthralled at the cinematic spectacle. Witnesses named Mikey Scars and Little Joey. bugged social clubs, beefs and sit-downs and hits gone good and bad.

Prosecutors technically can retry a case after a hung jury, but generally will stop after two tries, maybe three if there's some compelling need. After the third Gotti trial resulted in a hung jury, the SDNY did the right thing. and dismissed the indictment. Three years later, federal prosecutors in Florida decided to give it another go. They indicted Gotti again a fourth time on charges that incorporated much of the SDNY's original case.

but added a few wrinkles as well. By that point, I had become a supervisor in the organized crime unit, and we wanted no part of it. Long story short, Gotti successfully moved the case back up to the SDNY. It landed in my lap and we tried him again and the jury hung.

again. After the trial ended, we spoke with the jurors. About half of them wanted to convict, and the other half thought he was guilty but objected to the serial prosecutions of the Gambino family boss. You can't try the same guy four times.

just not fair, one juror said to me. This was my hard but vital lesson in jury nullification. Sometimes juries just tell prosecutors to screw off. Jury nullification has a potent but largely unspoken role in our criminal justice process. Judges do not instruct jurors that they can disregard the actual evidence and reject a case for political or emotional or other extraneous reasons. But who can stop?

jury from doing just that, after all. They don't attach a statement of reasons to a verdict form. They simply check guilty or not guilty. No further explanation sought or given. Defense lawyers at times try to give jurors a little wink and nod, but prosecutors and judges aggressively police any suggestion of nullification. Even though it's not formally on the books, jury nullification has its role.

and our democracy. Just as the jury serves as a bulwark of liberty by determining whether a defendant's guilt has been proved beyond a reasonable doubt, so too can a jury reject cases that might be technically valid. but just too much bullshit in the broader, non-technical sense. This is what's happening now to Justice Department prosecutors in Washington, D.C. and elsewhere. The contagion will spread as DOJ systematically abuses. its discretion and power. Take, for example, Sean Dunn.

The D.C. Subway sandwich thrower who was acquitted last week on charges of assaulting a federal officer. Side note, some people have said, well, it should be called a hoagie. Where I'm from, yeah, you'd call it a hoagie. But no, you wouldn't call a Subway sandwich a hoagie. It's just not. Subway, but it's just not at the level deserving the Hoagie name. Okay. Anyway.

A grand jury had initially rejected felony charges and prosecutors should have gotten the hint right there. Given the grand juries apply a low burden of proof and typically will indict anything the prosecutor puts in front of them. No, I'm not doing the ham sandwich joke here. And it was salami. in this case anyway. Undeterred, prosecutors pressed on with a misdemeanor assault charge and took Dunn to trial. It didn't go any better. This feels ridiculous to say out loud, but here goes.

The sandwich thrower was obviously guilty of at least some lowly misdemeanor. He intentionally and angrily threw an object at a uniform federal officer and hit him. The problem, of course, is that the charges don't pass what we at the SDNY used to call the straight face test. If you can't make the case without cracking a smile, it's not worth bringing.

The D.C. jury apparently applied that test and came out with an acquittal, notwithstanding the prosecution's valiant effort to paint the hurling of a footlong as a dangerous attack. The law enforcement agent testified that he, quote, could feel it through his ballistic vest. And in the tragic aftermath, he, quote, could smell the onions and mustard, end quote, before finding an onion string hanging off his equipment and a mustard stain on his shirt. Courtroom observers reportedly laughed.

And the jury apparently did, too, with its verdict. This is a developing trend. In the weeks after President Donald Trump deployed the National Guard in Washington, D.C., various grand juries rejected proposed federal cases involving silly or sympathetic conduct. and petty potential charges. One case involved verbal threats made by an intellectually disabled man who had consumed seven alcoholic beverages and politely thanked the officers who arrested him.

In California, grand jurors rejected proposed indictments of anti-ICE protesters, while juries have returned at least two acquittals. And in Virginia, a grand jury voted down one of the proposed charges against Jim Comey. and barely approve the other two. By the way, if either the Comey or Letitia James cases reach trial, don't be surprised if jurors engage in a bit of nullification, given the overt political tone of those prosecutions.

Part of the problem here lies in the cases that the Justice Department has chosen to bring. But more fundamentally, this is about a loss of trust. Before the current Trump administration, it was exceedingly rare for federal judges to call out the truthfulness of DOJ prosecutors.

Sure, judges routinely rebuke prosecutors and reject their arguments. I've been there plenty, but typically impugn the prosecutor's honesty only in the rarest circumstances. But in a string of federal cases across the country. Judges have openly chided DOJ for its overreach, for its failure to comply with at least the spirit.

of judicial orders and for its tendency to not quite fully tell the truth. One federal judge in Maryland lambasted prosecutors for their conduct in the Kilmar Abrego Garcia case. Quote, you have taken the presumption of regularity and you've destroyed it. In my view, a judge in Washington, D.C., flayed prosecutors for flouting his orders in an immigration case, characterizing the government's position as, quote, we don't care. We'll do what we want. Another D.C.-based judge noted pointedly.

Trust that has been earned over generations has been lost in weeks. A federal judge in Illinois determined that the government's portrayal of violence in Chicago was, quote, simply untrue. Trump presently faces precious little meaningful opposition to his agenda.

and to his excesses. The executive branch has largely been purged of objectors or even of those who faithfully do their job to the president's dismay. The Republican-controlled House and Senate provide no friction, while Democrats... flail helplessly and the supreme court generally though not always has gone trump's way on executive power one of the few remaining checks comes from the most humble of sources

the everyday civilians who get that dreaded notice in the mail and wind up serving on grand juries and trial juries. Other than voting, it's the most basic. populist exercise of American democracy. As long as the Justice Department continues to play politics and undermine its own credibility, don't expect the nullification trend to stop. As I learned years ago on the Gotti case, Sometimes the people have simply had enough. Thanks for listening, everyone. Stay safe and stay informed.

Support for this show comes from Odoo. Running a business is hard enough, so why make it harder with a dozen different apps that don't talk to each other? Introducing Odoo. It's the only business software you'll ever need. It's an all-in-one, fully integrated platform that makes your work easier. CRM, accounting, inventory, e-commerce, and more. And the best part? Odoo replaces multiple expensive platforms for a fraction of the cost.

That's why over thousands of businesses have made the switch. So why not you? Try Odoo for free at odoo.com.