The second trial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges, has resulted in a second mistrial.
At the end of their second full day of deliberations Wednesday, the jurors sent a note to the judge stating that another day of deliberations would be useless, the third time they reported they believed a unanimous verdict was impossible.
This time, Judge Donald Walter of the U.S. District Court for the Western District of Louisiana, sitting by designation, let them go.
He tentatively scheduled the third trial to begin on April 12.
The mistrial constitutes a serious defeat for the U.S. Attorney's Office for the Northern District of Illinois, which prosecuted the case in Brooklyn federal court.
Following the first mistrial in January, in which the threatened judges -- Judges Richard Posner, William Bauer and Frank Easterbrook of the 7th U.S. Circuit Court of Appeals -- did not appear as witnesses, a juror told reporters the jury deadlocked due to a dearth of testimony.
"The prosecution's case was so weak," the juror said. "He just bailed out."
This time, all three judges flew to New York and took the witness stand, though somewhat begrudgingly. Posner complained from the stand that he would rather be working.
Now, Chicago's U.S. Attorney, Patrick J. Fitzgerald, will have to decide whether to try Turner for a third time, and if so whether to ask the judges to appear again.
Asked as he left the courtroom whether the government would again try the case, the lead prosecutor, Assistant U.S. Attorney William Hogan said, "We're going to review it. I'd say it's highly likely."
An attorney for Turner called the mistrial a "victory."
"I think Chicago should be embarrassed," said Michael Orozco of Bailey & Orozco in Newark, N.J. "They put on three judges and they still couldn't get a conviction."
Judge Walter told Turner on Wednesday that his bail conditions, which bar him from using the Internet or talking to reporters, would remain in place.
"You must not do anything to get the press further involved in this case," the judge told Turner. "I don't want to move the case to Juneau."
Turner has long denounced Jews, blacks and homosexuals, among others, on his Internet radio show. He was arrested last June after posting blog entries stating that the three federal judges "deserve to be killed" for their decision upholding handgun bans in Chicago and Oak Park, Ill.
"Their blood will replenish the tree of liberty," Turner wrote. "A small price to pay to assure freedom for millions."
Turner also provided the names, work addresses, phone numbers and photos of the three judges, and promised to soon post their home addresses.
Federal prosecutors in Chicago charged Turner with threatening the judges, and the case was assigned to Judge Walter and removed to Brooklyn.
Turner's attorneys argued that their client was a "shock jock" whose postings were merely political hyperbole. They also emphasized Turner's former position as a confidential informant for the FBI, in which the government allegedly encouraged him to ratchet up his rhetoric to help ferret out violent white supremacists. The postings at issue in the present case, the defense said, were within the guidelines his former handlers had given him.
The second trial lasted four days, and was followed by 2 1/2 days of deliberations. Jurors seemed to be caught up on, among other things, the reasonable person standard, the legal standard by which a threat is measured, at one point asking for a definition of "reasonable person."
The judge told them to consider themselves reasonable persons.
FALLOUT WITH COUNSEL
Should the prosecution pursue a third trial, Turner will be represented by new counsel, the federal defender's office. During deliberations, Turner announced his intent to fire his attorneys once the deliberations ended, citing his recent bankruptcy and the need for "a pair of fresh eyes" on the case.
Throughout the week, the open conflict between Turner and his attorneys -- Orozco and Chicago solo practitioner Nishay Kumar Sanan -- became yet another subplot to the sensational case.
Although barred from talking to reporters, Turner complained loudly about his attorneys in elevators and hallways, saying they were overcharging him and bungling the case.
The two lawyers had been surprising choices for an ardent white supremacist.
Orozco, of Orozco & Bailey in Newark, was born and raised in Puerto Rico. Sanan, a Chicago defense attorney, is Indian.
Sanan is developing a specialty of sorts, defending white supremacists accused of posting threats on the Internet. In July 2007, he secured an acquittal in a case nearly identical to the present one, United States v. White.
"For a brown guy," Sanan said of his niche, "that's not bad."
In White, defendant William White, the purported leader of the American National Socialist Workers Party, was accused of encouraging his readers to harm a juror by posting the juror's name, address and photo on his Web site.
A Milwaukee federal judge, sitting in Chicago, dismissed the charges, finding that White's action fell short of soliciting violence.
Chicago federal prosecutors appealed that decision, and oral arguments were in January.
The three judge appellate panel that heard White included the star witness for the prosecution in the present case, Judge Posner.
Those arguments apparently made a bigger impression on Sanan, who had unsuccessfully sought Judge Posner's recusal, than on Judge Posner.
While cross-examining Posner in the present case, Sanan reminded the judge that they had met a month ago, when Sanan appeared before him.
"I don't remember," Posner said, "but if you say so."