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A panel of federal appeals judges last week sat puzzled as they considered U.S. District Judge J. Owen Forrester’s handling of a complex racketeering and drug-conspiracy trial in 2000. The panel from the 11th U.S. Circuit Court of Appeals spent much of the 30-minute oral argument trying to understand Forrester’s decision to grant a “partial mistrial” in the case. Forrester threw out two subparts of a four-count indictment after the prosecutor’s examination of a witness revealed that one of the three defendants had pleaded guilty to an unrelated murder, a fact that Forrester declared inherently prejudiced the jury. That defendant, Howard William Harriston III, was the only defendant found guilty of any of the racketeering and drug allegations. A teen-ager at the time of the alleged conspiracies, Harriston contended he played a minor role in a coast-to-coast drug-dealing operation in which the government implicated 12 others. Harriston’s court-appointed trial and appellate lawyer, James W. Howard of Tucker, Ga., argued on Thursday that Forrester, of the Northern District of Georgia, should have granted a mistrial on all the counts because the information about Harriston’s murder conviction prejudiced the whole trial, not just parts. The panel — Judge Frank M. Hull and Senior Judge Peter T. Fay of the 11th Circuit, plus Senior Judge John R. Gibson of the 8th Circuit — sounded sympathetic to Howard’s pleas. “I’ve never seen a partial mistrial,” said Hull, who from 1994 until 1997 was a colleague of Forrester’s on the federal trial court. “It is just very peculiar to draw those lines.” Howard noted that in granting only a partial mistrial, Forrester expressed his concern that throwing out the whole case could waste two weeks of the court’s and the jury’s time. “In other words,” Howard wrote in his brief, “the district court improperly considered judicial economy instead of ‘manifest necessity,’ ” a standard by which courts are to decide mistrial motions. U.S. v. Harrison, No. 01-12416-EE (11th Cir., argued Aug. 29, 2002). TWO 20-YEAR SENTENCES Richard M. Langway, the Assistant U.S. Attorney who tried the case, appeared at the 11th Circuit to preserve the government’s convictions and the two consecutive, 20-year sentences Forrester imposed on Harriston. Langway quickly had to set his presentation aside to field questions from the panel, especially about the partial mistrial. “Let me just tell you, speaking for myself, it’s bizarre,” said Hull. “Judge Forrester isn’t one to quickly grant a mistrial. We all know that.” Forrester was upset about the murder revelation. According to a court brief, he told Langway, with the jury excused, “In all my life in the criminal justice system, I have never seen a more ill-advised move.” Given how bad Forrester thought the murder revelation was, Hull asked when anyone could get a mistrial, if not under those circumstances? Langway responded that Forrester had instructed the jury to ignore the revelation. Given that the jury acquitted Harriston on two counts, Langway added, the jury must not have been affected by the revelation. But Fay suggested that the jury could “have decided [Harriston] is a bad dude,” so they made sure to convict him on some charges. “You never really know what is going to happen” when prejudice is introduced into a trial, Fay added. JUDGE DRESSED DOWN LAWYER Later, Fay focused on Forrester’s dressing down of Howard at trial, another basis of Harriston’s appeal. The incident occurred when Howard was cross-examining a police officer who said he remembered that Harriston had incriminated himself in a conversation with police. Howard, who said he planned to bring up another police officer who would refute the first officer, suggested that the first officer made up the story to help the prosecution. Forrester, considered one of the gruffest judges on the Atlanta federal trial bench, interrupted Howard and asked whether he was accusing the prosecutor of making up the evidence. “I have accused nobody of anything,” Howard said. “I’ve only asked questions.” With the jury watching, Forrester then told Howard, “You either apologize to the prosecutor and state that you had no intention of making that or I will excuse the jury and we will have a hearing right now to see if you have any basis in fact to make an accusation against an officer of the court, an officer of the United States. Those are your choices.” Howard sidestepped the issue without apologizing, responding, “I have no further questions.” In his brief, Howard argued that Forrester’s “attack on defense counsel and demand for an apology were completely unjustified,” because Forrester already knew from a conference the factual basis of Howard’s questions. WITNESS ‘UNFAIRLY BOLSTERED’ “Moreover, the judge’s comments unfairly bolstered the Government’s witness,” negated Howard’s impeachment of the first officer, “and disparaged the integrity and credibility of Harriston’s defense counsel in the presence of the jury,” Howard added. Langway responded in the government’s brief that Forrester was warranted to correct what the judge thought was an “impropriety” by Howard. “Here, it is reasonable to believe that the jury understood the proper meaning of the trial judge’s statements, and that the jury would not have understood the judge’s comments to evidence the court’s belief in the testimony of the government’s witness from the court’s remarks to counsel,” Langway wrote. He added that the brief statement by Forrester during a lengthy trial “does not support a conclusion that the court was unfairly critical of counsel or that the court did not remain impartial.” Forrester also instructed the jury at the end of the case to form no opinions based on his remarks to counsel, Langway concluded. At the argument, Langway reiterated that Forrester’s comments occurred in the larger context of a long trial. Fay remarked, in polite understatement, that Forrester’s criticisms of Howard “weren’t terms of endearment.” Langway asserted that Forrester treated both sides equally. “Equally bad?” asked Fay. ‘YOUNG GUN’ NICKNAME Langway responded that Forrester was even-handed, criticizing both lawyers when it was warranted, quite possibly recalling when Forrester scolded him for the murder revelation. Langway appeared to win a convert to the government’s side when the panel reviewed Harriston’s claim that Forrester should have granted Harriston’s request to remove from the indictment an alias attributed to Harriston. The indictment said Harriston was also known as “Young Gun,” a moniker Howard said was prejudicial and unsupported by the evidence. “That should have been granted,” said Hull, noting that no one ever said anything at trial to show Harriston was ever called by that name. Langway said that the government had evidence it didn’t present that showed Harriston was called “Young Gun,” but Fay dismissed the idea that the judges should consider evidence that wasn’t in the record. Langway added, however, that Howard should have renewed his objection to the alias at the end of the trial. “That may be a good point,” said Hull. Gibson said when the jury went out to consider their verdict, the name Young Gun was still there, and that only an alias such as “killer” would have been worse. Fay asked, asserting he was trying to be neutral, why the government didn’t remove the alias voluntarily if there was no evidence in the record supporting such a prejudicial name. Langway said simply, “I didn’t do it, your Honor.” Resting her chin on her hand, Hull said, “You might want to do it so you don’t have to argue it on appeal.” When Howard returned for rebuttal, he tried to explain why he failed to renew his pretrial objection to the name Young Gun. “Perhaps I was remiss in not bringing it up again,” he conceded. “But when Judge Forrester ruled, you’re kind of reluctant to ask him to rule again.”

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