After some surprising twists Monday in the corruption trial of U.S. Sen. Bob Menendez, D-New Jersey, some trial watchers are not optimistic about whether jurors will be able to reach a unanimous verdict.
First, four jurors and three alternates raised their hands when U.S. District Judge William Walls of the District of New Jersey asked if they had heard or read comments in the media by a juror who was excused for a vacation on Nov. 9, Evelyn Arroyo-Maultsby.
Later in the day, the jury sent the judge a note saying they were hopelessly deadlocked. Menendez’s lawyer, Abbe Lowell, asked for a mistrial. Walls sent the jury home early and instructed them to try again on Tuesday.
The combination of factors, coming nine weeks into the corruption trial of Menendez and co-defendant Salomon Melgen, makes the chance of a mistrial appear more likely, said some trial observers.
“I’m not sure if the ship can be righted. It’s a very strange circumstance, that, perhaps, could have been avoided with instructions to the departing juror,” said Mala Harker, a former federal prosecutor turned white-collar defense lawyer at Friedman Kaplan Seiler & Adelman in Newark.
On Monday, Walls seated an alternate to take the place of Arroyo-Maultsby, who was excused because of vacation plans. The jury was instructed to begin deliberating from square one with the new juror.
“There is a chance that they will, after some hard work putting their heads together, that they can come to a meeting of the minds,” said Harker. “The problem, as I see it, is the potential taint issue—the dismissed juror, making statements that were widely reported in the media. That in the ether has influenced the course of things as they are now going forward with the new jury—that is the most unusual thing that has happened.”
“I think [the departing juror’s comments are] being felt in making the deliberation more complicated than they might otherwise have been. It’s a tricky case. I think that oddity in the proceedings really does complicate things,” Harker said.
Walls interviewed those jurors and alternates who were exposed to the departing juror’s comments but concluded that the issue would not infect the proceedings.
“It certainly seems headed for a mistrial at this point,” said Kevin Marino of Marino, Tortorella & Boyle in Chatham, another former federal prosecutor.
“I think it’s not surprising that it would be a hung jury,” Marino said. “I think the government had a fairly unusual theory of prosecution, the stream of benefits theory, with the constraints imposed by McDonnell.”
He was referring to McDonnell v. United States, a 2016 Supreme Court ruling that narrowed the definition of “official acts” under federal bribery laws.
The excused juror’s comments in the media were “highly improper” and “only contribute to the confusion here,” Marino said. “I don’t know how that could stand on appeal, once the jury says it has heard media accounts. That’s admitting to violating your oath.”
The jurors’ note telling the judge they are deadlocked does not preclude at least a partial verdict, noted Robert Mintz, a former federal prosecutor at McCarter & English in Newark.
“I’ve seen juries who sent out similar notes and ultimately were able to reach a unanimous verdict on at least some of the counts. But it certainly may be an indication that this jury will be unable to reach a verdict and the judge will have to declare a mistrial,” Mintz said.
Mintz didn’t see the exposure to the excused juror’s comments problematic because she probably made similar statements in the jury room. Judges typically tell a jury to continue deliberating after hearing for the first time that jurors are deadlocked, but if the jury reports being deadlocked a second time, it’s more likely that a mistrial will be declared, Mintz said.
Justin Loughry, a criminal defense lawyer at Loughry and Lindsay in Camden, suggested that a divided jury might be an indication of weakness in the prosecution’s case.
When asked if the trial could get back on track, Loughry said, “Maybe it is on track. Lots of people talk about what happens when cases can’t be resolved by juries. Sometimes that’s a sign of the system functioning.”