Manafort’s Curious Defense: It Is Easy To Hang on A Hung Jury Strategy

ManafortBelow is my column in the Hill newspaper on the continuing jury deliberations in the trial of Paul Manafort in Alexandria, Virginia.  Defense counsel generally take heart in the passage of time as an indication that the jury is having difficulty in reaching a verdict. However, it can be deceiving. I took over a case in this same courthouse after a jury deliberated over a week and still convicted on all counts.

Here is the column:

“Overall, a good day for Mr. Manafort.” Those words of Kevin Downing, a defense lawyer for Paul Manafort, came at the end of the first day of jury deliberations this week. The sense of relief after the jury failed to bring in a quick conviction of all counts and then asked for a further definition of what constitutes “reasonable doubt” was enough for one of the defense team members to proclaim, “We’re still in the game!”

Never has such inertia prompted such excitement, but that is the reality of Manafort’s curious criminal defense. There is a very solid reason why the absence of bad news is good news for him. The prosecution brought in an array of witnesses, from Manafort’s accountant to his former close aide, Rick Gates, who presented a consistent and damning record of hidden accounts, shrinking income and an opulent lifestyle.

In response, the defense offered relatively little to knock down the hundreds of documents showing foreign accounts and unreported income. Instead, from the opening to closing statements, the defense trashed Gates and suggested, implausibly, that he was behind the elaborate misrepresentations and secret transactions. The defense succeeded in painting Gates as a true low life who cheated on his wife and stole money from Manafort. That was not particularly difficult.

The problem is that the prosecution did not have to make Gates look better than he is. They just needed to show that Manafort was worse. They succeeded in making Manafort look like a spendthrift gallivanting around the world in his $15,000 ostrich jacket while shifting money from 15 unreported foreign accounts. As his Ukrainian patron ultimately fled in disgrace, Manafort found himself with towering expenses and collapsing income. Moreover, as bad as Gates was, he was the man that Manafort wanted by his side during years of shady dealings and associations.

This was never a trial strategy for an acquittal. If Manafort was going to fight for acquittal, he would have put on a defense rather than resting at the conclusion of the prosecution’s case. He would have offered an alternative narrative. Indeed, proving Gates was a sleaze did not depart significantly from the government’s narrative. Gates appeared as a cooperating witness precisely because he admitted to engaging in crime.

Indeed, even Manafort’s accountant demanded immunity from prosecution due to her belief that her filings for her boss were criminal. Manafort needed to offer an explanation in which his own conduct and associations could be viewed in an innocent light. We will never know if he could have presented such a defense, since he not only refused to take the stand but also refused to put on defense witnesses.

The defense was a hung jury strategy combined with a rather obvious pardon strategy. Manafort’s best hope is that a few jurors will harbor doubts. All he needs is one holdout when the government must secure a unanimous verdict. That would mean he could be tried again, but a none decision can be the best decision when you are not seriously attacking the evidence. Of course, the problem is that it is easy for a defendant to hang by his own hung jury strategy. A jury can deadlock on some but not all counts, leaving Manafort bearing a decade of potential imprisonment.

Manafort clearly is also maintaining a pardon strategy. He repeatedly shut the door to cooperation with special counsel Robert Mueller when others, like Michael Cohen, are desperately seeking a deal. Even the trial judge remarked that this is an obvious effort by Mueller to turn Manafort against President Trump. Yet, Manafort has remained silent and uncooperative.

The pardon strategy became all the more plausible on Friday after the jury asked to suspend deliberations for the weekend. Trump commented on the trial on the White House lawn, declaring, “I think it’s a sad day for our country,” adding, “He happens to be a very good person. I think it’s very sad what they have done to Paul Manafort.” It was an unprecedented moment as a president trashed the prosecutors of his own administration. Then Manafort actually responded through Downing, who said that he “really appreciates the support of President Trump.”

It was a bizarre conversation in public between a defendant and the head of the government prosecuting him. Trump’s statement on the trial and on Manafort triggered the latest round of calls for impeachment. In Washington Monthly, David Atkins simply wrote, “That is a crime. It’s called jury tampering. The president has a legal obligation to refrain from commentary in an ongoing trial that directly impacts him, particularly from denouncing his own government’s case against the accused.”

It is actually not even an express legal obligation, though presidents have uniformly respected the legal process by refraining from such public statements. It is most certainly not jury tampering. First of all, the jury was already deliberating and ordered not to read or watch coverage of the case. How it can be jury tampering with a jury that is barred from hearing the statement is a mystery. Second, even if the jury violated court orders and listened to the words, it is not jury tampering to criticize the special counsel’s prosecutions. Thus, it is not true that “the president just committed another impeachable crime today,” as Atkins state. Yet, that does not make the president’s comments appropriate or accurate.

It is true that a conviction would say little about the merits of the special counsel investigation, since the allegations against Manafort are entirely unrelated to the presidential campaign. It would, however, say a great deal about Manafort. Just because these crimes are unrelated to the election does not mean that he is not a criminal. Frankly, Manafort did not come across as a “good person” in this trial, as the defense offered very little to suggest either good character or good excuse in his dealings. That is why a conviction in the coming week would clearly be a sad day for Manafort, but not necessarily a sad day for the country.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

120 thoughts on “Manafort’s Curious Defense: It Is Easy To Hang on A Hung Jury Strategy”

  1. I’ve checked some other high-profile political trials. The juries in those cases deliberated between 2 hours and 5.5 hours per count, with longer deliberations inversely associated with the % of counts on which the government managed a guilty verdict. No clue how representative that is of complicated jury trials.

  2. Mueller’s minions v. Paul Manafort. What Henry Kissinger said about the Iran-Iraq War applies: too bad they both can’t lose. It’s indicative of the moderator’s unrelenting defense of the legal profession’s prerogatives (which include the prerogative of federal prosecutors to ruin the life of anyone they care to) that this grossly manifest aspect of the case goes unmentioned.

      1. You have to make certain assumptions first, which partisan Democrats do because they’re incapable of being fair to anyone.

      2. Mr. Gates and Mr. Manafort ruined their own lives.

        That makes for a good Step One in a Rehab 12 Step Program. And of course the old Scooby Doo line that they would have gotten away with it if it wasn’t for those meddling Clintons/DNC/FBI/SC/MSM, has merit.

        The reality is Manafort and Gates flew into the FBI’s FISA enable and undeclared Trump Territory No Fly Zone and got shot down.

        1. Many, many federal defendants are initially noticed by the feds when they interact with others who are already on the feds’ radar screen. Although “common sense” isn’t really that common, the truism that “when you lay down with dogs, you gonna get fleas” is one of the exceptions. Thus, because the day glo bozo has surrounded himself with others who are also unsavory, unethical, immoral, and criminogenic, there’s a virtual cornucopia of fish-in-a-barrel defendants for both the feds and the pertinent states. I suspect you are already aware of this, but will continue to enable the day glo bozo because “he’s an old white guy who keeps the darkies in line” or some such pocket-traitor rationalization.

          this is to olly

    1. Haha! This is your update on both sides do it. Gong, gong, gong.
      On one side you have a convicted felon represented by multiple highly paid counsel, with the POTUS suggesting the possiblity of a pardon, and a conservative jurist repeatedly insulting the prosecution and prohibiting them from publishing exhibits to a jury of 12 ordinary citizens.
      Manafort did the wrong thing–a lot of wrong things. Mueller and his team did the right thing. Try to understand that. It’s how are system is supposed to work.

  3. It was a bizarre conversation in public between a defendant and the head of the government prosecuting him. Trump’s statement on the trial and on Manafort triggered the latest round of calls for impeachment. In Washington Monthly, David Atkins simply wrote, “That is a crime. It’s called jury tampering. The president has a legal obligation to refrain from commentary in an ongoing trial that directly impacts him, particularly from denouncing his own government’s case against the accused.”

    Another tedious complaint that somebody went off the script lawyers like to use.

    The local elementary school in my area was ca. 1972 fond of deputizing youngsters to nag students about which bench they sat on when and about the precise path they took from the school door to the bus stops. All in the name of ‘safety’. The vice principal styled herself ‘Dr. Selden’, and as you can imagine she had helmet hair of a sort common in an era when hairdressers and their customers got the idea in their heads that women’s hair was sculpture and the unattractive eyewear which preceded the super-unattractive eyewear of the 1970s. Her deputies all had to wear electric orange sashes with a ‘Safety Guard’ lapel button appended. How much you wanna bet Prof. Turley volunteered for this duty in 1971?

    He repeatedly shut the door to cooperation with special counsel Robert Mueller when others, like Michael Cohen, are desperately seeking a deal.

    Rosenstein assigned that case to holdovers in the U.S. Attorney’s office in Manhattan, insisting the U.S. Attorney himself recuse. I know, distinction without a difference.

  4. The “deliberations” thus far, have not been all that long. It was a long weekend and they were all at home. While at home they were listening to fake news on tv or radio or internet. In regard to all the “documents”. They may not examine them all that much. Once you determine that you are looking at a pile of dog turds you avoid looking or smelling.
    The notion that the defense counsel was wrong in not putting on pieces of evidence or putting on witnesses is also wrong. The strategy was correct.
    In a criminal trial the jury must find the victim (the defendant) guilty on each element of the offense beyond a reasonable doubt. It is reasonable to have doubt in the testimony. It is reasonable to have doubt in the so called documents. It is even more important to take into consideration how the jury feels about the prosecutors and the nature of the case.
    I have my doubts. I hope the jury does too. Mule er, will rot in hell. He pronounces his last name like he is a “mull” and not a “mule”. I have my doubts.

    1. Any time you decide to try a case and you lose, something was wrong with your strategy. (Unless as Turley suggests, this is a pardon play.)

  5. Given the number of counts, I am not surprised they are taking this long. I am surprised at the Lame Stream Media trying to doxx the jury though. Given how fast we see that Antifa can respond to a bat signal, the judge responded correctly and I hope he refuses to give the Lame Stream Media their names and addresses.

    1. Trump and Manafort’s lawyer attempted to influence the jury with their public comments while the jury is deliberating.

      1. fried – my understanding is that both the prosecution and the defense broke the agreement to keep quiet about selective prosecution.

      2. Trump and Manafort’s lawyer attempted to influence the jury with their public comments while the jury is deliberating.

        Oh no, not the whole influencing with public comments strategy. Unless you’ve been living under a rock or bridge for the last 2 years, it’s been nothing but an influencing strategy from both sides.

        I could argue that If the jury members became aware only now that President Trump might pardon Manafort, then if I was already anti-Trump, then I would be pissed I had to go through all this for nothing. I’d wish I could vote more than once like I did for Clinton in 2016. If I was pro-Trump, I’d feel relieved that I did not have to fear getting doxxed by the media. I could vote guilty knowing I’d get the same result. Or they just might not care either way and vote true to the jury instructions and their conscience.

  6. Ummm…You failed to mention the media suing to get names/addresses of jurors while they are still deliberating. That’s just fine, huh?

      1. Oops! Registration wall. Sorry. (I got to read the article the first time I went there before I posted the link)

  7. White House Counsel Don McGahn could be facing legal jeopardy depending upon what McGahn knew about the Trump Tower meeting and when he knew it. McGahn could also face legal jeopardy depending upon what he may or may not have done with respect to the foreign nationals from Cambridge Analytica whom the Trump campaign employed. McGahn could also face legal jeopardy for the various roles that Roger Stone played in the 2016 election.

    McGahn’s specific area of expertise is federal election law. McGahn served as a Commissioner for the Federal Election Commission from 2008 through 2013. In 2011, McGahn shielded both Trump and Stone from an FEC complaint filed against an organization operated by Roger Stone and Michael D. Cohen known as Should Trump Run that had been accused of funneling money from the Trump Organization to Trump’s presidential exploratory committee for the 2012 election cycle.

    Mueller has interviewed Don McGahn three times, already. The most recent interview of McGahn coincides with Mueller’s recent focus on investigating Roger Stone. It’s beginning to look as though Mueller has more cards in his hand than anyone had previously suspected. Somebody remind me: When was the last time a White House Counsel, not merely cooperated with, but became a cooperating witness for an ongoing investigation of a President?

  8. Whatever the outcome of the jury deliberation, the Manafort trial is the main event of the Muler Investigation. Muler harpooned one big fish who was kind of connected with Trump (3 months campaign manager before getting fired for Ukraine dirty business). As part of this WWE style main event, Muler might be able to get a conviction on some of the charges and if not he gets some sort of moral victory for trying to bring a shady character to justice (even if outside the spirit of the scope of investigation). If convicted, Trump will obviously pardon fellow alpha male Manafort touting witch hunt (will also get to cite witch if hung jury). And that is it for the Muler investigation. Muler won’t dare to get closer to president than this as he knows that would entail mutually assured destruction for the two men. Once the Manafort trial is over, the party will be over.

    1. There’s another Manafort trial on the docket for The District of Columbia. We are not there yet, Tab. Take a nap. Or count the cows going by the car windows as we keep on rolling along down the highway.

      My best guess is that the party doesn’t really get started until March of 2019–ballpark.

      1. WWE Muler Production starts and ends with the Manafort character. These shows help to placate lefty loons and justify the million$ spent.

  9. The longer Manafort jury is out, the more realistic a hung jury becomes – but here is why it is by no means a sure thing: Interpersonal dynamics. Often, a jury’s questions to the trial judge, including the re-reading of a key jury instruction, indicates that one group of jurors is trying to persuade one or more jurors on the other side of an issue to see the folly of their position.

    Assuming that a critical mass of jurors has dug in for an acquittal, it is very difficult for one or two jurors to stand up to intense pressure from the other 10 or 11 for very long. It takes a strong, independent personality to hang a jury.

    Among the factors that militate in favor of hung jury in the Manafort case is first and foremost the political aspect. There are bound to be 3 or 4 Trump voters on that jury, and the political discourse has become very hardened and polemic since the 2016 election. Jurors are likely to have arrived for jury service fully aware of the CNN vs FOX News talking points about Mueller, the Russia Investigation, and the Paul Manafort Case – including Judge Ellis’ remarks at a pretrial hearing that “the special prosecutor does not care whether Manafort committed tax fraud, they just want him to sing about the President. But the trouble is those that sing, sometimes compose.”

    Second, there are six women on the jury. Women hate few things more that cheating husbands. The women on the jury are unlikely to trust or believe anything Gates said at trial. In addition, Mr. Manafort will not lose points with those women for staying with his first wife, providing her a good lifestyle, or for the open affection that he has been displaying to her during the trial.

    Third, the Judge’s comments – and answers to jury questions – are going to backstop some of the pro acquittal voices on the jury.

    Fourth, there is no trial judge or appellate judge in the world that would be willing to cull a several thousand page factual record like the document dump the prosecution delivered into the jury room, 480 +/- exhibits – some of them lengthy – without so much as an index or a key to what supports what. This is not going to endear the jury to the prosecution.

    While I agree that a long deliberation is no guarantee (and lets face it, they may already have convicted Manafort on all the tax counts, and may hang on the bank fraud and the reporting counts), the longer they are out, the more likely a hung jury gets.

    1. I think Alexandria was one of those 90%+ Hillary places. That would seem to rule out an acquittal.

      And yes, with 18 counts you’re likely to get a split.

      Prof. Turley criticizes the hung jury strategy but in practical terms that was the only viable way for the defense to go. You have to deal with reality, you can’t make it.

      1. JMJR – I am thinking conviction on some, acquittal on some. Although they may have a hold out juror on all counts.

          1. We’ve met (at the Hall of Justice). I was a client of Reyes & Regan back in the day. It was Mike who handled our case. He might or might not remember me. Don’t think we’ve crossed paths since 1994 or thereabouts.

          2. While we’re at it, is that a recent picture of you? You’ve put on 1 year to my 2 since 1990.

  10. Here is my concern. If Manafort was Hillary, IMO there would be a hung jury for sure. Because there would be at least one Democratic Party Partisan who would rather die and go to Hell than convict her.

    Republicans do not seem to be so rabidly win-at-any-cost partisan as Democrats, so there is a chance that will happen, but not as likely.

    As far as innocence or guilt, my GUESS is Manafort is guilty of most it, just like there are thousands of others in Washington, NYC, etc. who are guilty of the same sort of stuff. I bet the Podestas would not hold up very well, or Sidney Blumenthal, or Bill and Hillary’s slush fund foundation, or any of the other parasites and swamp denizens of the area.

    BUT, Manafort has been singled out for a political reason.

    Squeeky Fromm
    Girl Reporter

  11. Hopefully if there is a conviction, Mr. Mueller can declare victory, have a face saving way to end this investigation, and assume a strong position to justify all the billable hours he charged the government.

    1. I don’t like sacrificial lambs in show trials. There are more important considerations than a conviction. The law recognizes that in other contexts (Miranda, Priest-Penitent, Family privilege) why not here?

    2. I think you need to consider the verdict, the Cohen plea and confer with your employer. Mueller has more victories to come.

  12. The jury verdict takes awhile…..Recap

    Paul Manafort has been charged on 18 total counts. They include bank fraud, bank fraud conspiracy, false income tax returns, and failure to report foreign bank or financial assets.

    Most juries are very meticulous. Bank fraud and tax fraud are complex statutes and involve unfamiliar concepts. They are not in the everyday experience of jurors.

    Since Manafort was charged with counts of multiple charges, it increases the mathematical likelihood of a conviction on at least some counts.

  13. Given the antics of the prosecution the first thing a responsible jury would check is the validity of each of IBK’s pile of stuff. Since most of the previous pile of stuff was obtained by illegal means after the FBI poisoned the tree. They could then gauge what was left – if anything .

    They could also consider how any future court since this will be appealed with certainty and how they might explain a conviction on tainted evidence. Not sure how it works in your country but in ours it’s an important and required issue.

    If they do not it’s grounds for dismissal at the least retrial at the worst.

    His former partner apparently failed to produce any evidence other than papers he himself produced and did not provide any expert witnesses to validate. So that pile of stuff is also suspicious and must one by one provide ‘beyond a reasonable doubt.’

    Which is the sum of all things to look at as nothing else applies.

    But there is that lingering why? Why? did Meuller choose to try these cases instead of a hand off when he is supposed to be so laser focused Russia, Collusion, Presidential Candidate of which their were two.;

    A good citizen would, despite the Judges admonishing request to disregard his rants and especially one familiar with the Fully Informed Jury Concept which our nation started with perhaps think .. well no problem seeing what the judge thought of the prosecution. And the Jury does not have to explain their decision.

    A common untrained citizen may still well wonder why the other presidential candidate is not being investigated and charged and then translate that to beyond a reasonable doubt conclusion.

    It only takes one juror to think. How much money am I losing from work or from my business for this nonsense and for less money than cab or bus or train fare.

    Or one to say If I’m the one to vote NO there’s a book deal in it to make up the loss.

    And once this house of cards built on a carefully arranged sequence of trials and testimony been toppled …..

    It only takes one to day if their case was so weak they had to resort to all this ……

    And it only takes one Not Guilty for an acquittal.

    12 are required out of 12. for conviction.

    How many are hoping to be the ONE..After all book deals are ….more common than most other ways of evading ones sworn duty. And this one is a no brainer.

    1. Sorry “counselor.” One NG juror only yields a mistrial and a do-over. The sad part from your position is that you can’t even sue hannity for malpractice, as he’s not a lawyer, nor does he play one on TV.

      this is to “hannity won’t even return my tweets” mikey

      1. You know, it’s always put this way, but it works the same way in reverse: you can get 11 for acquittal and a lone holdout can make everyone do it again. “Only takes one” cuts both ways, but somehow people think of it only in one direction. A subtle bias, methinks.

    1. Issac, i’m sure you have something better to do than to pester us with your non-relevant comments. Please go do it and leave the adults alone.

  14. Of course it’s improper for the president to comment… In fact it was about as improper as president Obama saying “if I had a son, he look like Trayvon”, or telling us that Hillary Clinton was obviously innocent by declaring that America’s national security was not endangered by her behavior.

    1. Wally, I was thinking the same thing. And Obama was both an attorney and former constitutional law professor. Trump is a real estate developer. Obama knew what he was doing; that he was clearly intending to poison the pool of potential jurors. Trump was just running his mouth.

      1. Obama practiced a mix of labor law and landlord-tenant law. Prorating part time and seasonal work, he was employed in law offices for about three years.

        As for his career as an academic, see Wm. Dyer (“Beldar”). Dyer offers that constitutional law can be taught well, but that it’s the easiest subdiscipline for the instructor to offer fake expertise. He said he’d have been much more impressed had Obama taught commercial law or tax law. Also, Obama taught boutique electives (“___ & the Law”), not anything essential to cadging a law degree. He never published one academic paper, either.

  15. The jury had to ask the judge to define reasonable doubt? They will use the JUDGE’s version of reasonable doubt? They are the JURY for God sakes. Aren’t THEY allowed to determine for themselves what reasonable doubt means to them? IDK – maybe they tried but couldn’t agree on a definition. But they must have had some or they wouldn’t have found it necessary to ask. Maybe they should have defined it as such — If you need to ask for the definition of reasonable doubt, then you’ve got reasonable doubt. Otherwise, why would you need to ask?

  16. There must be at least one actual, conservative, constitutional, God-loving American on that jury, who has watched Fox News and seen the entire 7th Floor being decimated as the corruption and stench are cleared out.

    1. In Fairfax Count, VA (where the case is being tried and the jury pool is being drawn from) there were 300,000 votes for Hillary vs 150,000 votes for Trump. Therefore, odds are that there are 2-3 Trump voters on that jury.

      1. Alexandria is a stand-alone municipality not a part of either Fairfax or Arlington County.

  17. ““Show me the man, and I’ll show you the crime.””

    – Lavrentiy Beria, Director of Stalin’s Secret Police

    The “show trial” persecution of Manafort is entirely political and he must be pardoned. Most of Washington D.C. could be charged with similar crimes. Whatever happened to that paragon of virtue, Tony Podesta? The special counsel law should be revised to include an open-ended investigation of every elected official when an open-ended investigation of one elected official is initiated. Mueller, the Head of the Secret Police of the Obama Coup D’etat in America, cannot find any evidence of Russian “collusion” by President Trump so he changed the title of his feature presentation from “Russian Collusion” to “Russian Meddling,” and he inanely persecutes peripheral actors as further acts of “malicious prosecution.” At some point, Congress must wield its superior and decisive power to impeach and refer-for-prosecution against the subversion of the “deep state” as the Obama Coup D’etat in America which is simply attempting to overturn a legal and proper election.

    1. This is the main event of Muler investigation. It will go no further than this as Muler is aware of mutually assured destruction. Manafort trial is WWE style event and both sides will look to score points after conclusion.

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