Editor's Note: John Rowland was convicted today after scarcely any deliberations at all.
Why don’t jurors get a pause button, or some other instrument, so that they can stop the government mid-sentence when a prosecutor says something so craven, so stupid, so misguided and even disingenuous as to warrant scorn? If such a device existed, it would have broken on Thursday, when the government gave its closing argument in the case of United States of America v. John G. Rowland.
Prosecutor Christopher Mattei was preaching to a packed house in the New Haven courtroom where Rowland stands trial.
“This is a case that goes to the very heart of the most basic right we have in America,” Mattei said. “The right to vote, the right to make informed decisions about who is going to represent us.”
No it doesn’t, Chris. The case was about a venal former governor trying to make a buck helping a rich man’s wife find her way into Congress. He did so in apparent violation of a federal law requiring campaigns to report whom they pay as consultants.
Rowland took $35,000 in 2012, ostensibly to work for Richard Foley’s nursing home chain as a consultant. His real job, according to the government, was advising Lisa Wilson-Foley, Richard’s wife, on how to run for Congress in the 5th Congressional District, Rowland’s old stomping ground. The payments were not reported on a Federal Elections Commission reporting form.
For this, the government charges Rowland with a felony, seeking, no doubt to return him to prison.
Who makes decisions on whom to prosecute in the United States Attorney’s Office? The country is falling apart at the seams, and we waste precious resources on this prosecution, all in the name of good government?
“Every American is entitled to certain information,” Mattei continued. “Who’s paying a candidate, who is the candidate beholden to?”
No we aren’t, Chris, and you know this. Millions of dollars are spent on campaigns every year, and we haven’t a clue where most of the money comes from. The law protects the identity of donors when their funds are funneled through nonprofit advocacy groups on the right and the left.
I know and respect Attorney Mattei. He is an intelligent man, a straight shooter, an honorable prosecutor. What could possess him to utter such nonsense?
We have no absolute right to know who backs a candidate. We never learn to whom a candidate is beholden. Dark money governs politics. Tidal waves of cash flow into the coffers of non-profit organizations, front organizations for big business and big labor, to be used to malign and attack candidates for public office. While the groups are required to report how much they spend trying to influence elections, they aren’t required to report where the money comes from.
An estimated $69 million in dark money was spent on the presidential elections in 2008, according to OpenSecrets.org; as of this week almost that much has already been spent in this year’s congressional elections alone. The electoral process is drowning in secret money, and we the people, the rhetorical sovereigns of this, the best of all possible worlds, can only guess who contributed it.
Sheldon Adelson, for example, an octogenarian Las Vegas casino owner, reportedly shelled out $150 million to candidates, PACs, super-PACs, and dark-money nonprofits in 2012. He also shuffled a bundle of cash in Mitt Romney’s direction.
On the left, a group called the Democracy Alliance, spends millions to attack right-wingers, relying on funds contributed by the likes of George Soros.
Big money plays politics like a slot machine, feeding coins into the electoral process hoping for a jackpot in the form of candidates beholden to it. What about the public’s right to know who is really bankrolling the candidates? Huh, Chris?
Instead of meaningful electoral reform, we get penny ante prosecutions like that of John Rowland. Yes, the former governor is a convicted felon, having spent 10 months in prison for his financial misconduct as governor. Yes, the payments to him most likely should have been reported. But, as Diane Keaton once famously said to Woody Allen, “Lah-Dee-Dah.”
“Mr. Rowland sought to deprive voters of … information. He was going to be paid to steer that candidate right into the United States government and he didn’t want anyone to know it,” Mattei said.
Wake up, Chris. It happens all the time.
Once upon a time, jurors had the power to nullify the law. They could consider the evidence put before them and decide what was or was not proven. They could then listen to the law as it was given to them by the court. Then they could do justice, deciding whether the law’s application to the facts resulted in justice, a sense of right relations between members of the community. The practice, known as jury nullification, gave jurors the right to chastise a government that had misplaced priorities. Jury nullification is now forbidden by the courts.
A nullifying jury might well consider the Rowland case and say, “So what? Yes, this is a technical violation of the law, but do we really care at time in which the law seems to fail us?” Why not chastise the government and say, in effect, don’t complain about the mote in my brother’s eye when you are blind to a crumbling infrastructure, a decimated middle class, a nation bursting with prisons but not with opportunity?
The Rowland prosecution seems yet another example of the notion that our government is a feckless tool of powerful interests. Bankers too big to fail engage in fraud and then are bailed out at our expense — all for our own good, we are told. In the meantime, loan officers and closing attorneys — mere foot soldiers in the mortgage industry — are sent to prison.
Rowland is a down-and-out pol trying to make a fast buck. Let’s prosecute him. He’s an easy target. In the meantime, we’ll turn a blind eye to the dark money destroying the electoral process.
A nullifying jury that cared about this country might say “Not Guilty” in the Rowland case, and then challenge the likes of Mr. Mattei to use their ample talents to do something meaningful with taxpayer dollars.
During the past year, I've been surprised by the number of times jurors have requested read backs of testimony they just heard only a few days earlier in criminal cases. In some instances, it seems to take almost as long to listen to the testimony again as it did to try the case in the first instance.
I suspect that is because, in state criminal courts, we do not permit opening statements. As a result, jurors have no idea what is important once the evidence begins.
A better, more efficient, criminal justice system would permit opening statements. What would be the harm in letting jurors know what the parties think is significant about the performance to come?
There is a tendency in the courts to marginalize the role of trial lawyers. If it is the judge's role to instruct on the law, and the jury's province to find facts, then what, really, is there left for lawyers to do? We permit closing arguments, but just barely—you have to beg for more than an hour, and permission to speak for more than the allotted time is rarely granted. In federal court, even an hour is too much to ask of some judges. Gone are the days of long-winded orators whose words might make a difference.
But refusing parties the right to make an opening statement does not avoid the risk of juror confusion; it contributes to it.
Appellate courts remind us time and again that a properly instructed jury is presumed to follow the law. What would be the harm in permitting the lawyers trying the case to give the jury a road map?
There's always the danger, of course, the lawyers will mislead the jury, or—as has happened to me—the jury will conclude it doesn't like either lawyer's theory and it decides the case on some grounds independent of what the lawyers argued. We trust juries to be the conscience of a community for a reason: Their collective wisdom and multiple points of view are safeguards against easily being misled by crafty counsel. Good lawyers know well the importance of not blowing their credibility by making promises they can't deliver on.
There are anomalies; there always are. Consider Jose Baez's remarkable opening statement in the Casey Anthony case. Not only did he promise evidence he did not deliver, there is good reason to wonder whether he ever seriously thought he could prove what he all but asserted: Casey lied about her daughter being abducted by a nanny when, in fact, her daughter had drowned in the family swimming pool. She lied, he told the jury, because she learned to do so at the hands of her sexually abusive father. The message was clear: The father bore watching.
It's not clear what evidence, if any, attorney Baez had to support these claims. Legal ethics experts have been tongue-clucking since Anthony's acquittal about whether Baez crossed a line, making inflammatory suggestions he could not support with evidence.
But unusual verdicts are part and parcel of the criminal justice system. It's almost pointless to speculate about how juries decide cases, regardless of the rules of procedure followed in a given jurisdiction.
Non-Connecticut lawyers are generally shocked by two things about our criminal justice system: First, our practice of individual, sequestered voir dire; and, second, the lack of opening statements.
The trial lawyers lobby opposes changing jury selection methods. Perhaps they will get behind a push for permitting opening statements. Permitting them might just improve the efficiency of the process.