In response to Michael Putney’s column on jury verdicts

 

The Wednesday, August 20, 2014 edition of the Miami Herald contains a column by Michael Putney entitled When a jury finds no smoking gun. Here’s my response:

In a nutshell, Mr. Putney asserts that the jurors consistently render incorrect verdicts in federal white collar crime cases involving politicians when they render Not Guilty verdicts. He suggests that short of a smoking gun the jurors are not intelligent enough to vote to convict. This position is not only dead wrong, it is insulting to our citizens and inconsistent with our system of justice.

Mr. Putney does not like the result of a few recent trials so he claims that the juries of today are not a jury of our peers. This type of thinking is the same type of logic that leads us to make school standardized tests easier when our children do not score well instead of teaching our children better. The result is that we have a lot more Americans who pass the test knowing less. In the long run, Americans that used to rank amongst the most educated in the world are now woefully behind many other countries.

The problem is not our juries. The problem is the type of case the United States Attorney’s Office is willing to take to trial. Remember over 90% of all indictments in Federal court result in a conviction. The overwhelming majority of these cases do not go to trial but are resolved by plea agreements. Many of our judges are jaded by these numbers and are skeptical when a defendant maintains his or her innocence. No person facing trial on criminal charges would be making a wise decision to waive the right to a jury trial. Judges, and apparently news reporters like Mr. Putney, are willing to convict on a preponderance of the evidence instead of requiring the government to prove it charges beyond a reasonable doubt. Our forefathers were wise to make a trial by a jury of your peers a Constitutional mandate.

News reporters may be the worst offenders of spreading disinformation about the trial and what a verdict should be. They often build relationships with the United States attorneys because they are a steady supply of information. Reporters also develop a bias over time that anyone indicted must be guilty. This results in part from the 90% conviction rate. Reporters seldom sit through an entire trial. Instead, they come for a few hours every few days to actually listen to the evidence. Often the reporters visit during the government’s strongest witnesses and they do not stay for the cross examination by the defense. They form their opinion largely based upon incomplete information. The days they to not attend the trial at all they often speak with the prosecutors to tell them what happened. Prosecutors tend to focus on the good points over the not so good points of their cases.

The verdicts in the Julio Robaina case and the Michael Pizzi case were exactly what justice required. The jury that heard ALL of the evidence and watched the demeanor of all of the witnesses were the only ones who could render the correct verdict. Mr. Putney is completely wrong when he refers to Julio Robaina’s case as a corruption case. Mr. Robaina was never charged with corruption. That is sloppy reporting. Plain and simple. Robaina and his wife were charged with filing false tax returns. Tax returns were prepared by professionals who made numerous large mistakes. Some mistakes went in favor of the Robainas and some went in favor of the IRS. The Robainas volunteered to be interviewed by the agents investigating the case. When they stated that they did not take cash payments from a convicted ponzi schemer who stole $750,000 of their money, the government added charges against them for making false statements to the agents.

While they had a Constitutional right to be presumed innocent and not present any evidence, the Robainas proceeded to prove their innocense during the trial. The jury was convinced of it. The verdict was a big relief but, not a surprise to most people who attended the entire trial. One thing Mr. Putney did get right. The government was severely outgunned by Robainas’ criminal tax attorney David M. Garvin. It is impressive to see him at work. One juror after the trial was heard to say that after Garvin’s closing argument the jury had the urge to stand and applaud because it resonated as the Truth. The IRS should have never permitted that case to go to trial. It should have been a civil audit.

Michael Pizzi also should have never been indicted. The total in issue was less than $7,000. The case had only 3 issues. First, a payment of $1,000 wrapped in a newspaper allegedly delivered by a confidential cooperating witness who cut a plea deal. The FBI did not monitor and record the alleged drop off. Pizzi denied ever receiving the money. Second, a $2,000 payment that was left in a plastic bag with 2 cigars on a stool at a pool hall. Pizzi clearly proved he gave the bag away without knowing that there were funds in the bag. A witness found the cash and spent it at the bar. Third, a $3,000 cash payment that Pizzi had evidence to suggest was a reimbursement for a $3,000 political action committee payment he had advanced. Pizzi had the cancelled check. The real issue in Pizzi’s case is what rocket scientist thought that this was enough evidence to stop the investigation and go to trial?

In summary, instead of advocating that the jury got it wrong because two men with no criminal history were found NOT guilty in two separate cases, perhaps Mr. Putney should celebrate that justice was served and raise the question why the United States Attorney’s Office for the Southern District of Florida is willing to indict and take to court.

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