At the beginning of the week, once again DOJ prosecutors demonstrated how petty and vindictive they can be when they recommended that Roger Stone get a prison sentence between 7 and 9 years for obstructing Congress’s Russia investigation. Today the Justice Department announced they would not seek to file criminal charges against McCabe over misleading federal investigators in connection with a 2016 press leak. The gracious treatment McCabe received is in stark contrast with the treatment Roger Stone got earlier in the week. They both mislead federal investigators. The irony is that if Andrew McCabe had done his job in 2016 the Russia Investigation would have quietly died behind closed doors and Roger Stone would not be jail. Instead Roger Stone is looking at 7 to 9 years in prison primarily because the Justice Department lawyers created a crime for obstructing an investigation that should not have existed. It is a bad look and Attorney General Barr should have known better.

A couple of weeks ago I was reading a question on Skeptics, Was Paul Manafort exonerated for the crimes he’s now charged with? So while the accepted answers attempted to wrangle out a legal definition for “exoneration” when there has been no trial, I found it puzzling no one noticed that the instructions given to a jury use the words “Guilty Beyond A Reasonable Doubt”. The problem with the word, exoneration, is best understood by looking for the word, exoneration, in the following tweet. If the jury gives a “Not Guilty” verdict because they thought he was “probably guilty”, does that mean Mr. Manafort is exonerated? I don’t think so. It means that they found him “Not Guilty”. Exoneration is a term best left to the TV pundits to define.

Manafort defense team had used a chart (kind of like this) to emphasize how high of a burden reasonable doubt is, so it makes sense that jurors might want some clarity from the judge. Defense told jurors to “hold the government to its burden.” pic.twitter.com/Y4XjEbmhYU

— Ryan J. Reilly (@ryanjreilly) August 16, 2018

On Monday I served as a juror in an interesting drug case. In this case, the defendants, a man and his girlfriend, were accused of selling five ounces of marijuana to a confidential informant in a sting operation. It sounded like a straight forward case. The prosecutor said they had pictures, audio recordings, and the defense did not contest that the drug was marijuana. So my first thought was why did the defense opt for a jury trial. What am I missing?

During the jury selection process the attorney’s asked the prospective jurors many questions about drugs and especially the personal impact any of us might have felt from drug-related crimes. A surprisingly large group of people said that they had been items stolen from them that were attributed to heroin addicts. It seemed that everyone had been affected by a drug crime or a relative with a drug problem. Only one person mentioned that marijuana usage had caused a major family problem. These admissions confirmed a suspicion I had that heroin was a major problem in this county. So why did the police conduct a sting operation for marijuana? It seemed like a whole lot of drug enforcement effort when heroin is the big problem in the community. Then it got interesting. During the juror questioning the prosecutor admitted that the confidential informant was the man’s step-brother and that he decided to cooperate with the police if the police would help him with his arrest problem. So the police went after these two drug dealers because they were the low hanging fruit in the drug dealing world. I was willing to accept this explanation until the prosecutor described the confidential informant’s crime, he stole someone’s credit card number and used it to buy $22 of pizza. Wow! He turned on his brother for $22 of pizza! Now I was real curious about what the brother did to elicit this type of response. I wondered want mom had to say about both of her son’s problem with the law?

Fortunately, I did not have to wait too long. After the opening statements, the prosecutor called the first witness, the step-brother. That is when I noticed that that the confidential informant was not in the court. Hmm…that is unusual. The prosecutor explained to the court that he was seated outside and asked permission from the judge to go fetch him. The prosecutor returned almost immediately and asked for a fifteen-minute recess. Hmm… not a good start for the prosecution. About ten minutes later the court resumed and we got our first look at the step-brother. His body language screamed I do not want to be here but there he was. He took the oath, sat down in the witness chair, and the prosecutor started his questioning. The prosecutor’s questions were simple but almost immediately the step-brother started pleading the fifth. That was not in the plan! The prosecutor’s face was a mixture of astonishment and embarrassment. The judge recessed the court again and the jurors went to the waiting room. About five minutes later the judge enters the waiting room and says that he dismissed the case. Without testimony from the key witness, the prosecutor’s case was doomed. Several of the jurors expressed surprise that the police went to the effort of setting up a sting for a relatively small amount of marijuana considering that legalizing marijuana was a likely ballot issue in the Fall. The judge explained that there was no minimum amount for a drug trafficking charge and that this was the lowest felony, a fifth-degree felony.  He went on to say that although he has a favorable opinion of medical marijuana use he was conflicted on how legalization would work out. From his experience as a prosecutor, he saw marijuana as a gateway drug and heroin users have to start somewhere.  The justice system worked and the drug dealers got off. It was an odd, unsettling ending to the day.