Smiling Faces Sometimes

Tuesday, March 26, 2013

The First Mistake

The counts in this prosecution of Paul Bergrin should never have been thrown together to begin with. In an early post on this blog, I thought it could still work and I'm not sure if that was my attempt at being positive or my over-confidence in the ability of jurors to process the information throughout the trial and follow the judge's directions when deliberating.

Clearly, severing the counts as Judge Martini chose to do was the only fair way to try Bergrin. I realized this during the trial, after reading a comment made by an attorney based in the Newark area on an online newspaper article. The comment referenced a belief that Bergrin is guilty based on the volume of evidence - he stated that there was just such a volume of evidence that guilt was obvious. Of course I argued that point because volume will never equal substance and quality.

Ironically, the one juror that was interviewed following the trial referred to the volume of evidence in an interview with a Star-Ledger reporter. This is an exact quote of the juror's statement to the reporter:

"As to how he viewed Bergrin’s guilt, Hershorn said, "I think the accumulation of evidence and witnesses and exhibits and the (prosecutors’) presentation was important … in terms of blending into an overall scope of the story.""

There would have been no "accumulation of evidence and witnesses and exhibits" if the jury had followed the judge's instructions. Innocence or guilt on each of the 23 counts was supposed to be weighed separately per instructions for the specific count.

I knew there was a serious problem when the jury reached verdicts as quickly as they did. I expected the jury to deliberate for a minimum of two weeks. To be honest, I expected a hung jury on most counts and acquittal on the rest. There was one count that I considered it possible for the jury to reach a guilty verdict and that count did not involve the testimony of criminal informants or jailhouse snitches.

Why would I expect deliberations to last a minimum of two weeks? Well, let me break that down for you:

The jurors were at the courthouse for an average of 8 hours a day. An hour each day was spent for a lunch break and then according to statements from the judge, there were early breaks, which I believe to be smoke breaks because of the one jury note referencing a request for one. In general, one cigarette is not going to be sufficient for a smoker all day and I believe there was more than one smoker on this jury.

So, out of that 8 hour day, we can assume that around 2 hours were used for breaks. That leaves 6 hours to discuss the case each day. There was also a wait over the Anthony Young transcript as is discussed by Judge Cavanaugh, Paul Bergrin, and the prosecutors. Yes, they argued over what to purge from the Young testimony (sidebars, rulings, objections etc...) before the Young transcript was handed to the jury.

The jury actually only deliberated for 11 hours or less to determine innocence or guilt on 23 serious counts. That, dear reader, is less than 30 minutes per count. Think about that for a minute and then think about the one juror's statement to the Star-Ledger reporter.

In my opinion, the jury did not even bother to address each specific count. I would have thought discussion of each count would take at least a half of a day and more likely a day or more. I expected this jury to deliberate and discuss Paul Bergrin's fate for 3-4 weeks, but no less than 2 weeks. In the last trial that was only on the one count related to the murder of Kemo Deshawn McCray, the jury deliberated for a couple of weeks and could not reach a unanimous decision.

This jury reached a unanimous decision on each and every count in less than 2 days, or really less than 11 hours. They were in a serious hurry to be finished with this trial. The judge congratulated all of the jurors for their hard work and thanked them at the end of the trial - he should rethink that statement.

If an attorney can view this trial as a volume of evidence instead of broken-down by individual count, it should have been easily predicted that the jury would lump it all together too. This was the first mistake with this trial. I will be discussing some of the other mistakes from my perspective in the next month.

These people (the commenting attorney referenced and the jurors) do not think like I do. I tend to rip everything apart, piece by piece, and consider one part at a time. This is an investigative technique that I learned long ago and then later used in viewing and investigating each witness statement and testimony in my own trial. I consider it to be related to critical thinking skills.

UPDATE on 26 March 2013 @6:30pm:

To refer to the specific jury instruction described in this post, view the jury instructions linked below. The relevant instruction is on page 32 of the document itself, but shows as page 38 on the PDF. The heading is:


Jury Instructions

Each offense should be considered separately. Really I am being generous with my statement on the minimum deliberation time being two weeks - really generous. How can a jury discuss the count, list the evidence, and discuss the pros and cons of each piece of evidence and each relevant witness testimony, and then come to an educated decision in less than an entire day per count IF following this instruction?

UPDATE on 28 March 2013 @1:15am
I have decided that the best way for me to discuss the transcripts on this blog is to address the testimony of government witnesses that I have not already discussed on this blog, link to those previously discussed when necessary, and include defense witnesses that dispute the government's described plots. The racketeering counts are so vague that approaching this count by count would involve repeated discussion of the testimony of a long list of government witnesses.

It is my opinion that the government obscured the counts as related to the witness testimony to purposely confuse jurors. As Hershorn stated, "the accumulation of evidence and witnesses and exhibits" resulted in a mountain of evidence, though the quality of this so-called evidence is severely lacking when closely examined, and especially after reading Paul Bergrin's cross-examinations of each government witness.

It is almost as if the jurors plugged their ears to facts and truth revealed in Bergrin's cross-examinations and the entire production began and ended with the government's direct examinations. I have read through only 6 days of transcripts at this point, yet there are so many examples of clear witness impeachment that it undermines the entire case.

(> _ < )  ( > _ <)  (shaking head!)


Aziz Bashir said...

Theirs only one vicky gallas, and thanks again keep up the good work.

Vicky Gallas said...

That is kind of you to say. Thank you.

Anonymous said...

A case like this should be brought to the attention of the Innocence Project.

And yes Vicky, great job covering the FACTS in this case. Hopefully Paul is granted an appeal and is allowed a new trial. The Appellate Court should really just dismiss the case in its entirety.... But that would be asking for too much.

Vicky Gallas said...

Thank you and I am far from finished covering this case. I'm composing a post now, though I have been ill for more than a week now and can't be sure I'll finish it tonight.

If the counts aren't severed in any new trial and we get naive jurors that are unaware of how the informant system in the US actually works, I fear the results could be similar. At least with the counts severed, they must view it as 2 + 2 = 4 and it's easier for them to come to a valid verdict and then we must only contend with the type that believes everything government representatives say - an easier task to overcome.

No one knows the reality of what is too often referred to as "the best legal system in the world" unless it's the result of a personal experience or that of a close friend or relative. This type of potential juror is too easily dismissed by prosecutors in voir dire.

This isn't the first time the government has wrongfully pursued a criminal defense attorney and it won't be the last. I'm sure it was intended as a message to the rest.