Government Reliance on December 4 in Closing

The way that I read each day of the Paul Bergrin trial transcripts was to send them to my Kindle, four at a time. There are a total of 37 volumes from this second trial and it's similar to reading 37 books. I argued to publish the transcripts with the hope that some sharp attorney or law student would discover important inconsistencies in the government's theories - yes, that's plural as they have numerous major theories, all based on the Kemo murder conspiracy, that Judge Cavanaugh allowed them to present as facts to the jury.

You will find that Volume 34 has the government closing presented by AUSA Minish; it has more, but that is as far as I made it before falling asleep. What did I discover?

The extent to which the government's case hinges upon the calls corroborating Anthony Young's claims is clear. It proves the extent to which the government erroneously relied upon the calls and the extent of how that erroneous reliance tainted the proceedings. They specifically cite the November 25 and December 4th calls. It also underscores how improper it was for the government to use the Pozo 404b evidence.

Gee - USDJ William Martini was correct to begin with! Are you surprised? You shouldn't be.

So, the government retraction of the December 4 reliance in the response brief and the false apology for advancing that so-called suggestion in the letter dated 1 July 2013, is the usual spin and straw man crap. The entire presentation by the government to the Court is built on the false testimony of Anthony Young. Really it is mind-numbing when you examine the uncorroborated reliance on Young, a violent career criminal, in this case as well as others.

AUSA Minish repeatedly refers to corroboration of Anthony Young's statements throughout his closing argument; however, none of it is real. In the closing it is claimed as fact, but in the actual testimony it was clearly questionable. I could refer to any specific government claim of corroboration of Young's testimony and easily dispute it.

It's better if you read the entire Volume 34, or at least the government's entire closing argument (pages 8451-8584) to understand the reliance on the recorded calls the jury never hears and Anthony Young's false testimony, but if you're short on time, read pages 8504-8508 in Volume 34:

BERGRIN 34 03_13_13 (link removed - contact me privately for a copy)

This entire case is mind-boggling. But you'll notice that the reliance on Anthony Young's testimony of the meeting on a street corner that never happened is disseminated throughout the case and has infected the entire prosecution of Paul Bergrin.

Integrity of Investigation

First I would like to pose the question: Could we even call this an investigation?

This post requires reading of one document and short parts of a transcript for better understanding. Volume 7 of the trial transcripts beginning on page 1386 at line 22 refers to a letter filed by the government on January 29, 2013:

BERGRIN 7 01_30_13 (link removed - contact me privately for a copy)

Bergrin Trial Govt Letter 29 January 2013

You are hopefully aware that the lead agent in the pursuit of Paul Bergrin is FBI SA Shawn Brokos, also known as Shawn Manson and Shawn Brockus and Shawn Brocos in various documents. SA Brokus interviewed anyone that she could find and everyone on the government's witness list in this case. SA Brokos is the one that gave SA Michael Smith the information that was certified in this indictment and detention request. The other agent took her at her word and did no further investigation as is a common practice at the FBI.

If you would like to refresh your memory on the absurd allegations certified by SA Michael Smith in the government's request for detention in this case, read:

Bergrin Detention Certification

If you need to refresh your memory in reference to the cross-examination of SA Michael Smith, read:

Cross Exam of Agent Smith (begins on page 15 with special attention to pages 23-26, 29, 31-32, 44-47, 55-58, )

So now you are aware of the allegations made by SA Shawn Brokos via SA Michael Smith that resulted in Paul Bergrin being held without bail in this case as a so-called flight risk.

Now I ask you...

1. Were any overseas (notably in Japan or the Dominican Republic or really anywhere for that matter) assets that belonged to Paul Bergrin ever identified in this case? Hell no.

Now see page 75 of this cross-examination lines 4-11.

Now I ask you...

2. Have any passports in other names ever been identified or located by anyone involved in this case? The one passport that Paul Bergrin had was in his own name and in the possession of the US government. So where are these other 4 passports that he was accused of holding by SA Brokos? They DO NOT exist!

Now take a look at the testimony of Johnny Davis in Volume 7, beginning on page 1401. The part relevant to this next question begins on page 1424 line 2 through page 1449, the end of the government's direct examination. Mr. Davis describes the man that he saw tucking a gun in his waistband immediately after his stepson Kemo Deshawn McCray fell to the ground on page 1425 lines 23-25 and again on page 1431 lines2-4 and yet again on page 1432 lines 5-6.

Now I ask you...

3. Did Johnny Davis, the only actual witness to his son's murder, describe a light-skinned and bald Anthony Young? Hell no - he described someone dark-skinned and with shoulder-length dreadlocks!

Now look at Paul Bergrin's cross-examination of Johnny Davis that begin on page 1450. On pages 1450-1452, Bergrin makes it clear that both SA Brokos and prosecutors met with Mr. Davis and they were all clear on the description that he gave of the shooter of his stepson Kemo. Mr. Davis again describes Kemo's killer beginning on page 1466 line 10.

Read the cross examination in its entirety and you will know that the one witness to Kemo's murder was treated like a criminal by detectives involved in this case prior to the feds taking it over. Once SA Brokos entered the case, as Kemo was her informant, she went with detectives from Newark P.D. to Mr. Davis's home and treated him like he was a criminal. He describes the scene as the detectives looking around and searching his home, while Brokos spoke to his daughter on pages 1471-1472.

On page 1477 of Volume 7, Mr. Davis again makes his description of Kemo's shooter clear as a sunny day. He never pretended to be able to identify a photo of the shooter as he did not see his facial features, but was positive that the shooter was a heavy-set, dark-skinned, man with shoulder-length dreadlocks. Anthony Young was light-skinned and bald at the time of the shooting.

This is by far not the only evidence submitted by the defense in this case that the Anthony Young story was entirely false, but it is enough to make my point at the moment. When I get to defense witness testimony, the rest of the evidence will be discussed.

Now I ask you...

4. Could we actually call this an investigation?

5. Does what you've read here give you a warm and fuzzy feeling about SA Brokos, her investigative skills, and her integrity?

Enough said for now. While I have no clue about her integrity in her personal life or in her other investigations, she has totally failed in this major prosecution. She lost me way back in the detention certification. So why is it that the prosecutors in this trial hold her in such high regard? That is a question that you will be asking yourself before the last post on this blog is posted.

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.""

Source: Juror in Bergrin trial talks about verdict and a case he'll never forget

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:

SEPARATE CONSIDERATION - SINGLE DEFENDANT CHARGED WITH MULTIPLE OFFENSES

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!)