Neilson jury deadlocked – deliberation resumes Saturday in “The Case of the Misplaced Modifiers”!

Although the trial of Oxford FBI Agent Hal Neilson was expected to end today, Patsy Brumfield’s story on NEMS360 reports Deadlocked jury to return Saturday:

4:56 P.M. – Judge asks attorneys to come back… Jury wants to leave for the night, still deadlocked. I’m going to excuse them. They want to return at 9 a.m. tomorrow.

Neilson’s case went to the jury around 4:00 yesterday afternoon and adjoured two hours later.  They returned at 9:00 this morning and, apparently deadlocked before breaking for lunch, according to Brumfield’s running account of the day.

It’s Friday, and Hal Neilson’s jury has a question for the court…

It’s 2:09, and the attorneys, plus Neilson’s family and several friends are back in the courtroom waiting to learn what the question is…Aycock says, the question: We have decided one count and we are deadlocked on four counts. Do we understand that we must decide on all five counts…Jury also asks for definition of “substantial.”

Since “substantial” appears in Count One and Count Two of the Indictment , logic suggests these are two of the four deadlocked counts – but this was just the first note the jury sent out and we’ll come back to a discussion of each of the five counts after we follow Brumfield’s narrative to the end of the day:

Sides mildly argue about whether Webster’s definition could do, if Black’s Law Dictionary does not define it.

Aycock – reluctance to assign a definition… suggests: “There is no special or legal meaning of substantial. I suggest use ordinary experience and common sense. Apply as you would in your ordinary affairs.”

2:22 – bring in jury. Jury returns. Judge welcomes back and thanks for diligence and conscientiousness in this case.

She reads them her response: A separate crime is charge in each count. Each should be considered separately. The fact that you may find the defendant guilty or not guilty as to one, should not influence your decision as to the others.  She reads them her suggestion about “substantial.”

Less than an hour later, the Judge calls everyone but the jury back in the court room:

Judge – says she proposes to read a modified charge to the jury, modified by her.  Jury says they are permanently deadlocked on 4 counts, and decided on 1.

3:12 – Jury returns.  Judge – says have agreed to one count and deadlocked.

She says she will ask them to continue in an effort to agree on a verdict and dispose of this case. A few additional comments. This is an important case. It has been expensive to all involved. Any future jury will be chosen from same source you were chosen. No reason to believe that the case could go to 12 men and women more competent than they are. Those who believes in guilt, should stop and ask if evidence is really convincing enough. Those who believe in non-guilt, should stop and ask if the doubt you have is a reasonable one, given others do not share your doubt. Remember, no juror should yield an opinion, but remember also that after full deliberations, it is your duty to agree on a verdict without surrendering your opinion.

You may return to the jury room. 3:16 p.m.

Almost one hour to the minute later, the Judge calls the attorneys back to the courtroom to address a situation she’s not faced before this trial – a juror who had planned to fly to Denver for a holiday visit with her grandchildren.

Counselors, addressing you regarding Juror 5, (name). Looking at Rule 23, provides that juror can be excused for good cause without agreement or stipulation of the attorneys. Obviously I’ll seek your consent.

Warned you that I’m about to dismiss her. Don’t know where she is and don’t know if it affects an outcome. She said, can I get a phone to call at 4 p.m. to call her husband to cancel plane flight. She’s sent out a note to get our tickets on Monday. But we know that we’ve delayed her. I sense that she wants to see this to the end.

I’ve just never been here before and open it up to you about how to proceed.

Guess my gut reaction is to bring her in, excuse her and actually give her the option, does she want to stay. I feel really bad for her that she’s in this situation. I’m more inclined just to excuse her to visit her grandchildren.

The discussion continues with both the Government’s and the Defendant’s attorneys expressing concern about the dynamics in the jury room.  Both sides agree that excusing a juror at this point “seems very prejudicial to either side”.

Judge- It’s extraordinary. It’s unique. I’ve never heard of it. But the rule is the rule. I’m going to call them all in. I’m going to explain… but … call her in, excuse her for cause, but if you desire to stay, you may remain. Decision is hers.Rule 23 – (reads to attorneys) – Nine days with testimony. Five days of extended hours. Significant expenditure of resources. Significant travel, time taken away from job responsibilities. Court advised jury pool that trial could take 10 days, but less than 10.

About two days into testimony began, (name) advised court deputy that she had plane tickets to leave Nov. 20 to visit grandchildren in Colorado. She offered to cancel for Christmas. Court advised her not to cancel. Court accelerated trial schedule. Changing her flight will cause her a significant sum of money. Asked when she could return. Not until Nov. 27 – a lapse of 7 days.

Court is uncomfortable with sending a jury home for seven days. Likely to affect jurors. Fear of prejudice. Important case. Court of opinion that good cause exists. Court expects to excuse her and that remaining jurors are instruted to continue to deliberate. I’ll make it clear she may remain or she is free to leave.

One of Neilson’s attorneys, Ron Michael, suggests the Judge meet with the juror in her chamber rather than ask her to respond in front of other jurors:

Govt. Salomon – we agree with Mr. Michael. I appreciate his concern. We share them. Could communicate privately or collectively.Judge – Thank you. A good suggestion. Why don’t we do this. Let me get one of you on each side. We’ll bring (name) into chambers and give her this option.

Judge Aycock recesses the court at 4:28 p.m. to meet with juror #5 in her chamber and called the attorney back in a few minutes before 5:00 and told them the juror had
“elected to remain and continue her deliberations” – which brings us full circle to the beginning of this post with Judge Aycock sending the jury home with this charge:

… Suggest you go home and not think about it. Get some rest, get some sleep. Come back with fresh minds, clear heads. Important not to speak to anyone about the dilemma you’re in. You understand how much evidence you’ve heard in this case. Other people just don’t know. What you decide is what you have heard within the four walls of this courtroom.

So, what is the  they heard? Admittedly, the answer to that question is found in Patsy Brumfield’s rolling account of the events and testimony given each day of the trial thus far.  Having followed Patsy’s narrative, I find a credibility gap between the testimony and related documents presented by the Government and the counts in the Indictment.

Both numerical order and deductive reasoning indicate we begin reviewing the Indictment with Count One and Count Two  – likely two of the four that has the jury in deadlock as both contain a form of the word “substantial”:

Count One….while employed by the FBI, did willfully participate personally and substantially as such FBI employee, through recommendation, the rendering of advice, and otherwise, in a particular matter in which, to his knowledge, he had a financial interest, in that Neilson recommended and advised that the FBI lease additional space in the Oxford FBI Building.

Count Two:…while employed by the FBI, did willfully participate personally and substantially as such FBI employee, through recommendation, the rendering of advice, and otherwise, in a particular matter in which, to his knowledge, he had a financial interest, in that Neilson recommended advised, and otherwise participated in evaluating, preparing, and resolving a construction punch list regarding the Oxford FBI Building

Just as soon as I had those two counts in post format, I saw the problem the jury was having with the definition of substantial – and stopped writing to post  “The Case of the Misplaced Modifiers” – FBI Agent Hal Neilson a victim of “selective puncation” and his “trial by grammar”could result in “run-on sentence”!

IMHO, Hal Neilson is an innocent man – a good man, a Columbo – but such a good man no one minds picking up behind him –  or didn’t until the government indicted him for sloppy paperwork and subjected him  to “trial by grammar”.

My best guess is the 5th count is the one  the jury decided.  It’s the only one remotely close to correct sentence construction – and, even at that, it misses by a mile. but has the important part put together well enough to understand:

knowingly and willfully, for the purpose of misleading the Department of Justice..

Counts three and four are so poorly constructed one could call the syntax an obstruction to justice.  Count three, for example, reads it part (yes, part – reading the whole sentence is cruel and unusual punishment):

…knowingly and willfully, for the purpose of misleading the Department of Justice, made and used, and caused to be made and used, a false writing and document (that is, his 2005 Confidential Financial Disclosure Report), knowing the same to contain a material false and fraudulent statement and entry, in that NEILSON executed and submitted his 2005 Disclosure Report knowing that it contained a representation that it was true, complete, and correct, when, in truth and fact, as NEILSON then well knew, he omitted and concealed that, he-had a financial interest in the Oxford FBI Building, an asset with a fair market value greater than $1,000 as of September 30,2005; and b. had a loan of $50,000 from C&G Partnership, a liability greater than $10,000 during the 2005 reporting period.

I can spare you the pain of reading the 4th count as it’s basically the same related to his 2006 Disclosure Report – and wish I could, likewise, spare the jury.  I can only imagine the discussion taking place in the jury room when Judge Aycock answered what she thought was their question.  Likely most, if not all, could define “substantial”.  What they were asking is “what is substantial, his participation or his investment?”

Such misunderstandings are what make misplaced modifiers totally misplaced when used in an indictment – particularly when the case is tried in Mississippi.  Reading and Rights, a February 2010 post published on SLABBED explains and the graphic below illustrates the relevance to Mississippi:

…a task that requires proficient reading skills; i.e.,” integrating, synthesizing, and analyzing multiple pieces of information located in complex documents.”  An adult reading at the lower intermediate level has skills for locating information in dense, complex documents and making simple inferences about the information.

Deciding the guilt or innocence of any man requires more than a “simple inference” – and the syntax of the counts in an indictment cannot be more complex than is reasonable for the average juror to understand.