FBI Agent Hal Neilson may face new trial by “selective punctuation” in “The Case of the Misplaced Modifiers”

Having updated Breaking News to reflect the comments of Neilson’s attorney Christi McCoy, we return to the previously announced bitching about review of the three counts reportedly subject to retrial and the doctrine of collateral estoppel applied to the double jeopardy clause:

Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (Georgetown Law Journal)

One would think FBI Agent Hal Neilson’s “trial by grammar” would have ended “The Case of the Misplaced Modifers” – but, apparently, that remains to be seen despite this 2008 USSC decision that held:

An apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause.

In this same USSC decision, the Court wrote, “To identify what a jury necessarily determined at trial, courts should scrutinize the jury’s decisions, not its failures to decide”. Consequently, I’ve set this post up so you can take a look at the counts the jury decided, the quick summary of key points in the NEMS360 report, and the listed on the court’s notice of new trial. (In other words, I’m done for the day – and when I’m too done in to bitch about injustice, watch out!)

Neilson was found NOT guilty on Count Two and Count Five of the Indictment and cannot be retried on these counts or any counts that would re-litigate a decided issue: Continue reading “FBI Agent Hal Neilson may face new trial by “selective punctuation” in “The Case of the Misplaced Modifiers””

BREAKING NEWS: Government to re-try New trial date set for Neilson on Counts 1,3, and 4 of the Indictment – “The Case of the Misplaced Modifer” UPDATED

Quick update here from NEMS360 with Patsy Brumfield reporting:

Monday, Judge Sharion Aycock set Jan. 18 to re-try him on three counts that a 12-member jury could not agree to unanimously across 13 hours of deliberations last week…

Christi R. McCoy of Oxford, one of his defense team attorneys, said the U.S. Speedy Trial Act requires that a new court date be set.

“But we hope the government will elect not to re-try this case,” she said late Monday.

Speechless I’m not but what I have to say is hardly printable!  I’ve been checking Pacer for the jury verdict, intending to write a very different post from the one I’m writing now.

I’ll be back with a look at the three counts and the concept of double jeopardy as it applies to mistrials.

BREAKING NEWS – Neilson NOT GUILTY on two counts, mistrial on three! UPDATED 2X

That’s all that’s Patsy Brumfield has up on NEMS360 at the moment.  More as soon as details are available.  Wonder if the two “substantial” counts were among the three?

A little more on today’s verdict is available now but, it appears it will be tomorrow before we know what was decided on each of the five counts.  If more becomes available between now and then, I’ll add another update.

Wouldn’t you know the minute I hit publish, this story on the Clarion Ledger caught my eye:

A federal jury acquits a veteran FBI agent on two of five counts against him, and the judge declares a mistrial on the other three.

Defense attorney Christi R. McCoy tells The Associated Press that Hal Neilson was acquitted on one count of lying to an FBI agent, and one of making official acts for personal gain.

U.S. District Judge Sharion Aycock declared mistrials on the three other counts. The Northeast Mississippi Daily Journal reports that prosecutors haven’t said whether they’ll retry Neilson on them.

McCoy says jurors hung on one count of acts affecting a personal interest, and two of making false statements.

She says conviction now would have cost the 21-year agent his pension. But she says at the end of December, he’ll turn 50 and be fully vested — meaning he cannot lose the pension.

I’m guessing the not guilty was to counts two and five – but that’s just a guess based on a guess at the meaning of each count.

NEMS360 reports Neilson jury still deadlocked on some counts and working thru lunch

Hal Neilson’s jury foreman said about noon that they may be able to decide on one more count, but they are hopelessly deadlocked on the others.

Obviously, I’m not surprised by the the discussion reported in Patsy Brumfield’s rolling account of today’s events:

11:24 Attorneys called to the courtroom.

11:49 – Judge Aycock says the jury has a question. (She’s shares question with the attorneys.)

(Aycock apologizes to the courtroom participants that the room is frigid. She says they’ve had a unit malfunction, and that the jury room would be very hot, if the courtroom temp weren’t so low.)

Salomon confers with a new guy from Baton Rouge about the jury question. They look at a statute.

Neilson friend, attorney Duke Goza, explains what he knows to the crowd on that side of the room.

OK, Aycock says. As to the first question, if we agree some charges but deadlocked on others, will the counts we agree on will be retried? Continue reading “NEMS360 reports Neilson jury still deadlocked on some counts and working thru lunch”

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

“The Case of the Misplaced Modifiers” – FBI Agent Hal Neilson a victim of “selective punctuation” and his “trial by grammar”could result in “run-on sentence”!

Hencefore, USA v Neilson shall be known as the “Case of the Misplaced Modifiers” by decree of Nowdoucit.

A misplaced modifier is just that: a phrase, clause, or word placed too far from the noun or pronoun it describes. As a result, the sentence fails to convey your exact meaning. But misplaced modifiers usually carry a double wallop: They often create confusion or imply something unintentionally funny.

There’s nothing funny in Patsy Brumfield’s story on NEMS360. She reports the jury hearing USA v Neilson has decided one of the five counts of the Indictment and deadlocked on four.  She also reports the jury asked Judge Aycock to define “substantial”.   A form of the word “substantial” appears in counts one and two – and likely those are two of the four counts the jury has deadlocked on deciding.  Unintentional or not, Neilson faces a “run-on sentence” of 25 years and the lost of his pension for 21 years of service to a Government that with the use of “selective punctuation” and misplaced modifiers has subjected him to “trial by grammar”

Little wonder there’s a deadlock!  Take a look at the first count, one of the two similarly written counts using a form of the word “substantial”.

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.

Now, take a look at this comment from the blogging lawyer of North Mississippi:

I’m being told that “substantial” crops up in two counts in the indictment– that Neilson had to be a “substantial” investor in the business.

Given that he was one of three and had enough in it to take out $50K at one point in some form, I’m puzzled that the jury would stick on that point.

The indictment doesn’t charge Neilson with being a substantial investor!  It charges him with being a substantial participant!

I saw it! Now, do you see it?