Jurors in the public corruption trial of Sen. Robert Menendez (D-NJ) resumed deliberations on Tuesday but failed to return a verdict before they retired for the evening, one day after they sent U.S. District Judge for the District of New Jersey William H. Walls a note that they were deadlocked.
“The panel of seven women and five men didn’t ask the judge any questions during the fifth full day of deliberations — but only the second since one juror was replaced — in a room off a fourth-floor courtroom here,” the Philadelphia Inquirer reported.
Menendez and co-defendant Dr. Salomon Melgen face 18 felony charges. Melgen was tried separately on Medicare fraud charges estimated to exceed $100 million that figure in the current trial, and was convicted in April on 67 felony counts by a jury in a Florida federal court.
The core of the federal government’s case against Menendez is based on his lobbying efforts related to the billing practices for which Melgen was convicted, as Breitbart News reported:
Menendez lobbied [then HHS Secretary] Sebelius to allow Melgen to keep $8 million in money he had been paid by Medicare for bills he submitted between 2005 and 2008 for the same fraudulent billing practices. Sebelius refused to intervene in the adjudicatory process in that matter, and Melgen was required to pay back the $8 million he had received in overbilling for the earlier period.
In return for these and other favors, the federal government alleges, Melgen made over $750,000 in campaign donations to PACs and other campaign entities that were earmarked for Menendez’s 2012 re-election campaign, which he easily won. In addition, Melgen paid for an estimated $58,000 in air travel for Menendez from New Jersey and Washington, D.C. to the Dominican Republic and Florida. When these trip payments were discovered some time later, Menendez reimbursed Melgen.
After receiving the note from jurors on Monday, Walls told them to come back and try again Tuesday morning.
“Take as much time as you need,” Walls told the jurors when they returned Tuesday morning.
“This is not the first time jurors have told a judge they are unable to reach an agreement, and later on agreements are reached,” Walls continued, Politico reported.
“Walls read them instructions in which he encouraged them to keep trying to reach a consensus,”NorthJersey.com reported:
“Do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous,” he said. “But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of reaching a verdict.”
Walls also diverged from those instructions, called a model charge, to remind jurors that “this is not reality TV” and to ask them somewhat cryptically to consider one question above all others: “Why?”
After Walls delivered those jury instructions in the morning, Menendez’s defense attorney Abbe Lowell took exception to them.
“I object to the fact that you varied from what you gave us ahead of time,” Politico reported Lowell said.
“Why is a very common and innocuous but a very effective question. Why? … Just like ‘why are you standing there grimacing?’” Walls responded.
“I’m not grimacing,” Lowell shot back.
“Your great desire to quarrel with me has no merit,” Walls told Lowell.
The jury’s inability to reach a verdict during the day prompted further discussions in court.
“After Walls excused jurors for the day, the judge and defense attorneys discussed possible next steps,” the Inquirer reported:
If the jury again reports that it is deadlocked, Melgen attorney Murad Hussain said, the judge should “inquire of the jury foreman as to utility of further deliberation.”
Peter Koski, a prosecutor with the Justice Department, said the judge should consider instructing jurors to determine whether they can reach a unanimous agreement with regard to at least some of the charges — and thereby return a partial verdict.
Walls said he was open to both ideas. But he took issue with the defense’s suggestion that he ought to tell jurors that a deadlock was acceptable.
“Give me precedent for that,” he said. “This is the first time I’ve ever heard that.”
Defense attorneys said they would look for such a case.
The jury will resume deliberations for a sixth day on Wednesday.