The jury in the public corruption trial of Sen. Robert Menendez (R-NJ) and co-defendant Dr. Salomon Melgen deliberated for a sixth full day on Wednesday without reaching a verdict.
It was the second full day of deliberation for the jury after they sent a note to Judge William Walls on Monday notifying that they were deadlocked.
On Tuesday morning, Judge Walls instructed the jury to “take as much time as you need” to reach a verdict, and the jury members appear to have taken that instruction to heart.
“Staying quiet and behind closed doors for hours, jurors at U.S. Sen. Bob Menendez’s bribery trial deliberated for a sixth full day Wednesday without reaching a verdict,” the Philadelphia Inquirer reported, adding:
U.S. District Judge William H. Walls excused the panel of seven women and five men at 3:30 p.m., with instructions for them to return Thursday morning. They seemed tired as they appeared before Walls at the end of the day, but didn’t ask the judge any questions.
While the jury deliberated on Wednesday, defense attorneys for Menendez pitched what one media outlet described as a “mistrial gambit” to Judge Walls.
The New York Post reported on the development:
In a bid to secure a mistrial in the bribery case of Sen. Robert Menendez, lawyers for the senior senator asked to poll jurors if the panel says it is deadlocked for a second time this week.
“If the foreman indicates that the jury is deadlocked, the court should question each juror, asking, ‘Do you agree that there is a hopeless deadlock which cannot be resolved by further deliberations?’” the defense said in their Newark federal court filing.
If the jurors’ answer ‘no,’ they might be instructed by the judge to continue deliberating, according to the filing.
Judge Walls, however, has indicated the jury should continue deliberating as long as it can.
He also indicated that he has no interest in issuing an “Allen charge” to the jury, which would, in effect, pressure the holdouts to join the majority to reach a verdict.
“On Tuesday, Walls said he has not ‘come close’ to giving an Allen charge in his decades on the bench,” WSB reported.
Menendez and co-defendant Dr. Salomon Melgen face 18 felony charges. The federal government alleges that Menendez lobbied on behalf of Melgen’s private financial interests in return for generous gifts of more than $50,000 worth of free air travel and political contributions to his own campaign and related Democratic entities of about $750,000.
Melgen was tried separately on Medicare fraud charges estimated to exceed $100 million and was convicted in April on 67 felony counts by a jury in a Florida federal court.
The federal government argues that Menendez personally lobbied former Secretary of Health and Human Services Kathleen Sibelius to reverse the same Medicare billing policies which Melgen was convicted of violating in subsequent billings.
NorthJersey.com offered a fascinating inside view of the discussions Monday morning between the defense attorneys separately representing Menendez and Melgen with regards to the unusual public comments made by the juror who asked to be dismissed in order to take a long planned vacation.
On Monday morning, Judge Walls appointed an alternate juror to replace the dismissed juror. The reformed jury deliberated for a few hours, then sent Judge Walls the note saying they were deadlocked. Walls in turn, told them to try again, and on Thursday the re-formed jury will begin its third day of deliberations as part of that effort to “try again.”
Menendez’s defense attorney Abbe Lowell argued on Monday that the dismissed juror’s public comments indicated that her fellow jurors discounted her vote in deliberations on the last day in which she was on the jury. That discounting, he argued, should result in a mistrial.
“Whether they run out the clock on her or whether they don’t run out the clock, there is nothing that requires me to concede or consider that well, wait a minute now, they should have changed their votes because of her,” Judge Walls responded, adding:
That’s the nature of the jury system, that after, because of deliberation, you may come to change your mind or you may not come to change your mind as the charge well says. Don’t change your mind if you are sincerely convinced that what you are saying is right. But, be prepared to change your mind if you feel as though you are wrong or erroneous.
So, before we get too carried away in this sleuthing, I just want us to keep
in mind, the reason why I say that is because she, the juror number 8, is no longer with us. We are having an alternate take her place.
In effect, we are having, as far as I am concerned, a new jury with an instruction to start from scratch, to start anew, forget about last week and begin your negotiations or your deliberations, however you want to term it.
That we have a disgruntled juror from last week, from a practical and from a legal sense, is really of no moment to me. That she was disgruntled, I’m sorry that she was disgruntled, and I was rather shocked to get this type of note because she is ticked because others don’t agree with her, and that’s the best way to look at it.
Attorney Kirk Ogrosky, representing defendant Melgen, made a similar argument about the impact of the dismissed juror’s statements on his client.
“When the Court instructs in the jury instructions about unanimity and deliberations, it doesn’t say to the jury if there’s someone in the jury that you don’t like, that you think is going to be off in the future, just ignore what they have to say and just ignore them. The jury instructions are very clear. My point was, if she’s right, and this is supposition, if she’s right in what she said to the media, she certainly wasn’t under oath,” Ogrosky told Judge Walls.
“If she could be believed, right,” Walls said.
“Then I would have gone home and my client would have been acquitted on Wednesday,” Ogrosky added.
“And I always say if I were 6 inches taller, I could be Michael Jordan because I have his eye,” Walls responded.
The jury returns to deliberations on Thursday.