More intrigue with Brooks trial

 

Most thought that the trial of David Brooks would be over by now.  The jury was given the case on Monday afternoon, Aug. 2. After deliberating for 30 minutes on Monday and then all day on Tuesday, Aug. 3, the jury was then given a week off (something rather unusual) and resumed deliberations on Tuesday, Aug. 10. Deliberations continue to this day (Tuesday, Aug. 17), but as has become the norm with Brooks, the trial has been far from the norm and this has continued.

 

Newsday’s Robert Kessler, who has covered this case from before the trial began to right now, reported this week that there are accusations of jury tampering and that possibly, both David and his brother Jeffrey (and others) have done things to maybe attempt to influence the jurors.  A grand jury is looking into a note, apparently written by David Brooks, that may have been hidden in a pile of legal documents. According to Newsday, Judge Joanna Seybert, after reading the note, said it might be meaningless or might be “an attempt to … influence jurors.” David Brooks, also according to Newsday’s sources, said that the note had to do with, believe it or not, harness racing.  Obviously, the content and meaning of the note seem to have varied interpretations.

 

But what does all this mean for the case?

 

The prosecution can’t be happy on a number of levels.  While you never know what a jury is going to do, many observers (including this writer) believe that the government put on a pretty compelling case against David Brooks.  But the longer this jury stays out, the better it is for the defendants.  And when a note from the jury forewoman to Judge Seybert earlier this week asked that she give a “pep talk” to the jury, well, that’s not something that will make a prosecutor smile. (The judge did bring the jury back out, in response to the note, and reread her instructions to the jury about deliberations, according to Newsday).

 

This may all be leading to a possible motion for a mistrial (or the judge considering a mistrial).  While motions requesting a mistrial are often made, they are rarely granted.  But if there was some kind of jury tampering, or even if the jury finds out about what’s going on, that could very well compromise the jury in rendering its decision.

 

But would the defense want a mistrial given the fact that clearly there is some kind of split in the room (otherwise, there would already have been a decision one way or the other in the case)?

 

Would the prosecution, at this stage, want a mistrial?  Another interesting question, since so much time, effort and money has been put into this prosecution.  If there ever was a mistrial, that would put everybody back to square one but with a much better idea as to how the case would be presented (if there were a second trial) the next time around.

 

There are other problems. For the defense, David Brooks has been confined to jail since very early in the trial.  If retried, he’d probably stay there (although the defense would try and get him out).  David Brooks is looking at future legal bills, probably in the low seven figures (i.e., $1 million plus) for a retrial.  In addition, he still has trials for income tax evasion, contempt and (possibly) jury tampering on the horizon. Even if acquitted in the main case (something that hardly seemed possible three weeks ago), he will have the other trials to deal with (and pay for).

 

Problems for the prosecution also exist. If Brooks is acquitted, that would be a minor disaster for the United States Attorney’s Office.  If there ever was a mistrial, they would have to decide whether to prosecute again, something that would be incredibly costly from a time, effort and money view.  But whatever happens in the main case, the prosecutors may very well decide to try a tax evasion case and the contempt case will go forward after the main case ends (in whatever fashion it does end).

 

Generally, as trials wind down to the climactic moment (guilty or not guilty), there is usually a lot of waiting around for the lawyers and parties involved.  Not so in this case, where strategy has continued to be required right up to the moment of decision.--By Steve Kallas.