Mueller's case against Manafort should be a slam dunk. So why is the jury still out?

As the jury deliberates the fate of President Donald Trump’s former campaign chairman, Paul Manafort, on bank and tax fraud charges, I feel for the prosecutors who must place their faith in 12 strangers to make a decision based only on the facts and the law of the case. It sounds simple, but it’s not.

During my three years as a state prosecutor and 25 years as a federal prosecutor, I tried upwards of 100 cases. The trials can be tough, but waiting for a verdict is agony. This is especially so in high-profile cases like the Manafort trial, where an acquittal can take a personal failure and weaponize it as it spreads around the globe and comes back to you in countless hours of TV and press analysis that dissects where you went wrong.

The evidence in the Manafort case is straightforward. Mr. Manafort made millions of dollars of income and did not pay taxes on the money he made. Then, when the money came to an end, Mr. Manafort lied to banks about his assets to get loans in order to keep himself comfortable in $15,000 ostrich-skin jackets.

At trial, the government presented countless documents and testimony from witnesses to support the charges. The case seems like a “slam-dunk.” But, for prosecutors, a “slam-dunk” can sometimes be dangerous.

The problem is that jurors, who are almost always unfamiliar with the law and the relative strength of evidence that typically accompanies a prosecution, feel that they have been placed on a jury to perform a solemn duty. And, when the overwhelming evidence calls for a conviction in a scream rather than a whisper, jurors can be perplexed about their role in the process. After all, if it’s so clear that Mr. Manafort should be convicted, why is everyone treating the case like an Agatha Christie mystery?

Piles of evidence can often lead jurors to hunt for issues to solve. Once that starts, the prosecution is in trouble. The first sign that this may be happening in Mr. Manafort’s case came within hours of the jury commencing their deliberations, and it came in the form of a note. After proving your case 10 times over to a jury, the note that strikes fear in the heart of every prosecutor contains two words: Reasonable doubt.

Not long into their deliberations, the Manafort jury asked the judge to define the term “reasonable doubt.” Since reasonable doubt requires the jury to take a commonsense view of the evidence, the fact that the jury wanted assistance in understanding the term is not good when the evidence is as strong as it is in Mr. Manafort’s case. It suggests that the jury is searching for guidance while ignoring countless evidentiary road signs that all point in one direction.

While the government did not make Manafort’s case a referendum on Donald Trump’s presidency, it would be foolish to believe that jurors will not consider the implications of convicting someone tied so closely to Mr. Trump and his presidential campaign. Yes, jurors have been instructed not to consider this, but only the most naïve among us would believe that an instruction will suffice to overcome the fanatical support President Trump has from many in his base. One die-hard MAGA-cap-wearing juror can be a fly in the ointment that pushes this case to a hung jury or an acquittal. And, to the extent any sitting juror may be unsure how the president feels about the prosecution of Paul Manafort, he need look no further than President Trump's tweet implying that Manafort is being treated worse than gangster Al Capone.

The verdict in Manafort’s case has implications far beyond this trial. It will be viewed by many as a referendum on Special Counsel Robert S. Mueller III and his broader investigation into 2016 election interference. If this case fails to bring a conviction, expect aggressive calls from within the Trump orbit, including his supporters in Congress, to end Mr. Mueller’s investigation. The argument will be that if Mr. Mueller cannot successfully prosecute a “sure thing” like the Manafort case, we should not place time, money and confidence in him to handle the far more complex and politically charged Russia investigation.

In addition to the attack on Mr. Mueller that will come from all whose ears register the transmission frequency of Fox News, failure to convict Mr. Manafort will have pragmatic consequences for Mr. Mueller. People like Rick Gates, Michael Flynn and George Papadopoulos don’t plead guilty and cooperate with the government out of the goodness of their hearts. They do it because they are convinced the government will convict them if they go to trial. All that will change if Mr. Manafort squeezes out an acquittal against all odds. A Manafort acquittal will leave Mr. Mueller wounded, and it will permanently change the trajectory of his larger investigation.

And so, as the Manafort jury continues to deliberate, I feel for the prosecutors who anxiously await a verdict. I know what it is like to walk around for days on end with your stomach feeling like you made Red Robin regret their decision to offer an endless basket of fries. All we can do is wait and hope the jury steps back so it can see the evidence that has been neatly stacked and placed at its feet.

Michael J. Stern, an attorney in Los Angeles, is a former federal prosecutor in Michigan and California. His email is sternlawpractice@gmail.com.

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