They say that the best trial lawyers are good gamblers.
Well, Bill
Barzee and Joel
Denaro took a huge gamble today, which almost paid off big. After a week of trial before Judge Jordan, the jury was deadlocked.
Barzee and
Denaro decided to ask for a majority-wins verdict. Jordan said that if the prosecutor, Frank
Tamen, would agree the Court would accept the non-unanimous decision.
Tamen said no. So mistrial.
What was the vote, you ask.
7-5 for acquittal...
Conventional wisdom from the defense bar is to always require a unanimous verdict; never agree to majority wins. Typically, it's the government, not the defense, that requests such a jury decision.
Dear readers, what do you think about the conventional wisdom? About the Barzee/Denaro gambit? Better to live to fight another day? Or take the verdict with the first trial, your best shot at victory?
Here's
some of the Herald article on the case:
Federal prosecutors in Miami have failed to secure a conviction of a man who -- according to his own lawyers -- smuggled enormous amounts of cocaine into the United States from Colombia.
The reason: The feds were unable to prove to the jurors' satisfaction that the crimes of Hernan Prada occurred within the statute of limitations.
As a result, jurors split 7-5 on Tueday in favor of acquittal, forcing U.S. District Judge Adalberto Jordan to declare a mistrial in the trial of Hernan Prada.
Prosecutors are expected to retry Prada, who authorities said once ran an international enterprise that pulled in hundreds of millions of dollars a year, as soon as next month.
During the seven-day trial, it was never in dispute that Prada at one time oversaw shipments of cocaine from Colombia to the United States. Even his lawyers conceded that point.
However, that was not enough for a conviction. The underlying issue of the case was this: Did the alleged Colombian drug-cartel kingpin plan or execute any deals after July 2, 1999, when the statute of limitations in his case would have expired?
When it became clear that a unanimous verdict was unlikely, the defense took an enormous chance.
At Prada's urging, attorneys William Barzee, Joel Denaro and Jelani Davis petitioned the court for a rarely used provision: a non-unanimous verdict. At the time of the proposal, it was not known which side had the most jurors in its corner.
All that was needed to declare guilt or innocence in such a case was a simple majority.
Jordan considered the proposal. Assistant U.S. attorney Frank Tamen dismissed it immediately. Later, it became clear that Prada would have walked if the prosecution had agreed.
''Our instinct was right,'' Denaro said. ``It would have been spectacular if they had agreed. It was really intense.''
