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Former Federal State Prosecutor Worries About Jury Nullification In Manafort Trial


This week in The Daily Beast, a pair of former prosecutors wrote this about the Manafort case - the trial inevitably will be seen as a referendum on the Mueller investigation as a whole. Elie Honig is one of the authors of that piece. He's special counsel to the law firm Lowenstein Sandler and a scholar at Rutgers. Thank you for being with us.

ELIE HONIG: My pleasure.

CHANG: So why do you say the stakes in this case could not be higher?

HONIG: Yeah, so I look at that on two levels. First of all - for all the developments that we see every day, let's not lose sight of the fact that we have the former campaign manager for the president of the United States being tried in federal court for tens of millions of dollars' worth of tax fraud and bank fraud. That is a huge deal, and Paul Manafort's liberty and future are at stake. If he's convicted - he's 69 years old - there's a very good chance he dies behind bars. Bigger picture, this is really the first thumbs-up or thumbs-down test for the Mueller team. This is the first time they're putting their case in front of an impartial trier of fact, the judge and the jury. And we're going to get a yes or no verdict. And so I think if they get a conviction, that's going to be an important step further, cementing the legitimacy of the Mueller team. If they don't get a conviction, and that could be an acquittal or a hung jury, then I think you're going to see the president and anyone who believes this is a, quote, "rigged witch hunt" rejoicing and celebrating.

CHANG: A lot of observers say that this is going to be a slam dunk for the prosecution because there's so much evidence. But you bring up in your piece something that could derail the government's case, and that's this idea of jury nullification. Can you just briefly explain what is jury nullification?

HONIG: Jury nullification happens when the jurors disregard the evidence that's been introduced at trial and the judge's legal instructions and instead decide the case based on some personal belief - some external belief that they may have, whether that's a political belief, a religious belief or just sort of a personal feeling about the case.

CHANG: OK. But jury nullification is extremely rare. Do you think there could be a greater chance of jury nullification in this case because it's been so highly anticipated and so politically charged? We have the president today calling, in tweets, for an end to the Russia investigation.

HONIG: Yes. Jury nullification is extremely rare. I want to make sure that point's clear. And I think jury nullification is at a higher likelihood in a high-profile case and especially here. This is about as high-profile as it gets.

CHANG: Well, how about you? Do you have personal experience with this? I mean, have you had a case where you were pretty sure one juror nullified?

HONIG: I have. About 10 years ago, I was tasked with doing the fourth trial of John Gotti Jr. here in New York City. He had been tried three times previously, and each time the jury hung. A few years later, he was charged again, and I tried that case against John Gotti Jr. And the jury hung 6-6. And at the end, we got to talk to the jurors. And the jurors who were for acquittal essentially said, yeah, we don't doubt that he was guilty. We just think it's unfair to try someone four times. So essentially...

CHANG: Oh, yeah.

HONIG: ...What that jury did was say, OK, the evidence may make out this guy's guilt, but we have a belief - a personal belief - about, basically, the overall fairness of the system.

CHANG: You've already mentioned that there's a possibility of a hung jury. If there were a hung jury in this case, what are the broader implications for the Mueller investigation? Would that be really damaging?

HONIG: I think a hung jury would be seen as pretty much an - akin to an acquittal. Technically, a hung jury is a tie, and almost always those cases are retried. But a hung jury is - make no mistake - is a loss for the prosecutor. I've had a hung jury. It hurts. If you ask a defense lawyer, will you take a hung jury? Ninety-nine times out of a hundred, they'll say absolutely. And a hung jury here would be - I would predict that the president and others would gloat about a jury refused to convict. They didn't acquit. OK, but they refused to convict based on Mueller's evidence.

CHANG: Elie Honig is a former federal and state prosecutor. Thank you very much.

HONIG: You're welcome. Anytime. Transcript provided by NPR, Copyright NPR.

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