Somewhere in his voluminous writings, criminal defense attorney Norm Pattis, a very “good” – quote marks intended – lawyer, makes the case for jury nullification. His argument runs along these lines: We trust jurors with our property, our lives and our sacred honor, why then should we not trust them to bring in a just verdict athwart the instructions of a judge or the presentation of highly edited evidence?
In the modern (Kafkaesque?) trial, the defense and prosecution are permitted to argue during various sidebars and out of the hearing of a jury the fine points of law according to which this or that piece of evidence, germane or not, should or should not be presented to the jury. Why not allow all evidence, save fictional evidence, to go to the jury and allow lawyers to argue at trial whether or not the data is pertinent?
Why should the play – a trial is a real-world play in which the future of the accused is decided by a judge or a jury of his peers – be so heavily edited before the verdict is read out by the jury foreman? If the sense of the jury is that the accused is innocent, why should its verdict be imprisoned by sidebars and a highly edited script? If the jury feels that the accused is innocent, why should the peers of the accused not be permitted to proclaim his innocence boisterously after a trial in which they have been permitted to judge ALL the evidence, rather than a Procrustean script heavily edited by professional pleaders?
These questions have now reared their ugly heads in the upcoming trial of John Rowland -- and the curtain on the play has not even been rung up yet!
Consider the determinative foreplay.
It is important to note that the accused is not a very sympathetic character. Mr. Rowland had been convicted of robbing the public of honest services while governor, for which he had served a year in jail. Having done his time, Mr. Rowland bounced back as a conservative radio talk show host, a professional agitator who had during the few years he spent jawing at WTIC-AM alienated pretty nearly every Democrat and liberal in true blue Connecticut, including the state’s left of center media, nearly all of whom were waiting with baited breath for the next hobnailed boot to fall on Mr. Rowland’s bloodied head.
The media resented that Rowland had been, before his swift and righteous downfall, a popular governor, that he had not been publicly impeached and tried in the Senate, that he had not been sufficiently punished after his first conviction, that he was a “conservative” – quotes marks intended – sub-par journalist , that he had been lobbing torpedoes daily at the present progressive regime, that … well, the members of Connecticut’s media, ninety-nine percent of whom are left of center liberals, no doubt had a quiver full of good reasons to fulminate against Mr. Rowland, every one of which would have prevented them from serving on the jury in Mr. Rowland’s upcoming trial -- which trial has now developed the kind of wrinkle that frequently tickles Mr. Pattis’ fancy.
The chief witnesses for the prosecution, Mr. and Mrs. Brian Foley, were not always amenable to Mr. Rowland’s prosecution. The FBI moved Mr. Foley into a cooperative posture by threatening to put his wife, Lisa Wilson Foley, in prison for ten years or more if he did not agree to serve as a witness against Mr. Rowland. For a loving husband, such threats amount to an unimpeachable argument. The Foleys soon were persuaded of their own culpability and accepted a deal from the prosecution that would keep Mrs. Foley on the freedom side of prison bars.
But there was a hitch; the transition from guilt to innocence in the Foley’s case was not smooth; a dead body was tucked under their rug.
One paper describes the lump under the rug this way: “Before Foley agreed to cooperate with the government, and while he and his wife were under investigation as conspirators, Hubert Santos wrote three detailed letters to prosecutors protesting Foley's innocence. Rowland has those letters and intends to use them in his defense. Rowland also has a letter to Foley from a Washington lawyer advising Foley that he could hire Rowland as a business consultant while Rowland volunteered his services to Wilson-Foley's campaign.”
This is what used to be called in Greek drama “peripetia,” the pivot in the play that reverses the circumstances. Perry Mason’s client appears to be guilty – but wait! At the very last moment, Paul Drake, Mason’s detective, rushes through the courtroom doors bearing in hand a sheaf of papers that will exonerate his client. Peripetia circles Mason’s brow like a halo. A close-up catches his smile.
The question is: Should the contents of the exculpatory letters go to the jury, or should such data inconvenient to the prosecution be excised before the play opens by deal makers who do not want the items to disturb their preferred monologue?