The Jay Cohen Trial

Greetings from the Southern District of New York. Instead of fastening the cliffhanger to the ending of today's report, I'll spare you the suspense and come right out with it: The verdict will have to wait until at least Monday.

That the jury didn't rush to convict Jay Cohen is mildly good news for the defendant, considering the uphill battle he faced going into today's deliberation. The verdict will clearly hinge on the jury's interpretation of the Wire Act, and the interpretation given to the jury by Judge Griesa rendered the alleged activities of Cohen against the law. Defense attorney Benjamin Brafman yesterday clawed and scratched his way through a summation that was laced with both obvious and subtle suggestions that the judge's interpretation was wrong and that the decision was the jury's, not the judge's. The jury didn't crank out an immediate verdict, so it appears that Brafman's approach was at least moderately successful.

Proceedings began this morning with around an hour of sidebar discussion in which Judge Griesa voiced his adamant displeasure with Brafman's summation. The judge called the closing argument "a request for jury nullification" and an "extreme departure from the rules of law." He scolded Brafman for ignoring the ground rules established in yesterday's sidebars and intimated that he didn't know if the "damage" could be fixed.

Brafman, who looked to be a hair away from losing his cool, fired a few how-do-you-dos of his own, making sure that his objections were articulated properly for the record. He complained that the judge's instructions were "terribly prejudicial," and for the second time since the trial began, he motioned for a mistrial. After touching on the same complaints vocalized throughout the trial, he again suggested that the judge left the jury with no choice but to convict.

Upon trying to escape Brafman's rapid-fire petitioning, Judge Griesa, concluded, "You may very well win in the court of appeals, but I have ruled against you." That was that, and the jury was finally called.

After more than three-and-a-half hours of deliberation, the jury surfaced to produce three written requests:

A copy of 1084.
Instrution on what constitutes conspiracy.
A reading of Cohen's testimony, during the cross examination, about his knowledge of 1084.

Naturally, it was time for the speculation to begin: Would it be necessary to understand conspiracy if there wasn't a presumption of guilt? Does the request for Cohen's testimony mean that the jury rejects or ignores the judge's instruction on the meaning of the word "knowingly"?

The second note wasn't too encouraging for Cohen; the third note was. I acknowledged the first note as a sign that the jury was probably struggling with confusion provoked by a nasty case of legalese. Regardless, the defense has got to be a bit pleased with the fact that the jury didn't breeze through its decisions. As you may remember from the closing arguments, the government wanted the jury to believe it was a simple case and the defense wanted them to believe it was very complex.

In response to the first note, Judge Griesa had a modified version of the statute drawn up, as to eliminate the section that spells out what the penalties are. Curiously, he left out section B--the exemption--as well. The defense objected emphatically but unsuccessfully. Brafman then lobbied to have the letter 'A' added to the paragraph so that the jury would at least recognize that they weren't looking at the entire statute. No dice.

Even more curiously, the judge added the words "is guilty of a crime" to the end of the paragraph despite the fact that they aren't included anywhere in the language of the statute. A baffled Braman adamantly expressed his disapproval, calling the phrase's inclusion "offensive."

After a brief argument, punctuated by Brafman slamming a book down on the table, the jury was called back into the courtroom. Judge Griesa then delivered a detailed definition of conspiracy as it applies to 1084 and sent the jury on its way.

Not too much action today, but the lack of action in itself was intriguing, if not encouraging, for the defense.

Is the end in sight?

By day's end, the jurors look like they've had just about enough, so perhaps it'll get wrapped up Monday.

Supplimental Material: Click here to view a copy of the letter submitted to the court by the defense on Feb. 23.

The Jay Cohen Trial - Day Nine