I’m a tad concerned, that some persons, those unfamiliar with trial procedures, may misinterpret reports circulating about remarks that District Judge, T.S. Ellis III, has been making while presiding over the trial of Paul Manafort for bank and tax fraud, now underway in Virginia. I’m thinking of reports like this part of a generally fine report from The Atlantic:
When Special Counsel Robert Mueller’s prosecutors laid out their case in opening arguments, they correctly diagnosed Manafort’s sense of impunity. He’d kept right on scheming, they argued, because he believed that he would get away with it. Today, the presiding judge in the case, T. S. Ellis III, made a point of constantly chiding the government. He blamed prosecutors for describing Manafort’s clients as “oligarchs,” a term he called unfairly “pejorative.”
The Republican-appointed judge warned Mueller’s team against trying Manafort for “his lavish lifestyle.” As Manafort heard these arguments, I watched him from across the room. I saw him gazing ever so thoughtfully and detected a flicker of something else, too. In that moment, it wasn’t hard to imagine him believing that he might just get away with it one more time.
I am a recovering attorney, now, but before my retirement I spent my entire legal career litigating court cases, many of them at all levels of the Federal Courts. When I read those two paragraphs, my first take was that good people might begin to worry that the trial judge is saying or doing thing to predispose the jury in Manafort’s favor or against the prosecutors. While I haven’t seen transcripts or attended the trial, I can assure people with near certainty that this sort remark from the trial judge did not take place within sight or hearing of the jury. The jury usually will not see the judge openly blame either side for anything. Lot’s of what happens in any trial takes place in chambers, in bench conferences or before and after the jury enters the courtroom. In the latter case, the press reports about it.
Any judge will most certainly weigh whether the pejorative effect of the term “oligarch” outweighs its relevance to the outcome of any issue presented in the case. He will most certainly tell the lawyers his thinking, on the record, but the jury, typically, will only know that evidence or testimony was offered and either did or did not get admitted. Occasionally a jury may be admonished to ignore piece of evidence, but rarely why.
Equally important, here, is that District Judge Ellis is exactly correct. The government didn’t have a leg to stand on to argue it was somehow relevant to characterize the Russians funding Manafort’s portfolio, of secret offshore accounts, as oligarchs, or in any way at all. Those Russians could be utterly lacking in clout or poor as church mice after sending their dough to Manafort. It would make no difference to Manafort’s guilt. Under the Federal evidence rules, even relevant evidence may be excludable, if it’s tendency to cause prejudice outweighs it’s probative effect, on some issue. That is why it was appropriate for Judge Ellis to “weigh whether the pejorative effect of the term oligarch’ outweighs its relevance to the outcome of any issue presented in the case.”
That said, when Judge Ellis rules on evidence, or blames lawyers for excessive zeal or, as reported elsewhere, reminds prosecutors that the crime charged is not being rich, the Judge is almost certainly, scrupulously, keeping it all away from the eyes and ears of the jury.
If anyone cares, my take on Manafort’s trial is that it is being presided over carefully by a Judge who is likely to take pains to see to it that a conviction stays put after Manafort’s inevitable appeal. Whether or not a jury thinks Manafort was funded by oligarchs and whether or not they dislike his lifestyle or fashion choices, the paper trail left behind in the reliable and totally admissible business records, of banks, enterprises and government agencies, will convict Manafort. His former partner, Rick Gates, will help put the cuffs on him, but, most likely, if Gate’s first trip to the witness stand goes well, he will serve Special Prosecutor, Robert Mueller, even more usefully, in other cases down the road.
Caveat. My practice was principally civil law, though that included considerable tax litigation. But I tried many civil cases in front of judges who also held criminal trials; both my criminal and my civil work included both prosecution and defense.