Sheila Markin is a former Assistant US Attorney.  She helps people to understand in plain English what is going on in US politics today.  Subscribe to the blog so you don’t miss a post!

For anyone who was hoping that the Manafort case would be a nice tidy case in which the president would be called out as a liar and shown to be involved in a cover up of a big conspiracy with Russia, with witness after witness standing up for truth and justice, by now, you might be feeling a little let down, a bit edgy, or nervous.  Because that is NOT happening in this case.  And it won’t.

The judge seems to be picking on the prosecutors, too.  What’s that all about?  The prosecution’s chief witness is a big scumbag, Rick Gates, who is admitting to having committed a lot of crimes himself even while he implicates Manafort.  And the president’s name is not even allowed to come up.  He who shall not be named.  Rudy, Hannity, and Trump can all still dance around with their little pitchforks and run a victory lap because the president is not implicated in this trial.  And that is so because that is not what this trial is about.   

Despite that, I am going to try to set your mind more at ease about what is going on here based on my experience having done about a dozen jury trials as a former Assistant US Attorney handling criminal cases in Chicago. 

First, pretty much everything is ok.  The case is going in reasonably well.  The prosecutors are doing a good job of setting up the pertinent evidence they will use to tell the story of what happened with Paul Manafort and Rick Gates and how and why and what Manafort did that broke various laws. 

The way prosecutors build a case is to start by understanding the relationships between the players, usually, co-conspirators and how the paper evidence fits in.  The rule of thumb is to work the case against a target, here, it is likely to be the president (and his close family and cohort), starting with the bad guys he hung out with.  You look at their activity first, because if you find criminal acts they committed, they can be used to pressure the people associated with the target to come over to the side of the prosecution and tell the truth to the FBI or the jury by turning state’s evidence. 

In this instance, we assume Paul Manafort knows a lot about what the president knew and when he knew it.  And Manafort committed many crimes.  So, he could be the perfect person to build a case against with the hope that he will turn state’s evidence.  The case against him is strong, but Manafort has not come over to the prosecution.  Yet.

And the prosecution may have decided they would not want him even if he did offer to help them, because you might remember, he was caught trying to get witnesses to lie to the FBI.  Manafort is such a scumbag, he may be too slimy to try to work with even if he wanted to come out of the cold and help the prosecution by turning state’s evidence.  Since he is not a cooperating witness, he is being tried.  Gates did decide to turn state’s evidence and that is why he has been testifying in this trial. 

The Mueller team consists of FBI agents and prosecutors.  They work together building the case, gathering the paper trail and the evidence from witnesses by doing interviews of the witnesses.  By the time these agents and lawyers have developed the case enough to indict, they know close to everything there is to know about what went on, who did what, and how these crimes were committed. 

The prosecutor figures out the presentation of evidence for the jury almost, you could say, like a producer for a TV show.  In the Manafort case, there is a lot of very dry information, papers and documents that must be entered into evidence which is a tedious process.  You are sometimes required to establish chain of custody, a boring recitation of who had control of the document and who had it next etc. unless opposing counsel stipulates to chain of custody.  Usually when the jury listens to this part of the trial, some of them fall asleep.  We used to call these jurors “sleepers”.   It was so boring at times even the judge would nod off on occasion.  I wished I could take a nap too, but I couldn’t because I was the one establishing the chain of custody.  

In this case, however, the prosecutors started the trial off in a pretty splashy way, with evidence that Paul Manafort was livin’ the life with his ostrich jackets and expensive suits and fancy hedges carved with his initials.  They established that he was able to live that way because he had various arrangements working for Russians who were taking over Ukraine.  Manafort was advising Rinat Akhmetov, and Oleg Deripaska and other oligarchs, who are all Putin’s buddies. 

But the job and all that money comes to an end when Ukrainians rebel and kick these Russians out of their country.  The oligarchs return to Moscow where they are probably sulking and palling around with Putin and the other oligarchs and railing against the sanctions imposed by the US.

But Manafort is in trouble as a result.  He needs money to maintain his lifestyles of the rich and famous to which he has become accustomed.  What is he going to do?

He decides to try to pal around with another grifter, Trump, who is running for president.  He offers to be Trump’s campaign manager.   For nothing.  No pay.  Wow, what a deal for Trump!  Right? How can he pass that up?  Trump says yes to this too good to be true deal.  Although hiring a known grifter to be your campaign manager might give pause to someone with higher morals and ethics. 

While working on this campaign, Rick Gates joins Manafort.  Gates knew Manafort even before the campaign when Manafort was working with the Russians.  Because Gates is a scumbag like Manafort, he participates in a bunch of criminal activities and even steals FROM Manafort.  He confesses all of this on direct examination by the prosecutors. 

As part of his plea deal Gates must tell the truth, the whole truth and nothing but the truth.  If he shades it or lies, he could lose his deal and could even go to jail for a longer period of time.  That’s how prosecutors can put dirtbags like Gates on the stand and get them to be honest.  These guys will lose everything if they lie.  And they know that.  They have every incentive to tell the truth.  Prosecutors also have corroboration for everything the witness is testifying to.  That supporting documentation bolsters the credibility of a dirtbag witness.

Prosecutors do not get to choose the witnesses they present in a trial.  They are stuck with the low-lifes that the defendant pals around with. Those are the guys who know what happened, heard everything, saw everything, did the bad stuff along with the defendant, and can tell the jurors what the defendant did.  It’s not like you get Marian the librarian or Mother Teresa to put on the stand.  Mostly you get a bunch of bad actors and criminals who broke the law right along with the defendant and were part of the conspiracy themselves along with a bunch of bank representatives and record keepers you need to establish that chain of custody you need to get records into evidence.

By the time the prosecutors in the Manafort trial rest their case in chief, they will have entered into evidence everything they need to make their closing argument.  The closing argument is where it all comes together for the jury. 

The defense will use the same facts to argue something very different.  In this case, the defense has said in its opening statement that it is going to try to pin everything on Gates.  Gates did all the bad stuff.  Gates was the bad guy.

That is going to be hard to do because there is already ample evidence and witness testimony about what Manafort did.  The paperwork alone will show Manafort had control of the money.  For example, it was Manafort who approached the banker in Chicago to offer him a job in the Trump administration as Secretary of the Army in exchange for a huge loan of 16 million dollars.  Gates didn’t do that.  It will be hard for the defense attorneys to prove up the defense they alleged in their opening statements- that Gates was the evildoer and Manafort was clean as the driven snow.

So, let’s talk about the judge now.  This judge has been mercilessly hassling the prosecutors. He told them they could not use the word “oligarch” to describe the Russian oligarchs in Ukraine.  The judge upbraided the lead prosecutor, a seasoned trial lawyer, for looking down.  “Look me in the eye,” he said.  Huh?  What’s with that?  And then he also claimed he detected that the prosecutor was crying “Are you crying?” (He wasn’t), but the judge persisted in characterizing the prosecutor as tearful. 

That was not all.  The judge also made a comment on a matter of law that was apparently out of bounds and might linger in the minds of the jurors who are going to have to decide if the defendant committed particular crimes based on the evidence they heard and the jury instructions which will tell them the law that they are to match up with the crime.  The judge upbraided the prosecutor for spending time questioning a witness about a loan.  The judge said,

”You might want to spend time on a loan that was granted.”  That was the judge interjecting his opinion on a matter of law and that was not okay. 

And one more infraction I know of by this judge, was that he got mad at the prosecutors for allowing a witness, an agent, to sit in the courtroom after he had testified.  That is generally not allowed for a witness to stay in the courtroom after testifying unless a judge determines it is ok.  In this case the judge HAD said it was ok for him to remain in the courtroom.  He just forgot, apparently.  But why ream out the prosecutor for his own pernicious memory failure?

Why is Judge Ellis being so hard on the prosecutors?  And will it ruin the case for the prosecution?

In a number of trials that I had in federal court, judges would make comments that were really uncalled for.  It did not happen a lot, but judges are just people and some of them are quirky people. 

One time a female judge reamed me out in front of the jury for failing to conduct a direct exam of a witness in a way that she thought would have been better.  When a judge calls you out in front of the jury, it is very awkward.  You do not want to contradict or argue with the judge; the jury is watching your every move.  You can ask to go sidebar.  I did.  We went to chambers for that argument, in fact. And we hashed it out outside of the hearing of the jurors. 

But there are quirky judges out there.  And they get bored sometimes and sometimes they might wish they could be trying the case instead of having to put up with the lawyers in their courtrooms getting all the action.  Nonetheless, Judge Ellis needs to be more careful about what he is saying in front of the jury.

Already in two instances in the Manafort trial, the prosecutors have entered motions for the judge to correct the record in front of the jury.  The judge complied in one of the instances.  He apologized for incorrectly chastising counsel for allowing the agent to stay in the courtroom.  But this judge really is out of line.  He is possibly prejudicing the jury against the prosecutors.  The prosecutors do need to push back.  They are doing that in court, speaking up.

Another way the prosecution can try undo the potential bias created by a judge is to ask the judge to allow a jury instruction that helps to undo the damage.  In this case I am certain the prosecutors will do whatever it takes to be sure the judge’s words are not creating doubt in the minds of the jurors.

A reason that Judges are sometimes harder on prosecutors can be that there is generally no appeal if the prosecution loses the case and the defendant is found not guilty.  But if the defendant loses and is found guilty, there will usually be an appeal.  And in this high-profile case, there DEFINITELY will be an appeal.  Judges do not like their rulings overturned by appellate courts.  It looks bad for THEIR record as judges.  So, they stay away from harassing the defense.  If they feel crabby and bored, they are more likely to take out their frustrations on the prosecutors.  That’s just my opinion here.  And Judge Ellis has a track record of being difficult with the lawyers in his courtroom.  He has been known to say, “I’m a Caesar in my own Rome.”

The evidence in the Manafort trial is going in well despite some of these difficulties.  There was also a 5-hour recess on Friday that might have had to do with a concern about the jury.  Who knows for sure?  Perhaps a juror was asked a question by a reporter and responded in some way.  It could be something as innocuous as a reporter saying: “Hey, how is the trial going?”  and a juror responding: “Fine!”  That could easily set off five alarm fire bells for defense attorneys. It did in one of the cases I tried.  In the Manafort trial, the judge apparently went back to the jury room and he also re-warned the jurors not to talk with anyone.  We will probably find out what happened but not right away.  Whatever it was it did not derail the trial.  We know that because the defense did not demand an immediate mistrial.  The trial resumed.  And more witnesses testified.

Even though the evidence is strong and going in well, juries are funny things.  There only needs to be one hold out, one person who refuses to agree that Manafort is guilty beyond a reasonable doubt.  It is a high standard of proof in criminal trials and the verdict needs to be unanimous. 

Let’s hope these jurors are fair-minded people who take their oath seriously and decide guilt or innocence based on the evidence and the facts they hear in this case and not on any political bias.