Courts

Should Manafort Prosecutors Request A Mistrial?

Let's put it like this: if Judge Ellis were acting this way against the defense, they certainly would.

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(JIM WATSON/AFP/Getty Images)

The end of this week at the Paul Manafort trial has seen U.S. District Court Judge T.S. Ellis III cross the line from acerbic yet impartial ruler to co-counsel for the defense.

The flashpoint happened between Wednesday and Thursday. On Wednesday, Judge Ellis lambasted the prosecution, in front of the jury, for allowing their expert witness to be in the courtroom to listen to other testimony before offering his own. I am told that this is generally not done, though I cannot cite the specific Law & Order episode where this was an issue. But I do understand that such lashings are usually given out at the bench, or in chambers. It’s unusual for a judge to bash a side for a violation of norms in front of the jury.

It’s also unusual for the judge to be completely freaking wrong about the thing he’s inappropriately yelling about in front of the jury. But in this case, the prosecution had specifically requested that their expert be allowed to listen to testimony in the courtroom, and Judge Ellis agreed.

Now, I’m a parent and I have certainly told my kids, “Sure, you can have the iPad… didn’t I tell you to get off the damn iPad?” within three minutes of each other. Life comes at you fast. But my house is not a place of justice.

Judge Ellis tried to correct his mistake on Thursday, and it was woefully inadequate. From the Washington Post:

On Thursday morning, the judge told the jury, “I may well have been wrong,” adding that he had not read the court transcript. “I was probably wrong,” he said.

“This robe doesn’t make me any more than a human,” Ellis said, concluding, “Any criticism of counsel should be put aside — it doesn’t have anything to do with this case.”

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But that’s not the only thing Judge Ellis has done that is “probably wrong.” He has repeatedly characterized the prosecution’s evidence. After a long and, fairly boring, exposition of Manafort’s fraudulent attempts to secure a loan, a loan that was ultimately denied, Ellis suggested that the whole testimony had been insignificant:

“You might want to spend time on a loan that was granted,” the judge scoffed as prosecutor Uzo Asonye sat down after concluding his questioning of Citizens Bank employee Taryn Rodriguez.

Ellis also cut off the prosecution’s explanation of Manafort’s lavish (and allegedly tax-free) lifestyle.

“The government doesn’t want to prosecute somebody because they wear nice clothes, do they?” Ellis said when the government elicited testimony that Manafort had spent more than $900,000 on fancy clothing, including an ostrich jacket. “Let’s move on.”

Some of Judge Ellis’s apparent bias against the prosecution is undoubtedly a result of the “rocket docket.” This piece does a great job of explaining the speed with which the Eastern District of Virginia operates. There’s also the issue that right now the prosecution is putting on their case. When it’s the defense’s turn, maybe Judge Ellis will be just as opinionated and wrong about the defense’s case.

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But if Judge Ellis does act this way towards the defense during their presentations, they’ll probably be seriously considering requesting a mistrial.

Now… prosecutors usually don’t ask for mistrials. Once you’re ready to bring a case, time is not usually on your side. And if you are putting on a criminal case, there’s always a chance that if defense opposes the mistrial, and it is granted anyway, the defense can argue that double jeopardy prevents the state from putting the defendant on trial again. U.C. Hastings law professor Rory Little makes plain how dangerous a mistrial could be:

[I]t would be double jeopardy if [a mistrial] were granted over a defendant’s objection, unless an appellate court found there was “manifest necessity” for the mistrial. Judicial error is usually NOT “manifest necessity,” unless the defendant requests the mistrial (in which case the double jeopardy problem is “waived” or consented to.

To get a mistrial on these facts, without attaching double-jeopardy, you’d also have to convince an appellate court that Ellis’s mistakes have been so egregious that they could not be corrected by a jury instruction. Personally, I think corrective jury instructions are actively useless. But our stupid system of justice relies on the legal fiction that you can tell people to “disregard” some mess they actually heard, and they’ll say, “Okay boss. I totally don’t remember that thing you told me to forget.”

I don’t think the prosecution will get a mistrial, and if they could, I’m not sure they’d get a second crack at Manafort in Virginia.

But Judge Ellis is doing a bad job. He is participating in the defense, instead of merely presiding over it. If Ellis were acting like this against a Trump ally, the president would be tweeting about how he should be deported.

If Manafort walks, Judge Ellis’s behavior will be another nail in the coffin for the notion of judicial impartiality.

It would all be very depressing, but for… Maryland, my Maryland.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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