Is Manafort's Judge Influencing Jurors
LEMON: Jurors in the trial of former Trump campaign manager Paul Manafort, the chairman, Paul Manafort, wrapped their second day of deliberations today without a verdict. They'll be back on Monday. There are concerns that the unusual behavior of Judge T.S. Ellis may influence jurors. I want to bring in now Michael Moore, a former U.S. Attorney, also Nancy Gertner, a former Judge and Harvard law professor. Good evening to both of you. We will get to the Manafort stuff, Michael, but I want to ask you about the Special Counsel, Robert Mueller's recommending six months in jail for former Trump campaign adviser George Papadopoulos. They say he made false statements to them about a man, wanted in their investigation which allowed him to leave the country. So, what do you make of this?</s>MICHAEL MOORE, FORMER U.S. ATTORNEY FOR GEORGIA: You know, it's been interesting to see what kind of plea recommendations the Special Counsel's office would make. I'm not surprised at all, certainly in an investigation like this, that they're sending a message they will not tolerate somebody obstructing the investigation. That is essentially what they're saying.</s>LEMON: Is this standard?</s>MOORE: Well, for lying to an officer or a federal agent, sure. It would be normal at some point for them to ask that there be some jail time. It sends a message to the court, but also send a message to each person that is down the road that has yet to be interviewed by the officer.</s>LEMON: All right. So, Nancy, let's turn now to the Manafort trial. In your piece for the "Washington Post," you write this about Judge T.S. Ellis, and you said, during the trial, Ellis intervened regularly, and mainly against one side, the prosecution. The Judge's interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution's evidence, misstated the legal theories, and even implied to prosecutors had disobeyed his orders when they had not. How unusual is this kind of behavior in court? And is the prosecution saying anything about it, complaining about it? Do they have any repercussions?</s>NANCY GERTNER, FORMER FEDERAL JUDGE: Well, it is very, very unusual. I mean, most of the time, we're all admonished to be fair, to be impartial. If you have something to say to one side or the other, you excuse the jury. You know, most of what you have to say during the course of a trial is, move the case along. You know, this is -- you're repetitive. You're not saying, I don't believe in your legal theories. You're not saying, you're asking the wrong questions. You're not saying, you disobeyed orders of the court, when they didn't. The problem here is that the prosecutor really has no recourse during the trial. If Manafort is acquitted, then the prosecutor -- there is no appeal. Double jeopardy stops any further proceeding. If Manafort is convicted, what -- the judge's tilting against the prosecutor would have made no difference. Because the defense can't possibly argue that hurt them, when it clearly helped them. So the government has no recourse, which is what was troubling to me.</s>LEMON: Interesting. And Michael, no one can say to this Judge, listen, Judge, act like a Judge and not like an activist?</s>MOORE: You would hope that when he took the bench, that that was his intention. I mean, you know, every lawyer just wants to try his or her case.</s>GERTNER: Right.</s>MOORE: You have great respect for the judge to be able to move the case along. It is fine. I have no qualms with that. What I do have, and I agree with my judge friend here, you know, you don't need a judge comment on things about the merits of the case in the presence of the jury.</s>LEMON: Especially having to apologize. Because he had to apologize at one point, that he berated prosecutors and he had the wrong information. He was wrong. The question is, is that going to stick with the jury?</s>MOORE: Well, it is like trying to un-blow the foghorn.</s>LEMON: Right.</s>GERTNER: Right.</s>MOSBY: It is out there. They've heard that. It is a lot like telling somebody, the defendant doesn't have to take the stand. That is great to tell them that. That may be the law, but guess what? When they don't take the stand in the back of the jury's mind, they're thinking, why didn't they get on the stand and testify? It is just a fact. It is out there, and they can't pull it back in.</s>LEMON: How much influence Nancy, do judges have on jurors? Go on.</s>GERTNER: They have enormous amount of influence on jurors. I mean, most of the studies, it is very -- I mean, I knew the influence I had on jurors. Because they would come afterwards and thank me for, you know, guiding them, giving them instructions, you know, helping them out, making sure people ended the trial when they were supposed to. But in studies that were done on judges' subtle cues, the kinds of subtle cues that judges did, usually anti-defendant, it made a difference. So, one can only imagine what less than subtle cues, the kinds of overt statements that this guy is making, can do to the jury. It could have -- it certainly could backfire. But more often than not, it actually affects the jury. Because it legitimizes one side rather than the other.</s>MOORE: That is right.</s>LEMON: President Trump is weighing in on the trial today. I want you guys to listen to this.</s>DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I don't talk about that man. I don't talk about that man. I think the whole Manafort trial is very sad. When you look at what's going on, I think it is a very sad day for our country. He worked for me for a very short period of time. But you know what? He happens to be a very good person. And I think it is very sad, what they've done to Paul Manafort.</s>LEMON: So, he says he doesn't want to talk about the pardon for Manafort, but is he laying the groundwork for one of his -- the groundwork with his comments, Nancy?</s>GERTNER: Well, I mean, he could be laying the groundwork for a pardon. A pardon is actually quite complicated. Because a pardon would relieve Manafort of any legal jeopardy and would therefore make him oblige to testify. So pardon is actually really rather complicated in this situation. The worst situation is even though the jurors are not supposed to be watching television, watching this program, if it gets back to them what the President said, it is unbelievably -- I mean, it is outrageous that he would have commented on a pending case in this way. That is flat out wrong.</s>LEMON: I mean, do you actually think the jurors don't do that? They're told not to, but I'm just saying. I don't know. It's hard to avoid sometimes.</s>GERTNER: Right. I was a defense lawyer for many years and then a judge. You'd be surprise how seriously they do take.</s>LEMON: Not saying they don't take it seriously. But sometimes it is hard to avoid. I mean, if you're in the Walmart and there is a TV section, sometimes it's on the news. If you're riding in the car with someone, or even if you are just listening to the radio at the top of the hour, they're like, oh, here's the news at the top of the hour. I'm just saying it is hard to avoid sometimes.</s>GERTNER: Well, it is hard. And they turn on their computer, and they wind up with a news feed.</s>LEMON: Right.</s>GERTNER: Certainly it is. But what I found, that there is a lot of times, jurors would come to you and say, by accident, I read the headlines.</s>LEMON: Right.</s>GERTNER: That said something about what they were trying to do. Surely, it's become harder and harder to be able to do it.</s>LEMON: So, Michael, Monday will be day three of jury deliberations.</s>MOORE: Right.</s>LEMON: What does it mean for the prosecution, if they deliberate for several days?</s>MOSBY: You know, this was a complex case. Paper cases are. There were about 18 counts they were charged with. And I think the jury is probably taking its time to look at the indictment and try to match what evidence they heard in the trial with the charges laid out before them in the indictment. I don't think a three-day delay is any particularly long period of deliberation, especially in a case like this. It is rather complex. I mean, you don't have jurors who are tax accountants or tax lawyers on there who are familiar with things like shale companies, reporting requirements and that type of thing. And so, I don't think there is a great, great bit of emphasis we ought to place on the fact they've been out three days. There was an enormous amount of evidence in this case to prove Paul Manafort guilty. I still expect that he'll be found guilty. You may have somebody in there hanging up, you know, with one of the questions about reasonable doubt. Makes me think that there could be somebody in the jury room saying, I don't think they proved or disproved all possible scenarios. Sometimes, they'll ask for a recharge on something like reasonable doubt. So, you know, we'll see after Monday. If I were Paul Manafort, I wouldn't be packing up my bunk in the federal pen right now, ready to head home.</s>LEMON: Thank you, both. And Michael, you didn't mention Little Loisy (ph) this time.</s>MOORE: Well, I would say that I am not sure that the Judge would be good traffic court judge, in Little Loisy (ph) Georgia. Even with the kind of conduct that he has had on the bench there, so.</s>LEMON: You got it there, Mike. Nancy, it was a pleasure, thank you. You both have a great weekend.</s>GERTNER: Nice to meet you.</s>MOORE: Good to see you, Don.</s>LEMON: When we come back. Who is the real Melania Trump? We are going to dig into all the times the first lady stood by her husband and all the times she definitely did not, next.