A federal jury of 12 men and women on Monday began deciding whether
the defendants are guilty of aiding in Madoff's massive fraud.
And the jurors face a Herculean task.
Over five months, they have heard more than 40 witnesses; the
transcript of the trial weighed in at 12,000 pages. The government
has introduced 1,600 exhibits, some of them hundreds of pages long.
Closing arguments alone lasted nearly 25 hours, spread across two
weeks. And U.S. District Judge Laura Taylor Swain's two sets of jury
instructions to help jurors understand how to apply the law to the
evidence ran an astonishing 250 pages. They took her more than eight
hours, with the judge finishing delivering them Monday and sending
the jury out to start deliberating.
The jury must eventually render a verdict on 31 separate charges,
some of which apply to more than one defendant.
Despite the voluminous record, experts said, the case turns on a
relatively simple question: did the defendants knowingly engage in
fraud, as prosecutors contend, or were they fooled by one of
history's greatest con men, as their lawyers argue?
"How likely is it that they knew nothing?" said Valerie Hans, a law
professor at Cornell University who studies jury behavior. "How
likely is it that they were blameless or duped like the other
victims of Madoff? The core issues are the kind of things that we
think juries are good at."
UNDER MADOFF'S SPELL
The five defendants — back-office manager Daniel Bonventre;
portfolio managers Annette Bongiorno and Joann Crupi; and computer
programmers Jerome O'Hara and George Perez — have argued that they
were tricked by the charismatic Madoff into unwittingly helping him
perpetuate the fraud.
Prosecutors have called that argument ridiculous, questioning how
the defendants, some of whom worked at Madoff's firm for decades and
backdated hundreds of fake trades, could possibly have been unaware
of the scheme.
Madoff, who is serving a 150-year prison sentence after pleading
guilty to the scheme in 2009, which cost investors an estimated $17
billion in principal losses, has said he acted alone.
With such a long trial, criminal lawyers said the closing arguments
will take on added significance as a guide for the jury.
"The summations are very important, because it's an opportunity for
them to focus the jury on what they want them to be thinking about,"
said Andrew Lawler, a white-collar defense lawyer.
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Perhaps underscoring that point, the defense lawyers took the rare
step of raising dozens of objections during Assistant U.S. Attorney
Randall Jackson's rebuttal last week, the last argument the jury
heard before beginning deliberations. Swain issued more than half a
dozen instructions to the jury at the defense's request clarifying
or correcting details in Jackson's recitation.
Every day for five months, Swain has also told the jurors to keep an
open mind and to refrain from discussing the case with each other or
anyone else until the deliberations begin.
But Hans, of Cornell, said that does not mean they will be starting
with a blank slate.
"My guess is in a five-month trial, the jurors have been integrating
the evidence into narratives," she said. "Now, after the judge's
instructions, they'll see which of these emerging narratives matches
the legal test."
RELYING ON EACH OTHER
In general, the jurors appear to have limited financial expertise.
None work in the financial industry; they include three teachers, a
building inspector, a custodian and a retired chaplain, among
Robert Anello, a white-collar defense lawyer, said he expected the
jurors would rely on each other to recall important details from the
trial, with the lawyers' arguments serving as an aid.
"There's no way they're going to sift through 1,600 documents,"
Anello said. "But they're going to focus on things that are
important and talk to each other."
Even the most conscientious jury, however, would likely find it
impossible to remain attentive for more than 60 days of testimony
and argument. Several jurors have occasionally appeared to fall
asleep, including during some of the summations.
"A juror would have to be Superman not to sleep at times during a
five-month trial," Anello said.
The case is USA v. O'Hara et al, U.S. District Court, Southern
District of New York, No. 10-cr-0228.
(Reporting by Joseph Ax; additional reporting by Nate Raymond;
editing by Marguerita Choy)
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