Another Take on Jude Verdict

I am not an attorney, so I am not in a position to go back and forth with all the details of the three week Jude trial. Or pontificate on how I would have tried the case.

However, I will share Jeff Wagner's perspective.

A former US Attorney, Wagner knows of what he speaks when it comes to prosecuting tough cases...

First, this was a very difficult case from the outset. No one disputes that Frank Jude Jr. was assaulted. The question though was always whether the State would be able to prove beyond a reasonable doubt that it was the specific defendants that were the ones responsible.

Frankly, this case was a prosecutor's nightmare from the beginning. Most of the witnesses had been drinking - making their testimony questionable under the best circumstances. Many of the witnesses -including several on-duty police officers - were reluctant to cooperate against their fellow officers. With all the confusion that went on that evening, many other attendees were probably legitimately not in a position to see what occurred ("code of silence" or not).

In other words, it all added up to a tangled mess from which the jury had to sort out who did and did not do what. Viewed in this light, it's not surprising to me that they were unable to agree that these three defendants had been proven guilty beyond a reasonable doubt.

Second, I honestly believe that the presentation of portions of the case to the jury was inept at best. For the life of me, I don't understand why the prosecution spent days putting on witness after witness who either didn't see anything or who contradicted the testimony of their star witnesses.

I realize that DA McCann was trying to show that there was a "conspiracy of silence". The problem though is that this wasn't the issue at trial. Rather, the issue was whether or not the State could prove that these three guys were guilty. Putting on witness after witness who didn't see them do anything wrong hands the jury reasonable doubt on a silver platter.

Hindsight is twenty-twenty, but here is how I would have tried the case. I would have called Frank Jude Jr., his treating physician, one or two witnesses to set the scene and Officer Nicole Balmore. I think almost everybody else hurt the prosecution of these three defendants more than they helped. Finishing the case with Joseph Schabel (the officer who arrived on the scene and admitted to punching Jude himself) was a truly terrible decision. I'm sure many jurors wondered why Schable wasn't on trial himself (a good question, I might add).

His experience as a federal prosecutor is particularly important when he writes:

In the aftermath of the "not guilty" verdicts, much is being made of whether the U.S. Attorney's Office will consider presenting this case to a federal grand jury. I think people who are expecting federal charges anytime soon against these three defendants need to take a couple of major steps back.

The Double Jeopardy Clause of the Fifth Amendment says that a person can't be tried twice for the same crime. However, since the federal government is a different "sovereign" from the State of Wisconsin, in some cases federal charges can be brought against a person even if they were acquitted in state court for roughly the same acts. The condition to this is that there be an element to the federal crime that is different from the state crime the defendant was acquitted of.

Title 18, United States Code, Section 242 makes it illegal for someone "under color of any law" to deprive someone of their rights under the Constitution. I suppose the U.S. Attorney's Office could look at this case to decide whether the off-duty officers were acting under color of State law when they allegedly assaulted Mr. Jude. A similar sort of theory was used to prosecute those responsible for the Rodney King beating after the defendants were acquitted in State court.

The problem is that it is rare (Rodney King notwithstanding) for the federal government to essentially retry a case that the State lost simply because some people don't like the verdict.

A solid take, from someone who knows the game from the playing field.