Prosecutors say a back and forth over an expert witness in front of the jury could have left a negative impression in their minds.
The federal judge overseeing the Paul Manafort trial conceded Thursday morning that he made a mistake in chastising special counsel Robert Mueller’s prosecutors a day earlier in front of the jury.
The federal judge overseeing the Paul Manafort trial conceded Thursday morning that he made a mistake in chastising special counsel Robert Mueller’s prosecutors a day earlier in front of the jury.
Addressing the jurors before prosecutors called their first witness of the day, U.S. District Court Judge T.S. Ellis said he “may well have been wrong” on Wednesday when he slammed the Mueller team for allowing an expert witness from the IRS to remain in the courtroom while other witnesses were testifying.
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Mueller’s team has been frustrated by repeated slapdowns from Ellis during the Manafort trial — now in its eighth day. Before court started on Thursday morning, they filed a written motion to formally protest how they had been called out over the IRS witness.
The Mueller team asked Ellis to explain to the jury that the prosecution had done nothing wrong and cited a transcript of the first day of the trial last week showing that prosecutor Uzo Asonye specifically asked that witnesses be excluded "with the exception of our expert and our [FBI] case agent." The judge and the prosecutor went on to discuss Michael Welch by name and his expertise. And the judge unmistakably approved the exception.
"The Court mistakenly faulted the government for permitting IRS revenue agent Michael Welch, the government’s expert witness, to remain in the courtroom during the proceedings, when in fact on the first day of trial the Court had expressly granted the government’s motion to do so," prosecutors complained in their motion. "The Court’s reprimand of government counsel suggested to the jury—incorrectly—that the government had acted improperly and in contravention of Court rules. This prejudice should be cured."
Ellis chastised Asonye in court on Wednesday moments after he called Welch to the stand. "It's my clear recollection....that I wasn't admitting experts," Ellis said. "You need to ask specifically. You're going to go ahead now, I'm going to permit that, but I want you to remember that."
You don't say that if you're a judge in front of the jury.
Asonye responded that prosecutors would "check the transcript," but it was their belief that they specifically asked for permission to allow expert witnesses like Welch to remain in the courtroom despite the usual prohibition.
"Well, let me be clear: I don't care what the transcript says," (1) Ellis snapped, before backing down a little. "Maybe I made a mistake.(2) But I want you to remember don't do that again. When I exclude witnesses, I mean everybody.(3) Now, it may be that I didn't make that clear."(4)
(1)As I read that, Ellis did not remember. That's a defensive reaction, "I don't care what the transcript says." As I read all of this, Ellis' mental powers have slipped, probably due to age.
(2) And there he shows awareness that his mental powers have slipped.
(3)But then immediately feels that he has diminished himself in front of the jury.
(4) And then back again.
If he just didn't do all of this in front of the jury. It may be that he forgets that the jury is there. One can do that. You don't have to be in your dotage. Athletes and celebrities frequently block out the crowd. Just "forget" there are other people watching them as they scratch themselves or pick their nose. Or it could be a conscious display of authority--Some judges do that!--or of favoritism. Obviously either of those is worse than forgetting himself. Ellis repeatedly has done this before to the prosecution in this trial and in pre-trial litigation. Judges whose mental powers are still keen are skilled at hiding their favoritism. There is no more blatant example of favoritism from the bench than chastising one side's lawyers. And this cake is baked. The government cannot ask for a mistrial or make a motion for recusal in the middle of trial (double jeopardy). This cake is baked and the government now has to eat it.
The judge's tone suggested he was disturbed by the prosecutors' actions, although he eventually declared, "It's not a big deal."
See, he caught himself. Of course he did "care" what the transcript showed on the point. But he didn't remember and all of this see-sawing is done before the jury. Ouch.
Addressing the jurors before prosecutors called their first witness of the day, U.S. District Court Judge T.S. Ellis said he “may well have been wrong” on Wednesday...“This robe doesn’t make me anything other than human,” Ellis told the court on Thursday morning after instructing the jury to forget what he had said to the Mueller team about the IRS witness. “You’ve got to put that aside.”
That's a bullshit cure. Absolute horeseshit cure.
The judge's slap at the prosecution on Wednesday over the expert witness issue was just the latest in a series of rebukes he's delivered to Mueller's squad in recent days over topics ranging from body language(5) to excessive informality to efforts to introduce visual imagery of Manafort's lavish lifestyle. The prickly exchanges have clearly begun to grate on the prosecution team, which has sometimes protested verbally in court, but did not formally lodge a written objection before Thursday.
(1) "Body language"? Probably head shaking at the judge's rulings. That is hard to control, boy! body language is hard to control.
On Wednesday, Ellis scolded prosecutor Greg Andres for responding to the court's questions with terms the judge considered too casual, like "yeah" or "yup."
That is easier to control. Fault on Andres. He should not have spoken like that to the judge. Is that verbal body language, i.e. the equivalent of a head-shake or shoulder-slump?
“Be careful about that,” he told Andres. “This is not an informal proceeding.”
Did Ellis say that in front of the jury, too? If so, Fault on Ellis.
Andres slipped up again moments later, offering a “yup” in response to another question from the judge.
“I beg your pardon?” Ellis intoned, his irritation evident.
“Yes, Judge,” Andres answered.
Maybe Andres is forgetting himself! Again: if this is in front of the jury, problem, BIG problem.
Ellis has sometimes faulted defense attorneys, but that has been more rare.
Yes. Duh! And that is the big danger: favoritism. I have only seen conduct from the bench like this once in thirty-six years of tilling in the fields of justice and that in my first year. Mueller team: Why you no ask for recusal before trial? Is you stupid or what?
