A COVID-19 Trial
The pandemic has had significant impact on the trail of criminal cases in our Federal Court. There were far fewer of them, and adjustments were required. This is an account of one of those trials.
Forty-six years ago, I had the privilege of watching the legendary Ted Koskoff get a not guilty in Federal Court in New Haven. It was tried in the historic second floor courtroom. The beloved Peter Dorsey was the prosecutor, Jon Newman the Judge. Nine defendants were represented by stars of the Connecticut Criminal law galaxy defending an arson prosecution resulting from the explosion and fire of the Sponge Rubber Products Company in Shelton. I was second chair to then U.S. Attorney Dorsey. It was a big deal at that time, then one of the biggest arsons the ATF had ever investigated. It became a font of countless stories, some even true, and too many to recount here. The facts were wild; the defendants colorful; and the lawyers skillful. It was known as the Sponge Rubber Case and became part of the lore of Federal Court.
There is one story, though, that’s worth telling here. What was the most exceptional part of the trial was that the lead defendant, the owner of the plant, was acquitted because of a brilliant and ballsy strategy conceived and executed by Ted Koskoff. Somehow Ted had hidden the lead defendant and caused the jury to focus on the scallywag arsonists, not on the alleged mastermind. As a second chair, I had a front row seat.
Recently, in December of 2021, I represented a defendant in that same courtroom. The case was U.S. v. Rankin, et al. It was a multi-defendant white-collar criminal trial. There were five defendants, each represented by at least two lawyers. The charges resulted from their allegedly illegal use of company funds for trips to the Kentucky Derby and the Greenbrier golf resort in West Virginia. The crime alleged was that the company had received federal funds and the trips were for personal gain, not legitimate company purposes.
This case was, in its own way, also a big deal. It was the first multi-defendant federal trial in the district since the pandemic. COVID-19 required all the participants – judge, staff, jurors, witnesses, lawyers and defendants – to wear masks. The courtroom had to be reconfigured. The spectator benches were removed to the hallway. All three courtroom doors were kept open for ventilation and the public could watch the forensic waltz on a closed circuit feed on large monitors in the hallway.
Eight jurors were sprinkled at social distances in the jury box; the remaining four plus four alternates all socially distanced, seated at folding tables at overflow tables that replaced the benches in the left rear corner of the courtroom. Four folding tables replaced the benches on the right rear of the courtroom, two rows of two tables, end-to-end, each occupied by one defendant flanked by a lawyer on each side. Each table has a small monitor for display of scanned written exhibits. Everyone was masked except testifying witnesses and lawyers questioning, addressing the Court or arguing to the jury. The large palladium court windows were, despite the cold, kept open with, at times, their maroon drapes unfurling like the sails of a frigate in a Horatio Hornblower saga. At one point, in fact, one of the jurors wore a hoodie to adjust for temperature more fit for a hockey rink than a courtroom.
Jury selection began on October 26 and lasted for two full days of morning and afternoon sessions. At each of which 30 unmasked potential jurors were interviewed from a social distance individually in Judge Dorsey’s former first floor courtroom. They were questioned mostly by the trial judge, Judge Meyer, with occasional questions by defense lawyers. The obvious were excused for cause. That led to a third day in which peremptories were exercised and a masked panel of 12 plus 4 was selected.
Evidence began on Monday, November 1. Court opened on that day and each succeeding day with an 8:30 call at which issues were addressed outside the jury’s presence. Jurors came and evidence began at 9:00 a.m. Day one was brief opening for the Government and for each defendant. Lots of exhibits projected on monitors. Lots of what used to be called “reading from a document already in evidence.” But that’s apparently the new way.
The flow of the case was interrupted after a week by a COVID problem. First, on the Tuesday before Veteran’s Day, late at night, one defendant learned a relative he had been exposed to had contracted COVID. The Court was notified, and at 10:30 p.m., advised us that Wednesday was off, and the trial would resume on the Friday after Thursday’s holiday. But not so fast. On Veteran’s Day one defense lawyer learned he had COVID. That resulted in essentially a 10-day recess from Tuesday, November 9 through November 15. Fortunately, the lawyer was fine, but the interruption generated more billable hours, more paperwork and heightened agita and stasis. Ultimately, we resumed and continued our daily readings.
By the end there had been, not surprisingly, hundreds of exhibits projected; many witnesses, mostly for the Government; and two of the five defendants had testified. After leading with the jury charge up front, closing arguments took two days, first an hour and a half by the Government, then five defendants for approximately an hour each, followed about an hour and a half Government rebuttal.
There were three counts for each defendant: one conspiracy count and two substantive. Jurors began deliberating late in the day on Wednesday, December 8. They returned verdicts late in the afternoon on Friday, December 10, quicker than we expected. A long trial now followed by tension, false bravado and anxiety. As the jury entered, the usual occurred. Lawyers focused on jurors to see if any would signal the result. None did. Tension mounted. Judge Meyer asked whether a verdict had been reached. The foreman said yes. The Clerk got the verdict form. She gave it to the judge. He read it. He returned it to the Clerk. She began to read.
That’s when the rollercoaster takes off. I’d forgotten how verdicts are read in multi-defendant, multi-count trials. The Clerk reads the verdict by each count for each defendant in sequence: Defendant #1 Count One: Verdict; Defendant #2, Count One: Verdict; and so forth. My client was Defendant #4. Things began well. As to Count One, not guilty for all. A figurative and actual sigh of relief. Things look good. Defendant #1, Count Two: not guilty. And not guilty for all on that count. Things are looking even better. But then, reality. Defendant #1, Count 3; Guilty; Defendant #2, Count 3; Guilty; Defendant #3, Count 3; Guilty. And my client? Defendant #4, Count 3: Not Guilty. Praise Jesus! And the same for Defendant #5.
There follows a succotash of conflicting emotions. For those convicted there is anger, befuddlement, dismay, sorrow, concern and above all, disappointment. For those acquitted – my client was one of the lucky ones (why else would I be writing this) – there is relief and joy tempered with concern for our fellow travelers and a recognition that hi-fiving in front of those found guilty would be inappropriate. And also, a resentment that we had had to endure this long, slow, stressful and painful process, knowing that we had done nothing wrong but watching our co-defendants stung by a verdict we felt was unjustified. It still takes some sorting out.
For my part, and I guess the reason why I set all this down, this was a lesson learned nearly a half of century after it was taught. My client got the verdict he deserved by hiding in the courtroom. That is what Ted Koskoff taught me nearly half a century earlier. I realize, of course, what we accomplished for our client was not even close to what Ted had done. He had represented the lead defendant, the top of the pyramid, and somehow, miraculously, hid him in the courtroom. My client was easy to hide. He was lower on the indictment. The evidence scant. The total time I spent on my feet talking to either a witness or the jurors in this six-week trial was less than two hours. I did a twenty-minute opening; cross-examined two witnesses for about forty minutes; and did a closing of forty-five minutes. (I did have the unique experience of giving a closing argument on my eightieth birthday for an eighty-year-old client.)
Of course, I can’t and won’t quarrel with the result. I’ll take credit for applying the lesson I was taught. We were able to present our client and his actions as insignificant and irrelevant. I had learned that sometimes it’s the things you don’t say and the things you don’t do can get you to the right place. This was one of those times.
Thank you, Ted Koskoff.
