One side must give in push-and-pull between Manafort judge and prosecutors

Federal prosecutors are trying to prove “beyond a reasonable doubt” that former Trump campaign chairman Paul Manafort committed a range of serious tax and bank fraud crimes; no small task. Aggressive defense counsel, difficult witnesses and 12 jurors who may know little about the criminal justice system all pose serious challenges, even for seasoned prosecutors. And, with the eyes of the country focused on the results, the pressure is ratcheted up exponentially.  

That is why the seemingly open warfare between the judge and prosecutors may present an opportunity for the defense.  Judge T.S. Ellis III, a 30-year veteran of the federal courthouse located in Alexandria, Virginia — affectionately known as the “Rocket Docket” for its speedy trials — has launched blistering attacks on prosecutors for what the judge perceived was disrespectful conduct and failures to meet his demanding schedule. Reports are that Judge Ellis criticized a prosecutor for not making eye contact with him, saying, “Look at me,” and suggesting that the prosecutor “looked down as if to say, ‘That’s BS.’”

{mosads}Judge Ellis also has injected himself into the trial in a way that is highly unusually and extremely prejudicial to the government.When former political consultant Rick Gates testified that Manafort was heavily involved in his own finances, Judge Ellis improperly responded that Manafort obviously was not that involved because Gates was able to steal from Manafort.

The attacks have even become personal. Judge Ellis said to a prosecutor, “I understand how frustrated you are. … In fact, there’s tears in your eyes right now.’’ When the prosecutor protested that he didn’t have tears in his eyes, the judge shot back: “Well, they’re watery.”

To be fair, some of these exchanges took place outside the jury’s earshot, but many did not. And, prosecutors have not been shy about pushing back on Judge Ellis.  

Having tried scores of cases during my 13 years working as a federal prosecutor in the Clinton, Bush and Obama administrations, and an additional nine years working as a white-collar criminal defense lawyer, I have found myself in numerous pitched battles with judges and watched countless other lawyers do the same. The result was almost universal: the judge won.  The courtroom is the judge’s kingdom, and any effort to undermine or challenge that authority is oftentimes met with swift and harsh justice, including rulings that can seriously damage a case.

Another truism is that jurors look to the judge as the all-knowing, elder statesperson. When a judge sustains an objection against a prosecutor, jurors often take a negative view of the government. When a judge outright attacks a prosecutor, especially in a personal way, jurors can get the impression that the government is not playing fair.  

Jurors above all else expect prosecutors to play by the rules. Any sense that a prosecutor is trying to pull a fast one, or be less than forthcoming, can be the death knell for the government.  Negative signals or outright attacks from a judge can quickly lead jurors askew. So, more often than not, the best course for prosecutors is to grin and bear such attacks, and focus on the presentation of evidence.       

There are times, however, when even a judge can go too far. Personal attacks, commenting on witness testimony, and overly broad restrictions on evidence can reach a point where a prosecutor feels it necessary to stand up to the judge; if for no other reason, to make it clear that he or she will not be pushed around. In such circumstances, the prosecutor must maintain professionalism and always be respectful of the judge. If done correctly, and the judge continues to berate the government, jurors can actually empathize with the prosecutor, giving the government the benefit of the doubt on evidence and thinking that, had the judge been fair, there may have been even more evidence of guilt.   

The difficulty for prosecutors is walking the fine line between standing up to the judge and challenging the judge’s authority. The latter never works.  

Judge Ellis clearly believes he is doing a service by constantly demanding that prosecutors focus their case more narrowly. And, oftentimes, prosecutors become too enamored with their own evidence. The most egregious example of a trial judge who allowed the parties far too much leeway was Judge Lance Ito of the O.J. Simpson murder trial infamy. That trial — a “no-eyewitness” murder case — should have taken no longer than a few weeks, at most. If Judge Ellis had the case, it may have been shorter than a recent O.J. documentary. It lasted more than eight months.

Judges who demand focus and speed likely provide everyone involved, including jurors, a more balanced and understandable trial. Brevity can be key, especially in today’s society of ever-shrinking attention spans. But, if the attacks become personal and unfairly give the impression to jurors that prosecutors are trying to flout the rules or violate their duty to fairly present evidence, then justice is not done.

After several days of testimony, the prosecution seemingly has built a very strong case against Manafort. Defense lawyers are going to be looking for any crack in the armor, or opportunity to advance their cause. Judge Ellis’s discontent could present such an opportunity. The best course for prosecutors may be to swallow hard, push through the evidence, and hope that the judge relegates himself to being more of an umpire who simply calls “balls” and “strikes.”    

Seth Waxman, a former federal prosecutor and current partner in the law firm of Dickinson Wright, worked for more than 20 years on complex, white collar criminal cases.