Judge Shows Hand on Motions to Acquit
Late yesterday, Judge Molloy indicated that he would reserve ruling on the defense Rule 29 motions to acquit until after the jury had returned a verdict.
During the week, the parties and the public have waited anxiously for Judge Molloy to rule on the defendants’ motions for acquittal under Rule 29. The tension mounted throughout the week as the prosecution dismissed two individual defendants: Robert Walsh and William McCaig.
During yesterday’s afternoon recess, Judge Molloy asked for all counsel in his chambers. Upon returning to the courtroom, the case proceeded with defense witnesses. It was not until after the jury was excused for the day that the subject of the in-chambers conference became apparent. David Krakoff, representing defendant Eschenbach, asked the court to reconsider his “inclination” to reserve ruling under Rule 29(b).
Rule 29(b) allows a court to let a case go to the jury for a decision and then grants the court the power to dismiss the case in the event the jury returns a verdict against the defendants. Rule 29(b) states:
The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.
While the court stated that he had not made up his mind on the issue, it was his “inclination” to let the jury make a decision and reserve his ruling on acquittal until after the verdict. In other words, if the jury convicts, the court would consider whether to overturn the convictions of the defendants. If the jury acquits, then the court would not have to make a ruling on the defendants’ motions for acquittal.
It was this point that David Krakoff argued emotionally to Judge Molloy yesterday. Krakoff urged the court not to wait until after a jury verdict of conviction because then the “momentum” is in favor of affirming the jury’s verdict. Krakoff suggested that his experience has been that judges have been unwilling to overturn jury verdicts. Realizing that his argument may have suggested that Judge Molloy was unwilling to make a difficult decision in the face of public opinion, Krakoff immediately back-pedalled. Judge Molloy related an ancedote about another case in which he had gone against the grain of other judges’ rulings and expressed his ability to make difficult decisions that he felt were legally compelled.
Judge Molloy told the parties that the jury would hear closing arguments in the case on Thursday.
Earlier in the trial, and several times in his orders, Judge Molloy has expressed his disagreement with the government’s case as to conspiracy and the Clean Air Act violations. Judge Molloy has repeatedly asked the prosecution for their evidence of conspiracy and to explain their theory of conspiracy. Since the only charge Eschenbach is facing is conspiracy, it appears that the judge will not eliminate the conspiracy charge from the jury’s consideration. The prosecution will have the opportunity to explain their theory behind the conspiracy and convince the jury that there is sufficient evidence of conspiracy to convict beyond a reasonable doubt. Since Eschenbach is not charged with violating the Clean Air Act, the court’s inclination sheds no light on possible acquittals on the Clean Air Act counts (Counts II, III, and IV of the indictment).
— Andrew King-Ries (posted 5/1/09, 6:45 a.m.)
Posted: May 1st, 2009 under Law.