Jury Can’t Agree In Scam Trial

Thomas MacMillan File PhotoAfter hearing 12 days of testimony and deliberating for over 12 hours, a 12-person jury returned four handwritten notes to Judge Alvin Thompson—but no verdict. That kept lawyers watching old SNL episodes, and reading the tea leaves.

The jury, impaneled in a second-floor jury room in U.S. District Court in Hartford, is charged with deciding the fate of five people the government says took part in a multimillion-dollar mortgage fraud conspiracy.

The scam allegedly bilked government and private lenders of millions of dollars and left a trail of blighted homes in New Haven and surrounding towns. Prosecutors say a ring of 15 people participated in the scheme. Most have pleaded guilty.

The remaining defendants include attorney David Avigdor, who’s also New Haven’s longest-serving pulpit rabbi, and Morris Olmer, a former New Haven alderman and state representative.

For the past two days, those two men, along with three other defendants, have haunted the halls of the Abraham Ribicoff federal building, marking time as they await a decision from the jury.

Wednesday came and went without a verdict. But just before the end of the day, jurors sent out a note that suggests the government has failed to convince all of them of the defendants’ guilt.

At least that’s the way several defense attorneys interpreted the handwritten message, which read, “What should we do if we can’t come to a unanimous decision on one or more of the counts?”

Judge Thompson declined to answer the jury’s question directly. Instead, he simply told jurors to go home, get some rest, and come back and work on it more on Monday. (The judge will be away Thursday and Friday.)

Notes 1 & 2

Wednesday afternoon’s was the fourth note to emerge from the jury room since the jury’s four men and eight women began their deliberations Tuesday morning.

The first two notes arrived in rapid succession Tuesday afternoon—and provided fodder for the attorneys playing the waiting game.

The first note came out at 2:52 p.m. It was a request to review the testimony of Kenneth Perkins, the man who cooperated with the feds and wore a wire to unravel the conspiracy. The jurors wanted to hear his testimony about a meeting between he, Asmar, Luis Rivera (an alleged recruiter of “straw buyers”), Syed Babar (the alleged mastermind), and an attorney named Novak.

“I think this clearly deals with Marshall,” said Frank Riccio, Jr. He represents Marshall Asmar, the landlord accused of taking part in the conspiracy to the tune of hundreds of thousands of dollars in property sales. Riccio said he focused on the meeting in his closing statement as the only contact his client had with the other alleged conspirators. “The key question is, does a single meeting inject him into any of this?”

As lawyers waited in the courtroom for Judge Thompson to appear, a second note arrived. It came at 3:17 p.m. It said, “If a person enters a scheme, are they responsible for previous substantive crimes?”

That note could apply to any of the defendants who allegedly joined the conspiracy after it was already up and running, Riccio said.

At any rate, the answer is no, attorneys said. A conspirator cannot be held responsible for crimes committed by the conspiracy prior to his or her entrance into the conspiracy.

Judge Thompson didn’t tell the jurors that. Instead, he referred them to a section of their instructions that deals with the question. He promised to have a section of testimony transcript ready for them to hear in the morning, and sent them home.

Notes 3 & 4

Wednesday, the second day of deliberations, began with a brief reading of the requested section of the court transcript. That was followed by note number three: Jurors requested 12 copies of the indictment.

After that, the jury room was quiet. The day dragged on. Defense attorneys amused themselves in the courtroom with movies (Four Lions) and TV shows (30 Rock, Saturday Night Live) on their laptops. Attorney Don Cretella, wearing two-tone shoes and a belt decorated with skulls-and-crossbones, sorted through papers and played DJ for some time (She and Him, Rod Stewart, country tunes). Defendants drifted in and out, trading sections of a newspaper. Olmer impressed a co-defendant by making quick work of the crossword.

“My stomach is in a knot,” said Howard Lawrence as he wandered into the courtroom. He’s representing Avigdor. While waiting for a verdict, an attorney always wonders what he could have done differently, he said. “It’s the nature of the business.”

Later, after lunch, attorneys complained about the meals they’d had. They delved into YouTube. They perused Facebook. Several discovered what Yoko Ono’s music sounds like. Others shared war stories about past cases, or discussed guns and Italian cars.

A hot topic, of course, was when the verdict might come. The discussion was fueled at 2:45 p.m. when courtroom staff mentioned that the jurors had been given a local restaurant menu in case they wanted to put in orders for lunch on Monday. When 3:30 p.m. came and went with still no decision, Cretella announced that he’d won the over-under for the day and that the other defense lawyers owe him lunch.

Then, at 3:55 p.m., another note. It was the question about what to do if jurors can’t agree.

At 4:05 p.m., Judge Thompson emerged and said he’d like to tell the jury to go home and rest.

Assistant U.S. Attorney Eric Glover, citing a rule of court procedure, said he’d like the judge to ask the jury to return a partial verdict on whatever it could agree on.

After some discussion, Judge Thompson rejected the suggestion. “I don’t want to disrupt the jury dynamics,” he said.

If asked to give a partial verdict, jurors might feel they’re being rushed, Cretella said.

“Your Honor’s suggestion is the best,” Lawrence said.

After the jurors filed in, Thompson told them they’ve worked hard, it’s a complicated case, they’ve only been deliberating since late Tuesday morning, and they should go home and rest. On Monday, after several days off, “see if you’ve had time to sift through your mental processes,” he said.

As they packed up to leave for the week, attorneys reflected on the significance of the fourth note.

“They’re split on some issues,” Lawrence said. The jurors are not finding all defendants guilty on all counts, he said.

It’s a “disaster for the government,” Cretella said. “The longer they go, the better. It shows the government hasn’t proven its case on all counts.”

“They’re thinking really hard,” Riccio said. “It’s clearly not as obvious as the government thought.”

Previous coverage of this case:

Avigdor’s Final Plea: Follow The Money
Claire: The Rabbi Is Kosher
Wednesday The Rabbi Took The Stand
Straw Buyer Lured Into A Wild Ride
After Big Fish Plead, Smaller Fry Point Fingers
Slum-Photo Doctor Makes A Call
What Happened At Goodfellas Didn’t Stay At Goodfellas
Fraud Trial Opens With Oz-Like Yarn
“Partying” MySpacer Lined Up Scam Homebuyers
“Straw Buyer” Pleads Guilty
Neighbors, Taxpayers Left With The Tab
FBI Arrests Police Commissioner, Slumlord, Rabbi
One Last Gambit Falls Short
Was He In “Custody”?
Is Slum Landlord Helping The FBI?
Feds Snag Poverty Landlord
Police Commissioner Pleads

 

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Comments

posted by: Jay on April 7, 2011  10:15am

Rabbi Avigdor is a very decent man. He lost his job when his former employer became ill and had to downsize his law practice. Rabbi Avigdor has suffered a stroke and even if he did make mistakes and could have used better judgment, I would say that he has definitely learned his lesson. I hope that he is found not guilty as he is a kind human being.

posted by: da hill on April 7, 2011  11:23am

@ Jay,

Rabbi Avigdor’s decency has nothing to do with his alleged participation in criminal activity, nor does his medical condition or his misfortune with his employment…if he is found to have engaged in this consortium of criminal activity then he should be punished to the full extent of the law.

Thankfully, we don’t have good guy clause in our application of the criminal code.  Frankly, he should be held to a higher standard because of his, presumably, higher moral responsibilities. 

THROW THE BOOK AT HIM!

posted by: Helen on April 7, 2011  12:22pm

My husband and I know David Avigdor for more than 25 years - he was our lawyer for several closings - there is not a dishonest bone in his body - he most certainly was an unwitting pawn in this scheme. He would never have knowingly been involved in anything fraudulent or illegal and these crooks sensed that he believed that most people are decent. David is one of the most honest and open people we have ever met.

posted by: angelo on April 7, 2011  1:21pm

How come poor people go to jail, but professionals have always learned their suffered enough without jail? As for Helen’s views, that’s why an impartial jury hears the case, not the defendant’s friends.  Even though you do not know all the facts of THIS case, you are certain that THIS defendant does not have a dishonest bone in his body.  The jury may feel differently, since they heard the evidence.

posted by: Let's Recap on April 7, 2011  5:46pm

Thanks to the NHI’s remarkable coverage of this we have been able to read all about the prosecution’s evidence against the Rabbi.  All they’ve proven is that he nearly ran himself to death doing discount house closings.

Should he have known Morris was up to no-good?  Maybe.  If it were anyone other than David Avigdor (and yes, I do know him) Morris’ disbarment would have been sufficient cause to write him off forever.  For Rabbi Avigdor, however, giving everyone the benefit of the doubt is just his way.  Even after all of this, I would be very surprised if it changes him.  Because he always sees the best in everyone, he very likely will always be at risk of having someone take advantage of him.

It is obvious the Rabbi had no intention to commit a crime.  If he did, he would have certainly taken more than a few thousand dollars in closing fees.  If the government had evidence of him receiving any other money, they surely would have presented it.  They did not, because no such evidence exists.

Even if Rabbi Avigdor did start to suspect something, what exactly should he have done?  Turn in his clients?  I don’t understand how he could have done that.  He’s a lawyer.  He was THEIR lawyer.  Are lawyers allowed to rat out their clients based solely on suspecting them of wrongdoing?  He certainly had no obligation or authority to start his own investigation.  Under the circumstances, all he could have done was to quit working for them.  But to do that, he would have had to declare (to himself) they were up to something.  He would have had to stop seeing them as basically good people, which is something he just cannot do.

If the prosecution is required to show he is guilty beyond a reasonable doubt, they have failed to do so.  If they just need to provide a preponderance of the evidence, they failed to do that too.

This is in no way the trial of the century.  There has only been one of those in recent memory.  As I recall, in that one, someone said “...if the glove doesn’t fit, you must acquit”.  I do not necessary think the jury in that trial did the right thing.  In this case, I am hopeful the jury WILL do the right thing and acquit Rabbi Avigdor.  He did not do anything wrong.  The prosecution proved it.

posted by: Alan Francis on April 10, 2011  11:45pm

It has been heartbreaking for me to see my closest friend, David Avigdor, persecuted by a prosecutor whose zealousness for a conviction outweighs serious regard for truth and justice.

David’s health, life, livelihood and reputation have taken a serious beating from which they may never fully recover. One may not be sympathetic to his plight thinking he brought this upon himself. Did he not defraud others for personal gain? Wasn’t he somehow mixed up with some shady characters whose guilt is indisputable? Even if the evidence is not conclusive, don’t the known facts point to his guilt?

Imagine you rent a car. You open the trunk and push aside a bag left by the previous renter to make room for your luggage. Tired from your flight, you weave a bit on the road and are pulled over by a state trooper. A search of your trunk turns up a bag of drugs with your fingerprints on it. You are completely innocent yet the evidence is compelling. Those who know you know absolutely that you are innocent; that you don’t even know what drugs look like. But they are not your judge and jury. You are judged by those you don’t know you at all and prosecuted by one who is motivated by conviction rate.

Now consider Rabbi Avigdor. He and I have been the closest of friends for about 40 years. We were schoolmates and roommates. He and his wife were instrumental in getting me and my wife together. I was a frequent guest in his parents’ home during our school years together. And we have been fixtures in each other’s lives since. His wedding, my wedding; the births of his children and my children; their Bar Mitzvahs and Bat Mitzvahs; the death of my father, the death of his father; his children’s weddings, my children’s weddings; the births of our grandchildren and so on…

For me the facts are simple. David is absolutely, positively and unequivocally honest. It’s not that he doesn’t know how to lie. Everyone knows how to lie. It’s just that he doesn’t do it. He won’t do it. It’s against every moral and principle in his body and his psychological makeup. He is simply the straightest of arrows. Yes, it’s hard to believe, because so few people have that strength of character. When we are confronted by it, we don’t believe it.

His strength of character is the source of his undoing in this case. A con artist knows another con artist a mile away. But Rabbi Avigdor is no con artist. He is a sincere, compassionate and trusting individual - a perfect friend, but alas a perfect patsy to those less scrupulous that he. And a perfect target for prosecution - a lawyer AND a rabbi. Who could offend our sensibilities more than a crooked lawyer AND rabbi? It makes for great press and prosecutorial heroics ridding us of a lowlife who betrayed our trust in two callings at once. But only if there is truth to the charges. If false, a great travesty of justice is occurring on our watch and a great man is being horribly maligned and his life ruined, his clients deprived of his honest counsel and his congregants robbed of his principled leadership.

Be strong, my friend, for all of us who know you believe in you fully, unconditionally and unwaveringly.

Your friend always,
Avi Francis