Three Strikes and Your Guilty

Three strikes and your out may be a good rule for games like baseball, but not for federal criminal trials. Yet that is the result in U.S. v. Forbes, the federal criminal trial of Walter A. Forbes, former chairman of Cendant Corporation. Yesterday a jury in federal District court in Bridgeport, Connecticut found Mr. Forbes guilty of two counts of conspiracy and two counts of submitting file reports to the SEC. Mr. Forbes was found not guilty on a fourth count of securities fraud.

Government prosecutors proclaimed that “Justice was served” according to an article in the New York Times today. But is was it? In two prior attempts the government failed to convict Mr. Forbes. The first trial lasted eight moths. Jurors were unable to reach a verdict after 33 days. After the second trial jurors deliberated for 27 days and were unable to reach a verdict. In those two trials jurors deliberated a total of 60 days. No doubt the government presented every bit of evidence it could muster to support a conviction in each trial. No doubt the jurors carefully went over every speck of evidence. Yet they were unable to reach a verdict.

Now eight years and three trials later the government was finally able to get the verdict it wanted. Federal criminal trials are suppose to be about the government proving its case beyond a reasonable doubt. If not there is a failure of proof.   While judges routinely reject post trial motions for acquittal arguing that a hung jury demonstrates reasonable doubt, there is something unseemly about the federal government doggedly pursuing someone like the energizer bunny, year after year and trial after trial until they finally happen onto the result they want. With the vast investigative resources available to federal prosecutors and the charging discretion to shape a case that they can prove –and the ability to make a plea offer that can not be refused when the case goes south — there should be no excuse for the government to use energizer bunny tactics to get a conviction. Three strikes and your out is a good rule for baseball, but not federal criminal trials.