Editor’s Note: Shan Wu, a former federal prosecutor, briefly represented Rick Gates. None of the information or opinions contained in this piece are based upon any confidential or attorney-client information. Follow him on Twitter @shanlonwu. The views expressed in this commentary are his own. View more opinion articles on CNN.
At the trial of Paul Manafort, taking place in the federal courtroom of Judge T.S. Ellis in Alexandria, Virginia, there is no doubt who holds center stage. Beginning with his accusation that Robert Mueller’s team’s true interest in Manafort is getting him to “sing” (or cooperate), and extending to his repeated criticisms of the prosecution’s performance, Ellis’s personality has arguably played as large a role in this trial as the photographs of an ostrich leather jacket and the admissions of Manafort’s former protégé, Rick Gates.
Though he is no stranger to high-profile cases – he presided over the trial of the “American Taliban” John Walker Lindh – Ellis’s fast pace and abrasive style now pose potential issues for both prosecution and defense.
Limiting the evidence
Ellis has repeatedly demanded the prosecution limit the jury’s exposure to Manafort’s lavish lifestyle. And he even summed up his own sartorial taste, saying, “If it doesn’t say Men’s Warehouse, then I don’t know it.” He has also frequently tried to rush the prosecution through testimony about important financial documents and has essentially banned the use of the word “oligarch.”
Now, there is a legitimate reason for limiting the jury’s exposure to Manafort’s extraordinary lifestyle – such details might engender resentment among the jurors. And experienced trial judges like Ellis know well that any conviction will be appealed, so they are careful to make conservative decisions at trial in order to protect a potential conviction. Since only convictions can be appealed (double jeopardy prevents the government from a second trial if the defendant is acquitted), this concern tends to result in more limitations on the prosecution than defense.
Getting to trial quickly and keeping the pace of the trial moving are ever-present atmospherics in any case but particularly so with the federal court in Alexandria, Virginia. The court, formally known as the Eastern District of Virginia, is nicknamed the “Rocket Docket” for its furiously fast pace and intolerance for delays. In the Manafort case, Ellis’s pace has been unbelievable. For example, jury selection in such a high-profile case could easily take a week or more (I prosecuted street crime juries where it took us a couple of days to pick a jury). But in Manafort’s trial, jury selection and opening statements by both sides were finished and the first witness began testifying all by the end of the first day.
Such a pace takes a toll on lawyers and jurors alike, causing potential errors by the lawyers and diminished attention by the jurors (and may have caused some of the irritable exchanges between the prosecutors and Ellis). Dense and complicated financial records require time to digest and explain and giving them short shrift in the interest of time does neither side any favors.
Swaying the jury
Perhaps, most importantly, it is widely accepted that juries look to the judge for more than just legal rulings. Subtle criticism – or not so subtle in Ellis’s case – by the judge of one side or another can turn a jury hostile toward that side or even individual lawyers. Knowing this, the Mueller team asked, not once but twice, in formal pleadings for Ellis to tell the jury that criticism of the prosecution had been unjustified. Ellis is known to be equally critical of the defense and prosecution, but thus far his criticism seems more focused on the prosecution.
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In a case widely seen as symbolic of Mueller versus President Donald Trump, Ellis has assumed a level of notoriety for a judge not seen since the murder trial of O.J. Simpson more than two decades ago. But the O.J. Simpson case was televised live, which exponentially enlarged the presence of the judge. Ellis needs no electronic aid.
Whether his outsize presence helps, harms or is a neutral factor in Manafort’s case remains to be judged by the jury, potential appeals courts and the court of history.