Talk about judicial activism.
Philadelphia Federal District Judge Michael M. Baylson, a 2002 Bush nominee to the federal bench, was apparently so frustrated at a hold-out juror during several days of jury deliberations in a high-profile city hall corruption trial that he sacked her from the panel, claiming she had displayed “bias” against the government and FBI, and had “violated her oath” to be unbiased.
The judge, a former head of the Philadelphia U.S. attorney’s office, said he acted to dismiss the juror, a 29-year software programmer with the Social Security Administration, after other jurors complained in notes to him that she had said in deliberations that “the FBI lies,” and that the government “didn’t play all the calls.”
The government’s corruption and bribery case against Philadelphia City Treasurer Corey Kemp and four other defendants, has relied heavily on FBI wire taps of the mayor’s office and other phones, and prosecutors did play only selected bits of recorded conversations at the trial.
Defense lawyers for Kemp and the other defendants reacted angrily at Wednesday’s action removing juror Margaret W. Szewczyk, 57, and at her replacement by an alternate juror. “You have sided with one faction of the jury. You have sent a clear message to anyone who may not want to go along with the majority that they, too, can and will be removed,” shouted Kemp attorney L. George Parry in court.
For her part, ousted juror Szewczyk expressed shock at the judge’s move. Told that other jurors had complained about her statements about the FBI and the government’s presentation of evidence, she said angrily, “I didn’t say that. There’s a lot going on in that courtroom that you can’t see.”
While Szewczyk declined to go into further detail while the trial was still continuing, a friend was quoted in the Philadelphia Inquirer as saying that she had said other jurors had been frustrated at her insistence that the panel examine each of the elements of each crime charged, and at her stated concern that other jurors were making their decisions based on instinct, not fact and law.
Meanwhile, it’s not the first time Judge Baylson, presented to Congress at his nomination as a conservative jurist, has interfered with a jury during deliberations. The Third Circuit Court of Appeals is currently considering another case from 2004 in which Baylson dismissed a juror and then allowed the remaining 11 members of the panel to reach a verdict.
A prominent defense attorney who has tried cases before Baylson says the judge is no stranger to controversy. While he was an attorney in the Philadelphia U.S. attorney’s office, there was an investigation into leaked grand jury testimony concerning the then Congressman William Gray III, a powerful Democratic member of the House. Baylson allegedly failed a lie-detector test in that leak probe. “He’s a real Republican hack,” said the attorney.
For Ilo Jones, executive director of the Fully Informed Jury Assn., (FIJA) far more important than any possible political motive behind the judge’s action (Philadelphia’s mayor is a Democrat) is his assault on the rights of juries.
“This is jury tampering at its worst,” she says. “This is jury tampering from the bench. What he did was fix the jury. He snatched out a person who was standing by her convictions because he wanted to get on with the case. ”
She adds, “It’s a true statement to say that the FBI and the government lie. Her saying that was not a reflection of bias.”
Baylson, who met behind closed doors with the jury before dismissing Szewczyk, said most of the other jurors had claimed she was biased against the government. They also claimed she had said she was unlikely to believe FBI agents’ testimony. In a 10-page memorandum on the dismissal, the judge wrote that their statements led him to conclude that Szewczyk’s “bias went well beyond the absolute right of a juror to disbelieve a specific witness” and that she had “come to the jury room from the very beginning of deliberations with preconceived biases and was unwilling to put those biases aside.”
FIJA’s Jones says, “I’m appalled that the private deliberations of the jury have been aired in public by the judge. This heavy-handed treatment and disrespect for both the process of jury deliberation and of an individual juror indicates a lack of understanding on the part of the judge of the sanctity and role of the jury and of jurors.”
You have to wonder what Judge Baylson would have done if 11 jurors had come to him complaining about a 12th juror who just wouldn’t vote with them to acquit because she said that the FBI and the government “wouldn’t lie.”
DAVE LINDORFF is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of CounterPunch columns titled “This Can’t be Happening!” is published by Common Courage Press. Information about both books and other work by Lindorff can be found at www.thiscantbehappening.net.
He can be reached at: firstname.lastname@example.org