As the Manafor trial takes the weekend off, it is important to reflect on what we know about the proceedings. The jury has been deliberating for over two days. It has been reported that Judge Ellis has intervened regularly, and mainly against the the prosecution. The judge’s interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He “disparaged the prosecution’s evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not.”
Judge Ellis was appointed by President Ronald Reagan and took the bench in 1987. He took senior status in 2007, meaning he can choose not to work a full caseload. However for a 78-year-old, he keeps a busy court schedule, commuting from Charlottesville each week to preside over espionage, gang murder and drug cases.
It’s ironic that Ellis was bon in Bogata, Colombia. Remember Trump’s willingness to attack the ethnicity of Judge Curiel, but in Indiana, and of Mexican heritage.
“Look, he’s proud of his heritage, okay? I’m building a wall,” Trump said of Curiel in June 2016 to CNN anchor Jake Tapper.
“He’s a Mexican. We’re building a wall between here and Mexico.”
Yet Trump doesn’t seem to mind a Bogata-born judge presiding over the Manafort case. Perhaps that is because Judge Ellis has made no secret of his favoritism for Manafort. Nancy Gertner, a former federal judge, described Ellis’s behavior – repeatedly interrupting and arguing with prosecutors in the presence of the jury – as “decidedly unusual” and appearing to show bias against the prosecution.
Under the Code of Conduct for U.S. judges, a judge is supposed to be fair and impartial, as well as “patient, dignified, respectful and courteous” to those in his courtroom. The rule’s concern is as much about the appearance of justice as its reality. If the judge violates that rule and a defendant is convicted, the defendant may be entitle to an appeal.
But there will be no appeal available to address Ellis’s anti-prosecution bias if Manafort is acquitted by the jurors. The prohibition against double jeopardy precludes it.
For now, we have only the extraordinary evidence of Ellis’s conduct during the 12-day trial. The judge continually interrupted the prosecution’s questioning of witnesses, prompting lead prosecutor Greg Andres to pointedly note: “Your honor stops us and asks us to move on.” Ellis pressed the prosecution to rush through testimony about important financial documents. He made critical comments about prosecution evidence and strategy — all in front the jury.
Ellis also questioned the relevance of Manafort’s work as a political consultant for Russian-backed politicians in Ukraine, for which he was paid tens of millions of dollars from 2010 to 2014. But if Manafort didn’t disclose some payments because he was not registered in the United States as a foreign agent, it would provide a motive to hide the amounts from the U.S. government.
The Manafort trial is the most prominent case to emerge so far from the investigation by special counsel Robert S. Mueller III into Russia’s interference in the 2016 presidential election. Clearly worried about its outcome, prosecutors went so far as to urge Ellis to tell the jury, in his instructions before they began deliberating, not to let his commentary affect their decision-making. Ellis essentially did just that on Wednesday before the jury began deliberating.
The problem is that a judge has a huge influence over the jurors. They often don’t understand the proceeding, the evidence, or the charge of the court. If they perceive that the judge favors one side, they are likely to decide in favor of that side. Their thought is that surely the judge knows the case and the evidence and the rule of law better than they do. If he has already made up his mind, then they often reach the same conclusion. Instructing the jury to disregard the judge’s commentary is a way for the judge to protect against a reversable error on appeal, but at the same time bringing attention to the commentary. If the jury finds in favor of Paul Manafort, Judge Ellis might plan his next vacation, all expenses paid, at Mar-a-lago.