I am writing about my criminal trial from many years ago.
If the defense feels the prosecution has not proven its case beyond a reasonable doubt, there is a timely action to make. A “Rule 29 Motion,” based on Federal Rule of Criminal Procedure 29, is typically made twice during a federal trial – first, at the close of the Government’s case, and again at the close of the entire case. These motions allow the judge to dismiss the case as a matter of law.
I knew nothing about a Rule 29 as the prosecution rested. I rested for about a minute and then my attorney hopped up and wanted to be heard on a Rule 29. I thought the Judge seemed quite receptive to this – whatever “this” was. We had all sat through about 7 long days of trial testimony and it was culminating at this moment. I didn’t see it coming, but I was on the edge of my seat. It sounded good, simply the Government failed to prove their case.
The Judge picked up some papers and read from the charges. One of the things that he seemed annoyed about was the dates of the crime as stipulated in the charge. “On or about”, “prior to”, etc… were not used correctly as it related to the dates of the charges. It was as if the prosecutors were charging us before the Fund at issue had even been created. The prosecutor rationalized it that the exact date didn’t matter, but if you are charging someone with a crime when the organization at issue didn’t exist, there was a potential problem.
The Judge pushed the prosecutor somewhat to explain further and the prosecutor’s explanation was weak. The prosecutor explained that one Fund had ended and it was fully committed and another one was beginning, so the prosector said that “we” still needed money and were soliciting for sales even when no Fund was available to invest in.
The Judge’s body language told me a lot. He was frustrated. He had learned a lot during the prosecution’s case. I think he could have started out thinking that I might have been guilty, but ended up seeing that I administrated the Fund, invested in the Fund and got no benefit from it, so what intent or motive did I have and what did I receive as a result of my role?
No doubt a Judge that has seated a jury, guided them with instructions, asked for their patience and attentiveness, wants to give the Jury a chance to decide the case. Somehow, the jury has earned the opportunity to deliberate and vote. That might not be the right thing to do, but I am sure that a Judge feels some allegiance to the jury’s experience. Nonetheless, the Judge can decide to continue the case or throw it out if the prosecution has not proven it to sufficient levels at that time.
I was probably holding my breath. Within less than about 15 minutes, there was the back and forth between “us” and the Judge as to the merit of the prosecution’s case or lack thereof. The Judge was very firm with the prosecutor, but in the end, the Judge decided to take that Rule 29 under advisement and let the Defense proceed.
Just the fact that the Rule 29 took place and that the Judge reacted the way that they did gave me some peace. Maybe all this was going to work out in the end. It still felt like I was being tortured.
The root of the torture is that I still wasn’t hearing the truth and it just bothered me. Bothered me a lot. It was bothering me for every defendant that ever stood in any US courtroom. I felt our collective pain. It’s like a silent scream.
If you say too much trying to get the truth out, you look desperate. If you don’t say anything, you know that nothing will happen. You have to ride the tension of being consistently telling the exact truth and correcting people who morph it in any way. Once you allow someone to reshape the truth, once you remain silent, the opportunity opens for more and more of this contortion. You lose control when you lose the truth. You have moved over from the driver’s seat to the passenger’s seat and your destination will change.
Telling the truth has always been important to me, but now I had to hold others accountable too. For those that were cooperating Government witnesses, it seemed that we were no longer aligned with the facts of the Fund’s history. One of the Government witnesses said something completely honest and devastating for the case, he remembered what happened “in a way that was convenient”. Sounds like lying to me.
My family, friends, church people, colleagues and others continued to fill the courtroom. When the Rule 29 came along, they were all on the edges of their seats like me. I felt the swell from the community. We had been waiting for this and it might be all over. So close, but missed. Everyone was very supportive because not only did they know me, but the Government was being revealed for who they were and the community could not make sense of why they were prosecuting me after hearing all the prosecution’s evidence. There was never a gasp, an “aha” or some secret that was uncovered that made sense of this ordeal.