NEILSON TRIAL: Deadlocked jury to return Saturday

By Patsy R. Brumfield/NEMS Daily Journal

4;56 P.M. – Judge asks attorneys to come back.

Judge says – Spoke with (name) and elected to remain and continue her deliberations. Jury wants to leave for the night, still deadlocked. I’m going to excuse them. They want to return at 9 a.m. tomorrow.

5:03 – Judge says she received their note. Honor your wishes. I understand you desire to return at 9 a.m. Asking you to be here. We’ll all be here with you, to start your deliberations.

Know it’s been very stressful. You are very diligent. Know you are working very hard. Suggest you go home and not think about it. Get some rest, get some sleep. Come back with fresh minds, clear heads. Important not to speak to anyone about the dilemma you’re in. You understand how much evidence you’ve heard in this case. Other people just don’t know. What you decide is what you have heard within the four walls of this courtroom.

Thank you for your service. 5:06 p.m.

***

4:13 p.m. – Judge calls attorneys back to the courtroom.

Counselors, addressing you regarding Juror 5, (name). Looking at Rule 23, provides that juror can be excused for good cause without agreement or stipulation of the attorneys. Obviously I’ll seek your consent.

Warned you that I’m about to dismiss her. Don’t know where she is and don’t know if it affects an outcome. She said, can I get a phone to call at 4 p.m. to call her husband to cancel plane flight. She’s sent out a note to get our tickets on Monday. But we know that we’ve delayed her. I sense that she wants to see this to the end.

I’ve just never been here before and open it up to you about how to proceed.

Guess my gut reaction is to bring her in, excuse her and actually give her the option, does she want to stay. I feel really bad for her that she’s in this situation. I’m more inclined just to excuse her to visit her grandchildren.

Government? Salomon – sounds that she is being conscientious and that she’s still working. Let her do her duty and keep on plugging. I’ll defer to Your Honor to make that call, if she wants to go.

DEFENSE – Michael – I don’t agree with Rule 23. We have no idea what the dynamics in that room are. Don’t know what it is. But when excuse a juror, it stands a chance of changing the dynamics one way or another. The fear I have. The dynamics in place can change – for me, Neilson, or against me.

Judge – Rule says “after” commencement of deliberations.

Michael – I see that. It just seems very prejudicial to either side.

Judge- It’s extraordinary. It’s unique. I’ve never heard of it. But the rule is the rule. I’m going to call them all in. I’m going to explain… but … call her in, excuse her for cause, but if you desire to stay, you may remain. Decision is hers.

Rule 23 – (reads to attorneys) – Nine days with testimony. Five days of extended hours. Significant expenditure of resources. Significant travel, time taken away from job responsibilities. Court advised jury pool that trial could take 10 days, but less than 10. About two days into testimony began, (name) advised court deputy that she had plane tickets to leave Nov. 20 to visit grandchildren in Colorado. She offered to cancel for Christmas. Court advised her not to cancel. Court accelerated trial schedule. Changing her flight will cause her a significant sum of money. Asked when she could return. Not until Nov. 27 – a lapse of 7 days. Court is uncomfortable with sending a jury home for seven days. Likely to affect jurors. Fear of prejudice. Important case. Court of opinion that good cause exists. Court expects to excuse her and that remaining jurors are instruted to continue to deliberate. I’ll make it clear she may remain or she is free to leave.

Michael – I don’t know how she feels, in front of everybody, being given that opportunity. Might meet with her in chamber.

Govt. Salomon – we agree with Mr. Michael. I appreciate his concern. We share them. Could communicate privately or collectively.

Judge – Thank you. A good suggestion. Why don’t we do this. Let me get one of you on each side. We’ll bring (name) into chambers and give her this option.

We’ll be in recess. 4:28 p.m.

***

3:11 p.m. – Back in the courtroom.

Judge – says she proposes to read a modified charge to the jury, modified by her.

Jury says they are permanently deadlocked on 4 counts, and decided on 1.

3:12 – Jury returns.

Judge – says have agreed to one count and deadlocked.

She says she will ask them to continue in an effort to agree on a verdict and dispose of this case. A few additional comments. This is an important case. It has been expensive to all involved. Any future jury will be chosen from same source you were chosen. No reason to believe that the case could go to 12 men and women more competent than they are. Those who believes in guilt, should stop and ask if evidence is really convincing enough. Those who believe in non-guilt, should stop and ask if the doubt you have is a reasonable one, given others do not share your doubt. Remember, no juror should yield an opinion, but remember also that after full deliberations, it is your duty to agree on a verdict without surrendering your opinion.

You may return to the jury room. 3:16 p.m.

****

ABERDEEN – U.S. District Judge Sharion Aycock told attorneys today that Hail Neilson’s jury says it’s decided one count but is locked up hard on four others.

* * * *

ABERDEEN – It’s Friday, and Hal Neilson’s jury has a question for the court.

Its 12 members, who must be unanimous on each of five counts against him, began their work at 4 p.m. Thursday, then went home for the night two hours later. They returned to the federal courthouse here at 9 a.m. today.

Neilson, 49, of Oxford is a 21-year FBI veteran and the former top agent in the Oxford office. He was indicted Jan. 13, accused of conflicts of interest about his ownership of the building where he works at 2109 University Ave.

It’s 2:09, and the attorneys, plus Neilson’s family and several friends are back in the courtroom waiting to learn what the question is.

For a few moments, Neilson sits at the defense table, his fingers interlaced, his head bowed as if he is praying.

Judge Sharion Aycock enters, and her assistant, Ginger Sullivan, bring the question to the attorneys. Defense counsel Christi R. McCoy smiles at the audience and whispers something positive.

Aycock says, the question: We have decided one count and we are deadlocked on four counts. Do we understand that we must decide on all five counts?

Aycock says – a separate crime is charge in each count. Should be considered separately. Even if only find for one count, it should not control as to other counts.

Jury also asks for definition of “substantial.”

Sides mildly argue about whether Webster’s definition could do, if Black’s Law Dictionary does not define it.

Aycock – reluctance to assign a definition, may be more than I should do.

She suggests: “There is no special or legal meaning of substantial. I suggest use ordinary experience and common sense. Apply as you would in your ordinary affairs.”

Now, she says. Use last 2 sentences, not first. – use experience, common sense. Apply as would …

2:22 – bring in jury.

Jury returns. Judge welcomes back and thanks for diligence and conscientiousness in this case.

She reads them her response: A separate crime is charge in each count. Each should be considered separately. The fact that you may find the defendant guilty or not guilty as to one, should not influence your decision as to the others.

She reads them her suggestion about “substantial.”

2:25 – they go back to jury room.

(Watch NEMS360.com for updates.

2 p.m. – ABERDEEN – Hal Neilson’s jury had lunch downtown today, then returned to the federal courthouse to resume deliberations for a verdict in his conflict-of-interest trial.

On the courthouse’s third floor, Neilson’s family members and numerous friends mill around making small-talk and sometimes asking each other what they think the passage of time means to the jury’s decision.

Some have opinions. Of course, nobody really knows.

Neilson, 49, of Oxford went on trial Nov. 8 on a five-count indictment that he, as a 21-year veteran of the FBI, lied about his financial interests in the building where he works at 2109 University Ave.

The 12-member jury must be unanimous on each of those five counts. Neilson faces up to five years in prison per count, if they find him guilty.

What the jury likely does not know, besides his possible sentence, is that if he is convicted, he will lose his federal pension. He is about a month away from retirement.

Neilson took the stand in his own defense earlier this week, and while the jury has stacks and stacks of documents to rely upon, most likely their decision will come from whether they believe Neilson – that he made mistakes, omissions and failed to accurately recall details, but that he did not willfully intend to do anything criminal.

At the heart of this case is Neilson’s contention that he had verbal permission from his then-Jackson office legal counsel to own a part interest in the building. However, the man he says gave him permission testified that he did no such thing.

The jury began deliberations about 4 p.m. Thursday and went home about 6 p.m. They returned for more work about 9 this morning.

Watch NEMS360.com for more developments.