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Picking a jury for bank trial could be a challenge

Updated: November 30, 2012 - 3:15 pm

Posted: November 30, 2012

By Bill Cresenzo

bill.cresenzo@insidebiz.com

When former Bank of the Commonwealth President Ed Woodard Jr., his son T. Brandon Woodard and their co-defendants stand trial next year, their fates will be determined by a federal jury of 12 people from Hampton Roads.

Barring any continuances or other delays - defense attorneys have asked for another 60 days to prepare for trial - the Woodards, along with Simon Hounslow and Stephen Fields, all former officers at the bank - and Dwight Etheridge, a Norfolk developer, are slated to stand trial on Jan. 8.

They are facing fraud charges in connection with millions in loans the bank made to Etheridge and other developers and their attempts, according to the charges, to hide their losses from the bank's board.

Prosecutors claim the fraud led to the bank's collapse last year and that the bank's failure will cost the federal government more than $260 million.

Both the prosecution and the defense will have a lot to consider when they question and pick potential jurors who will decide whether the men are guilty beyond a reasonable doubt or to acquit.

"It's more of an art that a science," said Jeffrey Bellin, a former federal prosecutor and professor at the William and Mary Law School, speaking in general terms about the selection of jurors for federal white-collar crime trials.

"Prosecutors and defense attorneys have a lot of theories about what type of juror they need, but they never really know if they were right or wrong [until a verdict].When people show up for jury service, they are there because they want to do their civic duty, and they will follow their conscience and do their best. If the evidence suggests they should convict, then they will."

Defense attorneys declined to comment on jury selection for the case, with the exception of Melinda Ruth S. Glaubke, who is representing Etheridge.

"We just want a fair jury," she said. "That's all."

Peter Carr, a spokesman for the U.S. Attorney's Office for the Eastern District of Virginia, also declined comment.

Among the factors involved in the selection of a jury that will hear the case in downtown Norfolk are these:

* The trial will be complicated.

"The trial in this case will involve dozens of fact witnesses, government agents, cooperators, representatives of financial institutions and many others," U.S. Attorney Neil MacBride said in court documents.

Defense attorneys say in court filings that prosecutors have turned over 2.1 million pages of discovery documents they're culling through in order to identify the evidence the government has against their clients.

The defense has made it clear that it faces a gargantuan task. In one court filing, Jeremiah Denton III, an attorney for Brandon Woodard, said he requested a meeting with prosecutors so they could point out the documents related to the charges against his client, but prosecutors refused.

"Therefore, it is necessary for defense counsel to deal with the entire set of documents, the vast majority of which are not related to T. B. [Brandon] Woodard in any meaningful way," Denton said in the filing.

In another court filing, Etheridge's attorney, Glaubke, asked the court to authorize payment for an additional attorney or paralegal to assist herself and Etheridge with the review of the documents. Judge Raymond Jackson denied the request.

The sheer volume of the evidence makes this type of trial far more convoluted than a typical trial.

"You are going to want jurors who are not going to say, 'I need to see an eyewitness or hear a confession,' but are willing to go piece-by-piece through the documentary record to find enough circumstantial evidence to convict," Bellin said.

* The trial could be long.

"In a case like this, there will be more jargon and technical information and complications, not to mention that the trial is likely to be quite lengthy," said James Duane, a professor at Regent Law School, who, like Bellin, spoke in general terms about federal jury selection. "The longer the trial goes, the greater the problems manifest. If a trial is a one-day trial, most people can get off work for a day. As the length of a trial increases, the potential pool of available jurors decreases exponentially."

* The defense wants jurors who know little or nothing about the case.

Defense attorneys asked that the trial be moved out of Hampton Roads, citing publicity surrounding the case. Jackson denied the motion.

"The primary objective of the lawyers is to identify jurors who can't be trusted because they know too much about the case, " Duane said. "Can you disregard preconceived notions and make decisions based on the evidence?"

Whether someone read newspapers or the Internet or watches TV to stay abreast of current events is basically irrelevant, Duane said.

"Whether someone may or may not have their fair share of intellectual curiosity and sophistication doesn't necessarily mean that he doesn't have the mental ability necessary to digest the evidence in the case," Duane said.

* The defense will want to dismiss potential jurors who have a bias against bankers.

Prosecutors have held the defendants up as examples of the greed that helped lead to the economy's collapse.

"Make no mistake," Rick Raven, chief of the Internal Revenue Service's Criminal Investigation Office, said last summer when the defendants were indicted. "This case is about greed."

"We saw how brutally and successfully President Obama and his handlers tried to make this last presidential campaign into a campaign about class warfare," Duane said. "Look how much energy and advertising was related to this idea that Mitt Romney is just there for the 1 percent. No doubt about it, there is a lot of resentment right now by people who believe, perhaps with good reason, that their problems can and should be blamed on the more prosperous members of the community, both inside and outside of the banking industry. Those jurors will be bad for the defense."

* Likewise, the prosecution may have to contend with bias against law enforcement.

Prosecutors tend to favor jurors who are or who have family members in law enforcement, or those who have had good experiences with law enforcement.

Defense attorneys, however, tend to favor jurors who might not have such a good opinion of prosecutors, police officers, federal agents and the IRS, Duane said.

"They are much more likely to view law enforcement as excessive, overbearing, over the top, unhelpful, uncooperative, unreasonable," he said. "That tends to make these people better jurors for the defense."

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