Ju­rors pon­der ‘El Chapo’s’ fate

Le­gal ex­perts say the case could end with a mixed ver­dict.

Los Angeles Times - - FRONT PAGE - By Irene Pla­gianos Pla­gianos is a spe­cial cor­re­spon­dent.

If pros­e­cu­tors thought their sweep­ing and com­plex case would be hand­ily won, the jury is not oblig­ing.

NEW YORK — With two no­to­ri­ous prison breaks un­der his belt, a di­a­mon­den­crusted pis­tol on his hip, and a self-ag­gran­diz­ing in­ter­view with Rolling Stone, Joaquin “El Chapo” Guz­man seems to have done a pretty good job con­vinc­ing peo­ple across the globe that he’s one of the most pow­er­ful drug king­pins in modern his­tory.

The ques­tion re­mains, how­ever, whether the pros­e­cu­tors who have tried the fed­eral case against Guz­man have been as per­sua­sive to the only 12 men and women in the world who now mat­ter: the ju­rors de­lib­er­at­ing be­hind closed doors in a Brook­lyn fed­eral court­house.

The ex­haus­tive case against the 61-year-old, one that was a decade in the mak­ing, is cer­tainly the govern­ment’s to lose. Pros­e­cu­tors of­fered moun­tains of ev­i­dence in the mon­u­men­tal 12-week trial, in­clud­ing scores of in­ter­cepted phone calls and texts al­legedly cap­tur­ing Guz­man ar­rang­ing drug deals, and hours of tes­ti­mony from his clos­est as­so­ci­ates, giv­ing an un­prece­dented view of the in­ner work­ings of his Si­naloa car­tel — the bru­tal, multi­bil­lion-dol­lar nar­cotics em­pire pros­e­cu­tors say he helped build over decades.

By con­trast, Guz­man’s defense team — which ar­gued through­out the trial that Guz­man was framed in a multi­na­tional con­spir­acy, with the help of the “ly­ing” co­op­er­at­ing wit­nesses for the pros­e­cu­tion — pre­sented a 30-minute case, with a sin­gle wit­ness: an FBI agent who seemed less than com­fort­able with be­ing called to the stand.

The ju­rors, who spent last Mon­day through Thurs­day de­lib­er­at­ing — and will be back at it on Mon­day — are cer­tainly not speed­ing through their de­ci­sion.

If pros­e­cu­tors thought their sweep­ing case would be hand­ily won, the jury is not oblig­ing. But four days de­lib­er­at­ing af­ter such a long and in­tense trial should not be cause for govern­ment alarm, le­gal ex­perts say — though it could be a sign that the charges, as con­sti­tuted, have made it un­nec­es­sar­ily dif­fi­cult for ju­rors to find Guz­man guilty.

So what’s go­ing on? The men and women faced with de­cid­ing the in­fa­mous drug boss’ fate have a par­tic­u­larly com­plex set of charges to parse through — there are 10 counts in a 25-page charg­ing doc­u­ment cov­er­ing ac­cu­sa­tions that he sold and man­u­fac­tured hun­dreds of tons of co­caine, metham­phetamine and heroin; con­spired to mur­der a host of ri­vals; and helped run one of the largest in­ter­na­tional drug car­tels. Ju­rors have all the counts laid out on what’s called a ver­dict sheet, which is eight pages long. Some counts come with mul­ti­ple yes or no ques­tions ju­rors must an­swer, and one, the first count, in­cludes 27 sep­a­rate vi­o­la­tions to de­cide upon.

Count one, en­gag­ing in a con­tin­u­ing crim­i­nal en­ter­prise, es­sen­tially ac­cuses him of be­ing the mas­ter­mind be­hind the car­tel. Guz­man must be found guilty of at least three vi­o­la­tions for him to be found guilty of the count. If he is guilty of count one, he would re­ceive a manda­tory life sen­tence.

“I re­spect the jury for be­ing care­ful here,” said Lau­rie Leven­son, a pro­fes­sor of crim­i­nal law at Loy­ola Mary­mount Univer­sity in Los An­ge­les. “They’re not just check­ing the boxes here. At least some seem to be weigh­ing the charges, and be­ing just as me­thod­i­cal as the govern­ment was in pre­sent­ing the case.”

The ver­dict sheet the ju­rors must fill out is un­usual in its com­plex­ity, Leven­son said — but so is the case. “There aren’t many El Cha­pos out there.”

What makes the ver­dict sheet par­tic­u­larly try­ing is that first crim­i­nal en­ter­prise charge; it’s rarely used, be­cause it’s so dif­fi­cult to prove, said Jimmy Gu­rule, a law pro­fes­sor at Notre Dame and a for­mer fed­eral pros­e­cu­tor who pros­e­cuted drug king­pins in Los An­ge­les.

There’s also the fact that some of the charges are cross-ref­er­enced. Ju­rors, for ex­am­ple, are in­structed that they can find Guz­man guilty of vi­o­la­tion 27 un­der count one, which is mur­der con­spir­acy, only if they’ve also found him guilty of count two (con­spir­acy to man­u­fac­ture and dis­trib­ute co­caine, meth, heroin and mar­i­juana), count three (co­caine im­por­ta­tion con­spir­acy) or count four (co­caine dis­tri­bu­tion con­spir­acy).

Al­though le­gal ex­perts say it’s un­likely Guz­man will be fully ac­quit­ted, it’s very pos­si­ble ju­rors will come back with dif­fer­ent de­ci­sions on a va­ri­ety of charges. “You have to re­mem­ber that each count stands or falls on its own,” Gu­rule said. “They could be hung on some charges, ac­quit on some charges and find him guilty on oth­ers.”

With the large-scale drug-traf­fick­ing charges against him, even a guilty ver­dict on a cou­ple of the drug counts — even with­out the top crim­i­nal en­ter­prise charge — could still eas­ily send Guz­man away for life, ex­perts said. But when it comes to ju­ries, noth­ing can be taken for granted.

“At the end of the day, the bur­den is com­pletely on the govern­ment to prove each and ev­ery charge be­yond a rea­son­able doubt,” said Thad­deus Hoffmeis­ter, a law pro­fes­sor at the Univer­sity of Day­ton.

“And the truth is, no one can ever know what a jury is go­ing to do.”

R. Schemidt AFP/Getty Images

EVEN A mixed ver­dict could send Joaquin Guz­man to prison for life.

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