Criminal Law & Practice Section MCLE Program

Webinar

September 1, 2020

11:45 AM – Noon Welcome/Introductions Charles Rohde, Section Chair

Noon – 1:00 PM Program

Jury Nullification in Criminal Trials, featuring a Discussion on the 1919 Chicago Black Sox Criminal Trial

Neil J. Levine, Law Office of Neil J. Levine, P.C., and William F. Lamb, Middlesex County (NJ) Prosecutor Office (Retired)

Speakers’ Bio are attached

Jury Nullification is an accepted dynamic in criminal trials. Do you know how to use it in defense? Come and learn how to make use of this dynamic.

Link to Evaluation The evaluation must be completed in order to receive CLE credit. https://www.surveymonkey.com/r/CriminalLaw09012020

Next Meeting: 10/6/2020

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Speakers’ Bio

NEIL J. Levine

Neil is a 1990 graduate of Georgetown University Law Center. He was a member of the DuPage County Public Defender’s Office from 1992 to 2007, and has been in private practice since, concentrating in criminal defense and immigration law.

WILLIAM F. LAMB

New Jersey state and county prosecutor, now retired and living in New Hampshire

Middlesex County Prosecutors Office (1980-2007): Served as First Assistant Prosecutor for Prosecutor Bruce J. Kaplan from 2002 to 2007. Duties included general oversight of day-to-day operations of MCPO; advising the prosecutor on personnel and policy matters; trial of select high-profile criminal cases. Note: Middlesex County is an urban/suburban jurisdiction located in North-Central New Jersey and is the state’s second-most populous county (app. 825,000). Retired at age 60 in 2007 and relocated to current home in Meredith, New Hampshire. Not a member of NH bar and no longer practice law.

Chief of Pretrial Operations/Grand Jury Section (1992-2002): Duties included training of staff attorneys; orientation of incoming grand jury panels; presentation of approximately 4,500 cases to the grand jury; handled police use of deadly force inquiries/grand jury presentations, including four fatal white cop/black deceased incidents; trial of select high profile cases, including two death penalty murders.

Acting Middlesex County Prosecutor (April-May 1992, and for more than 500 days at various times during 1983-2007 when Prosecutors Rockoff, Gluck, and Kaplan were on vacation or out of state).

First Assistant Prosecutor for Prosecutor Alan A. Rockoff (1983-1992): Duties same as above-stated.

Trial Team Leader/Member (1980-1983): Trial of criminal cases running from drug offenses to homicides and the handling of all other matters coming before various Middlesex County criminal court judges.

New Jersey Division of Criminal Justice (1976-1980): Deputy Attorney General assigned to the Appellate Section. Handled approximately of 150 appeals of criminal convictions with numerous oral arguments, including 13 appearances before the New Jersey Supreme Court.

Other: Certified as instructor by NJ Police Training Commission in 1977; periodically taught law of arrest, search, and seizure/interrogation and identification procedures/NJ penal code, etc., at various police academies and attorney training seminars for 30 years; occasional lecturer for NJ ICLE; member of various NJ Supreme Court and Middlesex County criminal justice committees.

Miscellaneous: Admitted to the NJ bar in 1975; Law clerk, NJ Superior Court, Chancery Division, Essex County (1975-1976); Legal Assistant, Essex County Prosecutors Office (1974); medic, US Eighth Army, South Korea (1970-1971). Graduate of St. John’s University School of Law (1975), Siena College (1969), and Bloomfield (NJ) High School (1965). Played varsity basketball in college and high school. Married with three adult children and two grandchildren. Interests include playing golf, reading, and baseball/American/Irish history. 2019 recipient of the Bob Davids Award, the highest honor conferred by the Society for American Baseball Research.

Expertise related to CLE Topic: Jury Nullification in the 1921 Cook County Trial of the Black Sox

Member of the Society for American Baseball Research since 1993. SABR is a 6,000-member national organization devoted to the research, publication, and dissemination of baseball history. Charter member of the SABR Black Sox Scandal Research Committee and regular contributor to its semi-annual newsletter. Author of Black Sox in the Courtroom: The Grand Jury, Criminal Trial and Civil Litigation (McFarland, 2013); “The Black Sox Scandal” in Scandal on the South Side (SABR, 2015); “Jury Nullification and the Not Guilty Verdicts in the Black Sox Case,” Baseball Research Journal, Fall 2015 and winner of the 2016 McFarland-SABR Baseball Research Award; and “An Ever-Changing Story: Exposition and Analysis of Shoeless Joe Jackson’s Public Statements on the Black Sox Scandal,” Baseball Research Journal, Spring 2019. Also, contributor to the recent SABR Eight Myths Out project and author of its critical analysis of the rampant misrepresentations, fictions, and frauds present in the 1963 Eliot Asinof book/1988 John Sayles film Eight Men Out, with particular attention devot to their burlesque of the Black Sox legal proceedings. Speaker at public Black Sox forums including the 2014 SABR convention in Philadelphia and the 2019 symposium conducted at the Chicago History Museum.

Contacts: email: wflamb12@yahoo.com; telephone: 603-279-6058

JURY NULLIFICCATION AND THE 1921 CRIMINAL TRIAL OF THE BLACK SOX CASE

AN OVERVIEW

In October 1919, the Cincinnati Reds defeated the Chicago White Sox in a best-of-nine games World Series, an outcome that surprised most baseball experts. Despite ensuing rumors that White Sox players had lost deliberately, the matter received no official attention for almost a year. Then in September 1920, a Cook County grand jury empaneled to inquire into reports that a meaningless late-1920 season Cubs-Phillies game had been rigged unexpectedly began focusing on the integrity of the previous year’s World Series. Before the proceedings concluded, the grand jury returned indictments that charged eight White Sox players [quickly dubbed the Black Sox] and five gamblers with conspiracy to commit fraud by means of false pretenses and/or via a confidence game, all stemming from the corruption of the 1919 Series. A superseding indictment returned in March 1921 expanded the roster of defendants to include five more gamblers and added substantive fraud counts, as well.

In late-June 1921, a jury trial of 11 of the accused (seven players and four gamblers) commenced before Judge Hugo M. Friend, later a distinguished Illinois jurist but then presiding over his first significant trial. Presented during the government’s case-in-chief were Bill Burns, a former major league pitcher turned gambler and codefendant-turned-State’s evidence, and onetime pro boxer Billy Maharg, an unindicted co-conspirator. Both Burns and Maharg were fix insiders and their testimony deeply implicated the accused ballplayers (save Shoeless Joe Jackson with whom they had had no direct contact) and gambler defendant David Zelser in the plot to corrupt the Series. The prosecution also introduced in evidence the grand jury testimony of Jackson, Eddie Cicotte, and Lefty Williams which included admissions by each that he had accepted a gambler payoff in return for agreement to participate in the Series fix. In addition, the government’s proofs included the testimony of Judge Charles McDonald, the presiding judge of the Chicago criminal courts, who informed the jury of admissions of fix guilt made to him in chambers by Jackson, Cicotte, and, to a lesser extent, Williams prior to their appearances before the grand jury. But for some inexplicable reason, the prosecution did not further buttress its case through eliciting the admission of fix participation that ballplayer defendant Happy Felsch had made to Chicago Evening American reporter Harry Reutlinger shortly after the Cicotte/Jackson/Williams grand jury testimony was leaked to the press.

The constraints of the Confrontation Clause of the Sixth Amendment and the proscription on hearsay evidence rendered the proofs against the other defendants a mixed bag, from strong but somewhat circumstantial (ballplayer defendants Chick Gandil and Swede Risberg, and gambler Zelcer) to thin (ballplayers Felsch and Buck Weaver, and gambler Carl Zork) to virtually nonexistent (gamblers Ben and Lou Levi). At mid-trial, Judge Friend dismissed the charges against the Levi brothers on evidential insufficiency grounds, and placed the prosecution on notice that convictions returned against Felsch, Weaver, and/or Zork might be vacated by the court post-verdict.

When the defense turn came, the gamblers went first, with Zelcer’s first-person denial/alibi claims wounded on cross-examination by the prosecution. The Zork defense wisely kept the accused off the stand and shredded the flimsy case presented by the government against the St. Louis gambler with credible, non-partisan fact witnesses. The Gandil defense preceded anticipated testimony from Chick with witnesses designed to undermine the credibility of Bill Burns, but with little apparent effect. Then, abruptly, the Gandil defense rested, as did the defense of the other accused players. Thus, none of the ballplayer defendants testified before the jury.

[Note: Midway through the prosecution case, Judge Friend conducted a testimonial hearing out of the jury’s presence to consider a defense motion to suppress the Cicotte/Jackson/Williams grand jury testimony. The defense did not assert that the testimony that the three had given was untrue or challenge the accuracy of the grand jury transcripts. Rather, it claimed that Cicotte, Jackson, and Williams had been induced to testify by broken off-the-record promises of non-prosecution made by lead grand jury prosecutor Hartley Replogle and White Sox corporation counsel Alfred S. Austrian, and that prosecution use of that testimony was therefore violative of the Due Process Clause of the Fifth Amendment. With questioning strictly confined to that issue, Cicotte, Jackson, and Williams took the stand and made their claim. Replogle and other prosecution witnesses flatly denied that any such promises had been made, and Judge Friend resolved the credibility contest in their favor. Thus, prosecution use of the grand jury testimony was sanctioned, once the transcripts had been redacted to remove the names of Chick Gandil, Buck Weaver, and the other non-confessing defendants. The anonym Mr. Blank was to be inserted wherever those names appeared in the grand jury transcript.]

After some inconsequential rebuttal (Judge Friend rejected an inapt prosecution proffer of reporter Reutlinger as a rebuttal witness, as the Felsch defense had not offered any defense), lengthy closing arguments by counsel, and the court’s instructions, the case went to the jury. Two hours and 47 minutes later – which included almost an hour needed to round up all the attorneys and defendants – the jury returned its verdict: Not Guilty as to all nine remaining defendants on all of the nearly two dozen specific charges.

Once the final verdict was announced, the courtroom erupted with joyous celebration by defense supporters. Eddie Cicotte shook the hand of jury foreman William Barry, and defendants and jurors clapped each other on the back. Some of the defendants were then hoisted onto juror shoulders and paraded around the courtroom before they all retired to the courthouse steps for a jubilant group photo. Later that evening, jurors and the ballplayer defendants engaged in a joint celebration at a nearby Italian restaurant that lasted into the wee hours of the morning. Hours thereafter, the atmosphere changed. Baseball commissioner Kenesaw Mountain Landis issued his famous edict permanently banning the Black Sox from Organized Baseball, their acquittal in court notwithstanding.

FIVE REASONS WHY MUCH OF THE BLACK SOX VERDICT REEKS OF JURY NULLIFICATION

Like many multi-defendant cases, the proofs against the Black Sox accused were uneven – overwhelming against some defendants, less so against others, and conspicuously weak against a few. In the presenter’s view, the government more than proved its core indictment conspiracy charges against defendants Eddie Cicotte, Joe Jackson, and Lefty Williams, and presented a viable and persuasive case against defendants Chick Gandil, Swede Risberg, and David Zelcer. Although the historical record documents the fix complicity of defendants Happy Felsch and Buck Weaver (as well as that of the severed-from-trial Fred McMullin), no issue is taken with their acquittal based on the criminal trial record. The charges against tinhorn gambler defendants Carl Zork, the excused-from-trial Benjamin Franklin, and the Levi brothers, meanwhile, were entirely ill-considered and never should have been lodged in the first place. Instead, the government should have focused on fix financier Arnold Rothstein (who talked his way out of indictment before the Cook County grand jury) and fugitive or unextradited gambler defendants Sport Sullivan, Abe Attell, Hal Chase, and the mysterious Rachael Brown (likely capable Rothstein lieutenant Nat Evans).

Problematic aspects of the prosecution strategy notwithstanding, Cicotte, Jackson, and Williams, and arguably Gandil, Risberg, and Zelcer, should have been found guilty on the conspiracy charges. Leaving

aside simple deliberation room irrationality and in the absence of any indication of jury tampering, the acquittal of these defendants, if not the others, reeks of jury nullification. Here is why:

1. Given decent proofs, then-applicable Illinois criminal law made a criminal conspiracy charge comparatively easy for prosecutors to establish. Under both its statutory and common law versions of the offense, the crime of conspiracy had only two elements in 1919 Illinois: (1) an agreement between two or more parties, and (2) said agreement involved commission of an unlawful act. See People v. Lloyd, 304 Ill. 23, 136 N.E. 505 (Ill. Sup. Ct 1922). Unlike modern criminal conspiracy statutes, completion of the offense did not require an overt act, something taking the conspiracy plot beyond the talking stage. Mere agreement to commit an unlawful act was sufficient. In the Black Sox case, the unlawful act prerequisite was furnished by Judge Friend’s ruling pretrial that the corruption of the 1919 World Series and the resultant windfall for in-the-know gamblers at the expense of clueless Chisox bettors fell within the purview of fraud by false pretenses or via a confidence game under Illinois law.

Contrary to popular belief, this relieved prosecutors of the burden of proving that the Black Sox players had tried to throw the Series or any particular game of it (although considerable evidence indicated that at least Game One and Game Two had been dumped). All that that the prosecution needed to prove – beyond a reasonable doubt – was that the defendants had AGEED to participate in a Series fix. See again, People v. Lloyd, above, at 304 Ill. 43, 136 N.E. 525.

2. The evidence that Eddie Cicotte, Joe Jackson, and Lefty Williams, at a minimum, had agreed to join the Series fix plot was overwhelming and uncontroverted at trial. Each had admitted accepting a gambler payoff in return for his fix participation during sworn testimony given to the Cook County grand jury in late- September 1920. And contrary to the fiction presented by filmmaker John Sayles in his film version of Eight Men Out, redacted Cicotte, Jackson, and Williams grand jury testimony was read into the record at near-stupefying length during trial. Adding to that was the testimony about admissions of fix participation that each had made in Judge McDonald’s chambers, and the direct and largely unshaken testimony of fix insiders Bill Burns and Billy Maharg implicating Cicotte, Williams, and the others (if not Jackson) in the Series plot. In sum, the conspiracy charges lodged against at least three of the ballplayer defendants were proved in spades.

3. The quickness of the verdict indicates that the jury did not undertake serious deliberation, if any deliberation at all, on the charges. See State of California v. Orenthal James Simpson.

4. Post-verdict events demonstrate jury partisanship and bonding with the hometown ballplayer defendants, in derogation of the juror oath to consider and decide the case dispassionately.

5. The absence of any alternative explanation for the acquittal of Cicotte, Jackson, and Williams. Contrasted with a strong and unrefuted prima facie case presented by the prosecution, the trial record contains no evidence, compelling or trivial, that Cicotte, Jackson, and Williams did not do exactly what they admitted to the grand jury – accept gambler payoffs (Cicotte, $10,000; Jackson, $5,000 of a promised $20,000; Williams, $5,000) in exchange for agreement to participate in the World Series fix. Nor does the record contain any evidence-based alternative to their conviction on the conspiracy charges. In short, Cicotte, Jackson, and Williams had no defense to the conspiracy charges. The only plausible explanation for the Cicotte, Jackson, and Williams acquittals is juror nonfeasance, a refusal to apply the law to undisputed facts that mandated conviction on the conspiracy charges. That is the epitome of jury nullification.

Bill Lamb

A more detailed discussion and analysis is provided in “Jury Nullification and the Not Guilty Verdicts and in the Black Sox Case,” Baseball Research Journal, Fall 2015, accessible via www.sabr.org. Or email me at wflamb12@yahoo.com, and I will be happy to send you the original manuscript version of the article.