Acquittal by judge draws criticism

For seven days, jurors sat riveted in US District Court, listening to convicted drug dealers testify in a money-laundering case against Charlestown lawyer Paul G. Foster that they delivered bags to him stuffed with as much as $100,000 cash.

But hours after prosecutors finished their case on Sept. 22, jurors received calls saying the case was over -- it had been decided by the judge.

US District Judge Joseph L. Tauro acquitted Foster in a ruling that cannot be appealed, and which prevents prosecutors from retrying him. The decision is final because Tauro acquitted Foster after the jury was sworn in, and before it could render a verdict. Federal prosecutors say Tauro's actions show that federal criminal rules need to be changed so judges cannot exercise unchecked authority. A juror in the Foster case said she felt the outcome signaled the jury had wasted its time.

''I feel really disrespected and insulted," said Lyn Pohl, a juror in the Foster case. ''What is the point of the jury being there?"

Pohl, an administrator at Harvard Business School, said she found the evidence very persuasive that Foster knew the cash he used to buy a Mercedes and a boat, and to invest in nightclubs on behalf of his clients, came from illegal sales of ecstasy and OxyContin.

''I think it still should have gone to the jury," Pohl said. ''This was an intelligent jury."

Tauro said he was sympathetic to the juror's frustration, but he was fulfilling his responsibility to follow the law when he granted a defense request to acquit Foster before deliberations. ''The question in the case was not whether there was overwhelming evidence that he laundered money, the question was did he know there was drug money," said Tauro. ''I found there was no evidence warranting giving it to a jury."

The judge said, ''Anybody could wait and see what happened and hope the jury would find him not guilty, then you wouldn't have to, but that's ducking responsibility."

Tauro used authority under federal criminal procedure known as Rule 29, which permits judges to acquit a defendant if they find that no rational jury could convict based on the prosecution's evidence. If a judge rules after the jury has decided a case, prosecutors can appeal. But the unappealable decisions judges make during trial draw sharp criticism from prosecutors.

''It's the only time in the federal criminal trial system that a judge has unreviewable, unappealable, unfettered discretion," said First Assistant US Attorney Gerard T. Leone Jr. ''You've got to scrutinize the rule that allows one person to substitute themselves for a jury."

The Justice Department proposed an amendment that would require judges to wait until after a jury returns a verdict to rule on motions for acquittal, which would preserve the prosecution's right to appeal. But in May an advisory committee to the US Judicial Conference rejected it, opting not to refer it to the US Supreme Court, which could have forwarded it to Congress.

The US courts don't compile statistics on how often judges grant Rule 29 acquittals during trials. But a Justice Department survey of all US attorneys' offices found that judges acquitted defendants before a jury verdict in 184 cases between Oct. 1999 and mid-2003, according to a memo by Eric H. Jaso, counselor to the assistant attorney general.

Arguing for the amendment, Jaso wrote in September 2003, ''It is particularly necessary because preverdict judgments of acquittal are frequent, often wrong, and on significant occasions abusive."

Jaso cited a Massachusetts case in which Tauro acquitted Thomas Cooley of two bank robberies in September 2003 after a three-day trial, finding insufficient evidence.

Government witnesses testified that Cooley's fingerprints were found on the demand notes handed to tellers during the robberies in Andover and Mansfield.

But Cooley's lawyer argued that the fingerprint evidence wasn't enough to convict Cooley, because no witnesses had testified that he was in the banks at the time of the robberies. Tauro agreed.

''The rule is there, regardless of how anyone feels about it," said Tauro, adding that when the defense seeks an acquittal at the close of the government's case, judges must decide it.

Tauro and Chief US District Judge William G. Young said that Rule 29 is rarely used by federal judges in Massachusetts to acquit a defendant during a trial.

''It's rare, I suppose because in most cases the government at least comes up with enough evidence, arguably, to go to the jury and then it's the jury that decides," Young said. ''But sometimes they don't, and in those cases Rule 29 exists for the protection of the individual and properly so."

Leone disagreed, contending that anecdotal evidence gathered by federal prosecutors around the country suggests that federal judges in Massachusetts are on ''the high end" when it comes to acquitting defendants at the close of the government's case.

The state system has a comparable rule that permits judges to acquit defendants before jury deliberations. But Leone, a former state prosecutor, said he believes state judges are less inclined to take a case away from a jury than their federal counterparts. Salem lawyer Jeanne Kempthorne, a former federal prosecutor, cited more than a dozen cases between 1996 and 2001 in which federal judges in Massachusetts acquitted defendants during trial.

''It is a system that invites abuse," she said.

A judge may acquit a defendant simply because he doesn't like the federal sentencing guidelines, which call for long mandatory prison terms for certain crimes, Kempthorne said. And even if a judge believes there is insufficient evidence to send a case to a jury, she said, he could be wrong. Judges ''get overturned all the time," she said.

But Boston attorney Robert Sheketoff, who represents Foster, said judges must have the power to acquit defendants when prosecutors fail to prove the case at trial. ''Many cases have good jury appeal, but as a matter of law they're not sufficient," said Sheketoff, adding that sometimes prosecutors ''tar and feather" a defendant during the trial, but can't prove he's guilty.

In Foster's case, Sheketoff argued that the government showed that a lot of money went through the lawyer's account and that he associated with ''unsavory people." But, he said, the evidence wasn't sufficient.

Another juror in the Foster case, Alex Kevorkian, said he wasn't upset when the trial was cut short. He said he agreed with the judge about the lack of evidence against Foster.

''If you honestly don't believe there's a case against a person, why leave it up to chance? Make sure they get acquitted," Kevorkian said. ''It seems like not only a waste of money, but a waste of time and detriment to the defendant to have it always go to a jury."