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1 and that of course is very similar to the Chappee case in the
2 First Circuit. Justice Stevens talks about it being a
3 legitimate decision, but even an unethical one like sandbagging
4 I think is going to turn out to bind the client.
5 The other way this could be a strategic decision, if
6 what they said to themselves, let's sandbag, but more, look,
7 she is a pro-defense juror given what we know about this
8 checkered history, let's keep her on because we're likely to
9 get an acquittal now. That's the government's view here.
10 That's what they've advanced in their papers. And I think
11 that's not at all what happened in this case.
12 I think the testimony, and the Court referred to the
13 testimony and said the facts were largely undisputed. That
14 doesn't mean the inferences from them were ones that all sides
15 were ready to adopt. But I don't think the core facts were
16 much in dispute at the hearing. And what happened here,
17 particularly on that day of May the 12th, is that Ms. I will
18 say Theresa because I have trouble with her last name, I
19 apologize, had real second thoughts when she thought about that
20 juror note and the legal words in it. She then sent paralegals
21 to work -- as your Honor knows, the one thing about the Brune
22 firm is they had an army of them. And she got information
23 back, and her e-mail said something like, Jesus, I think it's
24 her. And whether that is characterized as fleeting or a belief
25 held longer than that, there is no doubt that she thought it.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
DOJ-OGR-00010161