A federal judge took the extraordinary step of removing a juror from a wealthy developer's tax trial because he could not "in good conscience let this jury deliberate alongside someone who feels that she must stand up for White people."
The judge said that he couldn't allow Juror 26 to decide the fate of developer Jack Fisher, who is
The juror told Batten on Monday that she was "standing up for White people" as he investigated complaints about her conduct and statements.
"I am personally very troubled that I am perceived as standing up for and condoning racist behavior," Batten said Wednesday, according to a transcript. "I am not."
Batten has struggled to maintain control at a trial where prosecutors said he improperly allowed questions of race to infect deliberations. Defense attorneys said if the defendants are convicted, they'll appeal Batten taking the rare step of replacing a juror in the middle of deliberations. The jury will return on Friday after failing to reach a verdict Thursday.
Fisher is accused of selling fraudulent tax shelters through deals known as syndicated conservation easements that are intended to preserve green space. Prosecutors allege Fisher used inflated appraisals and backdated documents to defraud the US and enrich himself. At least 28,000 taxpayers who claimed $21 billion in deductions in syndicated deals have been audited.
After a nine-week trial, deliberations got off to a rocky start on Sept. 14. When Juror 26 stopped deliberating, Batten had to warn jurors not to say "f—- you" to each other. He also interviewed several members of the predominantly Black jury about their discord.
Batten said Wednesday Juror 26 lied to him in his chambers Monday, primarily by accusing a Black man, Juror 44, of saying the defendants deserved to go to jail "because they are rich, White and entitled." In recounting that alleged incident, Juror 26 told the judge she was "standing up for White people."
Prosecutors had urged Batten to dismiss Juror 26 over her comments, lying to the judge and refusing to deliberate. But the judge wavered as defense lawyers argued he misconstrued her statements and she resumed deliberations. Appeals courts typically set a high legal bar for removing a juror trying to reach a unanimous verdict.
By Wednesday, Batten told the lawyers he had a change of heart.
"This has rung in my ears since I heard it the first time," Batten said.
Defense lawyers protested that jurors had already indicated they'd reached a verdict on eight or nine of the dozens of charges against Fisher and his co-defendants. That demonstrated Juror 26 was working with the other members of the panel, they said.
"I'm just telling you I am inside out over allowing this person to stay on the jury with everything that's happened against her," Batten said. "It's not just that one statement, but the false statement about what Juror 44 allegedly said that troubles me."
Batten said that Juror 26 lied to him several times in his chambers, but when she said she was "standing up for White people," she told the truth.
"That is an unbelievably complicated finding of fact on your part," said Donald Samuel, an attorney for Fisher co-defendant James Sinnott, according to the transcript.
Batten denied motions to grant a mistrial and said the 11th Circuit Court of Appeals can decide if he was right.
"Evidence of racism is rarely, if ever, this explicit," Batten said. "It wasn't subtle in this case."
Fisher's attorneys didn't immediately respond to a request for comment. A Justice Department spokesman and Samuel declined to comment.
Fisher's lawyers filed a motion Thursday requesting that the judge remove five jurors, including Juror 44, or declare a mistrial. Juror 44, they said, said "F—- you" to Juror 26, and allegedly made race-based statements. The judge has already denied several bids for a mistrial.
Before the panel started deliberating anew with an alternate juror, the judge summoned Juror 44 to the courtroom Wednesday to ask him about the statements that Juror 26 attributed to him. Prosecutors had previously asked for his removal if he made race-based statements. The judge ultimately didn't dismiss Juror 44.
Batten asked Juror 44 if at any time during the trial he suggested to other jurors that the defendants "should be found guilty because they are White, rich and entitled?" The juror said no.
"Did you ever say anything that injected the concept of race into the case?" the judge asked.
"Nope," the juror replied.
