I was contacted by a juror from the notorious Cannibal Cop case who wanted to break the jury’s silence following the stunning reversal of their guilty verdict by the judge presiding on the case. Since the person wants continue to remain anonymous for as long as possible, I’ll call them Juror X (“JX”). What JX revealed about the experience of sitting on the Cannibal Cop case has great value for trial lawyers and sets an interesting example of the often conflicting roles of fact, law, judge and jury.
First a quick recap of the case: Gilberto Valle was a newlywed with a young daughter and six years serving in the NYPD when his wife, Kathleen Mangan, found disturbing photos on their shared computer and shocking chats from the website DarkFetishNet.com. The photos and chats related to ways to stalk, kill and then eat women. Hence the term “Cannibal Cop.” The wife had found similar images and posts before but this time she also saw her own name on a list of “potential vicitms.” That led her to call police and led to Valle’s arrest. The arrest of course caused a sensational splash in the media. It allowed various tabloids and news outlets to explore the “Dark Web” or “Deep Web” that lies beneath the surface of the world wide web we all surf on a daily basis. Sites there cannot be indexed by standard search engines. So the case was looked at from all angles by a variety of folks. There was just one problem – what evidence was there that Valle actually planned to act on the posts he made about these women? How could law enforcement and eventually a jury in a court of law distinguish between mere fantasy and actual criminality?
The trial: The FBI were pressed by the NYPD to close the case quickly and arrest Valle, and so they did. They “made a federal case” out of it because Valle allegedly took his wife and child across State lines to Maryland to visit an old college friend. That college friend was also on Valle’s “Wish List.” The Feds charged Valle with misuse of the federal National Crime Information Center (NCIC) database which he accessed to get personal info about women on his list and with Conspiracy to Commit Kidnapping.
After a day of jury selection, JX was chosen. Federal jury selection is very different from State jury selection in that the judge does all the questioning and the lawyers do not get to interact with the prospective jury panel. JX felt that the judge did a fair and thorough job of going through their particulars and eliminating folks who might have bias – but then again JX had never served on jury before so JX had no idea what State jury selection entailed or how lawyers approach jury selection as an opportunity to plant seeds in the minds of jurors and test who may have “ready ears” for their theory of the case. The jury selected was nearly equally split between men and women; was racially and economically diverse; and included a corporate lawyer on the panel.
The government’s case consisted of Valle’s wife (who JX reported the jury felt was overly-rehearsed and not genuine despite repeatedly breaking down on the stand); a few of Valle’s “Wish List” women including the college friend he went to see with his family; and then a string of FBI agents and techs who painstakingly went through Valle’s posts and chats with other members of DarkFetishNet.com from London, New Jersey, and India. JX told me that even though many of the posts were graphic and involved details of violence and sexual abuse, the AUSA’s soft spoken style and the repetitive nature of the testimony made this the sleepiest part of the trial. Note to trial lawyers: Find a way to make repetitive testimony interesting to jurors – use slides, posters, or other jury devices; change your tone, your inflection; find a way to summarize or condense it; and occasionally check on the jury to see if they are losing interest or dozing off. JX noted that until summation none of the lawyers made any eye contact with jurors as they were presenting or challenging the evidence. The defense case consisted of the owner of DarkFetishNet.com (a Lithuanian native) trying to explain his site and how it is a “fantasy fetish” site. Part of the reason this witness failed to pack any punch was that by the end of the trial, the jury had gotten to not really like the older male defense lawyer who apparently was handling this witness; they viewed his style as belligerent and annoying. JX said Julia Gatto – Valle’s lead attorney- was “competent and organized” but lacked any real emotion or connection with the jury. JX stated that it took a great deal of effort not to impugn the negative aspects of the defense lawyering on the defendant. JX always “thought trial lawyers were supposed to try and connect with the jury.” I replied that indeed that should be a main goal of any trial lawyer. JX said that none of the four main lawyers in the case made any such connection with the panel.
One of the most surprising things that JX told me was that it was not until the lead AUSA summed up for the government that JX (or any other juror as JX learned during deliberations) had any idea where the various pieces of evidence fit into the case. JX said the opening statement did not provide a road map or even a discussion of the various elements that were to be proven. Several times during summation JX thought “Aha – so that’s why that was put into evidence.” Seems like a rookie mistake from the gov’t side not to take the opportunity in opening to explain the theory of the case and what evidence would be presented to establish that theory.
The charge: The court thankfully gave a written copy of the charge to the jury because it was long and convoluted according to JX. Nevertheless they asked to have portions of it read back a few times before they settled into true deliberations. More and more judges are giving jurors copies of the written instructions to take into the courtroom with them. JX was surprised to learn that it was not done in every case and said it was hard to imagine the jury wrestling with all that legal language without a written copy before them. JX said that the jury relied heavily on the lawyer-juror’s interpretation and helpful explanations of the terms. While the lawyer had no criminal or trial experience, the jury still did turn to him to break down the elements of the charge into regular language. Something to think about for trial lawyers considering leaving a lawyer on their jury. While JX emphatically stated that the lawyer did not put in his own thoughts about what the law should be or even was, its not hard to imagine a lawyer-juror who might not be as proper and who might try and spin the charge a certain way to get a certain result
The deliberations and verdict: Once they felt comfortable with the charge and elements, the jury got down to the hard work of determining the defendant’s guilt. JX said the jury was a cohesive, tight knit bunch. They spent alot of time together during the 8-9 days of trial because of the “numerous and annoying” sidebars that repeatedly interrupted the trial. During those breaks, which sometimes lasted hours, some jurors read, others chatted, but JX and many others soon formed a Texas Hold’Em poker game, with chips and everything! While real money did not change hands, the game was serious and provided a huge distraction from the mundane task of sitting and waiting. The lawyer in those sessions also helped to remind the jury not to discuss the case. JX also mentioned that the lawyer helped them stay true to their oath when they were tempted to speculate on what evidence was kept out and why or what a sidebar was about. The lawyer kept reminding the panel to just focus on the eivdence as promised.
The jury put up easels with large white sheets of paper on one side of the room on which were written the various elements of each charge. On the other side they put up easels with the facts of the case that applied to the elements. The jury quickly agreed upon a conviction for the misused database count of the indictment as there really was not dispute that Valle used the NCIC to further either his fantsy or his conspiracy. – either were improper uses. JX said that the defense did not help themselves by trying to explain this away; it would have likely been better for the defense to concede that count and focus on the conspiracy count.
In deliberating on conspiracy, the jury grappled over one element – “the overt act.” In order for a conspiracy to move from a mere thought to a criminal plan of action, there must be at least one overt act done in furtherance of the conspiracy. Criminal defense practitioners know that the Feds love to charge conspiracy. The planning of a crime is often easier to prove than the commission of a crime and its an easy way to grab anyone else who helped the target defendant along the way and then turn them into a witness for the prosecution.
Here the jury was trying to determine if the defendant stepped beyond fantasy to a real plan of action he intended to execute. They spent most of their 4 plus days of deliberations on this assessment. They taped up a timeline on the wall which included many of the defendant’s conversations from the chat room. Not content to just read them to themselves, they decided to “role play” the conversations by reading aloud the posts and having one juror take one side of the conversation and another juror take the other side. This helped bring the conversations to life and helped them try to figure out the “intent” of each speaker. The “turning point,” as decribed by JX, was when they realized that as soon as Valle got home from his jaunt to Maryland, the first thing he did was go on the web and tell his chat room buddies that he had successfully cased his first place of attack. That he had staked out his first victim’s home and office and had formulated how he would do the deed was the overt act necessary to meet the definition in the jury’s mind. If it was just fantasy, the jury believed, he would not have immediately rushed to report the results of his trip. That, coupled with Valle’s use of real names and real pictures of his “wish list” victims, turned this from a “thought crime” to a real crime. The jury came out and reported its vedict -Guilty on both counts.
Aftermath: The jury did not want to speak with media afterwards, but they kept in touch with each other. They read all the newspaper accounts of the case which were kept from them during their time on the trial. They understood that the case was gray area of law and in fact a dangerous one, as they were also aware that in the US we do not punish mere thought crimes. But they all felt secure that they had given the defendant every benefit of the doubt, hd presumed him innocent but were in the end sufficiently convinced by the evidence that he crossed the line into a true crime and that he would have acted on it but for his arrest.
Judge’s Ruling: The jurors were all aghast when one year and four months after their verdict, Judge Paul Gardephe ruled that there was insufficient evidence to try Valle on the Conspiracy count. While he issued a 118 page decision, the only part that really mattered was this statement:
“The evidentiary record is such that it is more likely than not the case that all of Valle’s Internet communications about the kidnapping are fantasy role-play. No real-world, non-Internet based steps were ever taken to kidnap anyone.”
The decision shocked the jury panel and JX calls the ruling “abominable.” JX said that the jury believed it was their province to determine if the facts met the law and that they felt very strongly that Valle’s trip to Maryland to “case the joint” so to speak was an overt real-world step taken to kidnap a real victim. Valle identified her as a potential target; organized a trip to go check out her place of residence and work; and then immediately reported his results to his cohorts on the cannibalism website. JX still feels that the jury got it right and is 100% confident that the jury followed the rules and made their determination based soley on the evidence.
Conclusion: While JX said the judge’s ruling left JX with a bitter taste in the mouth, JX relished the jury experience; one JX had long dreaded. JX said that working with a cohesive group on such an important issue – a person’s freedom – was strenuous, challenging and rewarding. It is unusual for the trial judge to wait this long to reverse a conviction but then again, Valle was still convicted of one count and therefore would likely have served this amount of time anyway. But the court had the power at the end of the government’s case or at the end of all the evidence to dismiss the conspiracy count if he believed that as a matter of law there was insufficient evidence to sustain it. It certainly must be extraordinarily frustrating for the jurors, having sat through a long and difficult trial, to have their verdict overturned.
Trial lawyers can learn alot from the many points JX raised in the conversation with me. The importance of making a connection with jurors; of having a roadmap to explain your proof; of recognizing that it is hard for jurors not to impugn your personality onto your client, etc etc.The case is up on appeal and the Second Circuit will have to decide if Judge Gardephe did the right thng under the law or overstepped his bounds. In the meanwhile two others who chatted with Valle in DarkFetishNet.com – Michael Van Hise and Christopher Asch – were convicted of Conspiracy to Commit Kidnapping. Their lawyers are waiting for Judge Gardephe to rule on their dismissal motions as well.