So you spend eight months listening to evidence in a federal drug conspiracy trial, and another two months deliberating, carefully considering the evidence and the judge’s instructions.

You convict one of the defendants of distribution of five grams of cocaine base (crack) but acquit him of (from PACER):

  • 21 USC Section 846; Conspiracy to Distribute Narcotics; Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms or More of Cocaine and 50 Grams or More of Cocaine Base
  • 18 USC Section 1962(d); Racketeering – Murder; Conspiracy to Participate in Racketeer Influenced Corrupt Organization
  • 18 USC 1959(a)(1); Racketeering Activity, Murder; Violent Crime in Aid of Racketeering Activity
  • 18 USC 924(c) and 18 USC 2; Violent Crime/Drugs/Machine Guns; Use of a Firearm and Aiding and Abetting
  • 18 USC 922(g)(1); Unlawful transport of firearms; Unlawful Possession of a Firearm and Ammunition by a Convicted Felon

To recap, you convict the accused of selling somewhere in the neighborhood of five sweet and low packets worth of crack, but acquit him of selling more than fifty, or selling more than five kilos of powder cocaine and also find him not guilty of murder, racketeering, federal weapons charges and some other counts I didn’t bother to list. In short, you were convinced that he was the lowest of drug dealers on the block, and nothing else.

A few months after getting your regular life back, you come across a press release by the Department of Justice claiming the defendant was a member of:

…a crew that had engaged in a series of crimes, including crack cocaine dealing, armed robbery, attempted murder, and murder in the Congress Park neighborhood of Southeast, Washington, D.C. for over a decade.

You notice the press release says that the defendant is facing 40 years in prison – and in fact that’s the exact sentence, 480 months, that the government is asking the judge to impose. But you acquitted him of the conduct that would justify the punishment.

What to do? There’s clearly been a mistake. So you write a “Dear Judge” letter:

Can this be true? We as a jury found these individuals guilty of somewhere around 20 instances of selling drugs, but as I remember it, most of these were very small amounts.

And this was over a period of nearly 10 years. Now I’m not a lawyer, but after 30 years of living in the District, I believe people selling small amounts of crack on the street usually end up with probation or only a year or two in prison if they have a previous offense.

Maybe the judge thinks you weren’t paying attention? Better let him know you did:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day.

We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time.

Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly.

No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.

Jim McElhatton’s piece “Juror No. 6 stirs debate on sentencing” in Sunday’s Washington Post tells the full story. It’s late. I’ll have more later…

[Hat Tip: Letter of Apology, a white collar blog]