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tv   Studio B With Shepard Smith  FOX News  May 31, 2012 12:00pm-1:00pm PDT

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look who's getting smart about her weight. [ male announcer ] glucerna hunger smart. a smart way to help manage hunger and diabetes. >>megyn: a jury has reached a verdict, a partial verdict in the gentleman -- john edwards corruption case. they are a hung jury on five of the six counts announcing to the judge they do have a unanimous verdict on one count. jonathan serrie will fill us in on that count. it is breaking now that the defense wants a mistrial in this case. the prosecution wants the jury to forge ahead. set the scene. >>jonathan: exactly. that is what i am hearing from the courtroom. the jury has reached a verdict on count three which is the john edwards allegedly accepted
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illegal and excessive campaign funds from rachel "bunny" mellon during the year of 2008 but they have not announced whether they found him guilty or not guilty while the lawyers, both the defense and prosecution, are arguing where they want the jury to go from here. the prosecution wants the judge to send the jury back to the jury room presumably reading them the allen charge reminding them of all the time and expense that has gone into this trial and urging them to try to come up with a verdict before they come out again but the defense is wanting the judge to declare a mistrial so the judge as we speak taking all of this under consideration. everyone trying to speculate which way she is going to rule. >>megyn: jonathan serrie we will be back when you have more news. and now our legal panel, fox news legal analyst, arthur
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aidala, and randy zelin. shepard is off today. arthur, is it up to the judge, does the judge have a choice, now, whether she should declare a mistrial as the defense is asking or does she have to take the verdict on count he? >>arthur: look, this happened to me two months ago so i have real expense here. usually the defendant gets a lot of persuasive powers over the judge. if the defendant says, look, your honor i don't care what you do with the other five counts whether you hang or don't hang them, obviously they say "hang them," but i want the verdict to be read, usually a judge will allow the verdict to be read. however, it is 100 percent in the judge's discretion. the rule of thumb is, a verdict is supposed to be read as soon as it is practical and i am sure judge napolitano will educate us on that. there is no surprise, there are
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in surprises here, megyn, the defense is asking for a full mistrial. that is what they are supposed to do. that is the script. there is a surprise for me personally the way this is handled. it is not the most professional situation. >>megyn: why if -- why? >>arthur: usually a jury comes out with a note and says we have reached an agreement and we have a hung jury, and the judge will ask everyone's position and then, in the calm of the secrecy of the proceedings, a judge will make a decision what she is going to read the allen charge. whether she will read the full allen charge, which is 15 minute charge. a partial one, half that time. or, she is going to take one verdict and hang them on the rest. >>megyn: the allen charge is, for the viewers, jurors get back
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in there. >>arthur: twisting their arms especially the long version. in this case, millions of dollars, millions of dollars have been spent by the united states of america to put john edwards if -- in jail and it would be a tremendous defeat if he is acquit asked there is a hung jury. a waste of time, money, energy and resources of our government. >>megyn: randy, do the lawyers have a strategy, a hand for be played here? does it matter at this point what they push the judge for? or the jury has a verdict and they don't have one on others, you know, are we going to be stuck with a partial verdict? >>randy: i don't think it is fair to call it a strategy as much as it is reading tea leaves, trying to have a crystal ball, no different than trying to read a juror's facial,
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expression. you start with the judge has the discretion what to do. whether to dechair a mistrial now, discretion on what kind of allen charge. come on, guys, get back in there do the best you can, listen to each other. or, really twist their arms and say you have an obligation, you have a duty, you swore, and, really, put the pressure on them. from the defense, one argument could be may, i want to get them out as quickly as i can because if it is a guilty on count they, and they are getting pressure, well, maybe people start caving in to the pressure who were holding out for not guilty and they have one guilty so the hell with it. bang them out on everything else. what is the difference? conversely an argument could be made, send them back in because we don't know the split. it would be 11-1. it could be 11-1 or 10-2. we don't know that is why so much of this is speculation and only in hindsight do we know who is right.
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>>megyn: torture for the lawyers and the defendant. >>randy: and a man is presumed we innocent and his life is in the balance. >>megyn: well stand by trying to get some more information from outside the courthouse from jonathan sear and i will bring in judge napolitano, tell us what are the judge's oppositions right now? >>judge napolitano: she has a couple available. one is to publish the verdict that had come in and that makes it formal and final whether guilty or not guilty. the other is to send them back to the courtroom and say to them i'm not accepting this verdict from you until you have deliberated everything. this is no such thing as a hung jury until i decide the jury is hung. and i won't come to that conclusion until i have interrogated each of you and decided there is no way any of you is going to move toward unanimity. so what we have is a verdict on
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one count and inability to agree on five counts. only the judge can decide that it is a hung jury and then whether or not there should be a mistrial. >>megyn: is there anyway she declare as mistrial and throws out the entire case and rejects whatever verdict has been reached on count they? >>judge napolitano: only if it is guilty verdict and if it is utterly inconsistent with the inability to agree on the other five counts. if it is not guilty she cannot they it out she has to publish it and he will be acquitted for all time on just what the count is but i will tell you this, she does not know what the verdict. her heart is pounding just as the rest of ours are. >>megyn: what is the likely hood, you say it is potentially possible for her to throw out the verdict the jury has reached on count three if it is completely inconsistent to have reached guilty on that but hung on the other counts but it seems like that is highly unlikely.
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knowing what the counts are, you can see, it will be a tough argument to say, you could reach guilty on count three but inconsistent with being hung on the other counts. >>judge napolitano: here is why i believe with respect to her, she made a mistake by revealing what she did reveal. as you know and as arthur and randy know from firsthand experience the verifies are often compromises. the jurors will at times exchange votes, trade their vote, i give you a guilty on this for not guilty on that. it happened. it is rock -- wrong for her to reveal there is a decision on one and not on the other five because the decisionmaking progress on the other five could change the one count on which she has told us already that there is a verdict. without telling us what it is. >>megyn: it defeats the whole purpose of the allen charge, get back in there and your work is not done, we don't accept
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partial verdicts. back to jonathan serrie outside of the courthouse. jonathan? >>jonathan: we are getting word that the judge is going to send the jury back in for more deliberations. the prosecution, this is what the prosecution wanted, the judge to send the jury back to the jury room continue to deliberate and see if they could roach a verdict on the other five counts. the defense was against this. john edwards' lead attorney wanted the judge to declare a mistrial. i will bring if a law professor, and you have been sitting if on much of the trial. does this surprise you? >>guest: it does not surprise me. the goal of the judge is to try to get the jury to roach a verdict so it does not surprise me she would want them to try against. >>jonathan: in your experience looking at trials like this, when this happens, when a jury reaches a hung verdict and the judge sends them to the jury
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room, how successful is the second attempt? >>guest: well, i don't have any specific numbers but the instruction that the judge will give the jury is pretty forceful and encourages them to try to resolve their differences and in many cases it does result in an actual verdict. >>jonathan: based on the dynamics you have witnessed from the courtroom and the jury do you have any predictions? >>guest: if you look at the count they said they reached a verdict on is the one that the prosecution had the strongest evidence on which would suggest that it is most likely guilty verdict. >>jonathan: thank you very much for joining us. megyn that count, of course, is the allegation that john edwards accepted illegal campaign funds from rachel "bunny" mellon in 2008, in keeping with a lot of the evidence they requested, some of the prosecution evidence they requested including checks that bunny mellon had funneled through her interior decorator friend to john edwards' campaign
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aide, andrew young, and notes she and her associates hand sent john edwards and andrew young. >>megyn: there were two counts related to rachel "bunny" mellon and her donation to john edwards how does count they, the one which they have reaped a verdict, differ from the other count related to rachel "bunny" mellon? >>guest: the only difference is the year that was involved. rachel "bunny" mellon was funneling the funds in question during the years of 2007 and 2008. the count the jury has reached a verdict on, count they, concerns the funds in 2008. >>megyn: in terms of the dollar amount, because there was, you know, tell us the dollar amounts at stake. >>jonathan: the dollar amount, the allegation is over the two-year period she gave in excess of $700,000 and you
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combine that with the other wealthy donor that is part of this case, the prosecution is alleging they gave nearly $1 million but according to some of the testimony the figure may have been in excess of $1 million and that will be important if and when it comes to sentencing because john edwards would face a much more severe sentence if the judge determines that more than $1 million was involved. >>megyn: very good to know. jonathan serrie, thank you. what are we on now? verdict watch? jury watch? they have a verdict. on one count. the prosecution would argue it is their main case. they do not have one on the other five counts facing john edwards today. on this one count he could face five years in prison and that is likely what he was facing although it was 30 years but the likelihood he was facing up to five and he is still facing up to five depending on how the
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jury has come out. well have much more legal analysis after the break. hey don't worry, e-trade's got a totally new investing dashboard. everything's on one page. i'm watching you. oh yeah? well i'm watching you, watching him. [ male announcer ] try the new 360 investing dashboard at e-trade. a body at rest tends to stay at rest... while a body in motion tends to stay in motion.
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>>megyn: the jury in the john edwards case if you were just joining us reached a verdict on one count and has declared itself to be a hung jury hopelessly deadlocked on the other five and told the jury over the defense counsel's objection to go back to the jury deliberation room and to attempt to come up with a verdict on the other five counts. the defense wanted a mistrial declare asked that has not happened. rejoining me now former prosecutor and now defense attorney, arthur aidala, and against attorney randy zelin. the stakes for john edwards? >>arthur: life-or-death. really. because my understanding of what happened was the jury sent out a note that said we reached a
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verdict. so, i was giving the judge a hard time before, but, she may have been given this information by the jury itself. that all they said was we reached a verdict they come in and the first question a judge or clerk, depending on how the judge runs the courtroom, has the jury reached a unanimous verdict and then for the first time the judge hears, oh, no, we have a verdict on one thing but we don't know what we are doing on everything else, which, i will tell you, again, this just happened to me a couple of months ago, and the defendant would i was representing who was facing similar amounts of time in jail, prison, was the only time he lost his composure in two years and he said i don't care, take the verdict. i need to get this out of my life. take the verdict. take the verdict. of course, he her not guilty and was very happy about that. >>megyn: because he had you. >>arthur: the other way around it would be interesting. >>megyn: is there anyway, realistically for this defense
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attorney, to get out of the verdict at this stage? forget appeal. is there a way to get out of him having the verdict read and having it take effect on count three? >>randy: that is an interesting question and i think the answer is no, but, more important we discussed this in the past week or two. there was a very interesting case that came in where as i recall this was no verdict read, the top count was a not guilty but the jury kept going and there was an issue whether or not jeopardy attached and the court of appeals found that because the verdict had not been read, and had not been announced publicly and put in the books, that jeopardy had not attached although the jury would have voted not guilty and the whole thing had to be, he had to be tried again on the top count but the issue here is when we try to read the tea leaves, what do we look at? count they is 2008 contribution from bunny mellon so --.
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>>megyn: the heart of the prosecution's case? >>randy: the good news and bad news is as follows: the good news he did not see any of the money. $700,000 of the $725,000 went to andrew young's house. that is good. and bad news is andrew young is coconspirator so if they are hung on that, that is conspiracy which does not make sense if they bang out guilty on count three and hung on count one because if they found him guilty on count three they believe andrew young so we they should bang him out on conspiracy but what do i know. >>megyn: arthur, the heart of count three, that they have the verify, that rachel "bunny" mellon made illegal contributions to john edwardss campaign. his defense is "i got the donations as gifts, not campaign contributions and the intent was to help me cover up an affair from my wife, not to help me
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cover up an affair from the world." there was testimony at trial that rachel "bunny" mellon when she learned that some her $725,000 she secretly provided to him had been used to cover up this affair, said "probably you should pay if your girlfriend yourself." how damning is that in proving that this woman was trying to him hip advance a campaign and not a coverup of an affair from his wife? >>arthur: that is the strongest evidence they have. this was one or two little pieces of evidence randy and i and shep have been going over and that was one of them. it defies common sense that all of this money is going there to hide an affair from his wife in the midst of a presidential campaign, in the midst of a presidential campaign and he is
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trying to be a vice president, and then attorney general, and then on the united states supreme court he had all these ideas and i don't know who those 12 jurors are if they are the 12 jurors i try to pick, it does not make sense. >>megyn: one minute to the break f i am bunny mellon and i want to help john edwards because i love him, and i want to hide the affair and help with everything, why say, you should pay for your girlfriend yourself. >>randy: you are right, but this is why the judge charged john edwards out of this case. because the statute reads it has to be all of the money. >>megyn: it is ambiguous. >>randy: she said it does not have to be "only," but "a," source. >>megyn: she said the main reason the reason you are helping him out, the hane goal has to be to help with the political aspirations. >>randy: the statute says "the
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course," the one thing not the main thing f she charged "the," he is acquitted. >>megyn: a former john edwards' campaign staffer. [ male announcer ] research suggests the health of our cells plays a key role
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>>megyn: there is movement now in and about the courtroom in greensboro, north carolina and the jury is back at work. jonathan sorry has -- jonathan serrie has an update. >>jonathan: the jury announced they had reached a verdict on the one count, count three, that john edwards allegedly accepted funds from rachel "bunny" mellon in 2008. however they did not announce whether it was a guilty verdict or a not guilty verdict.
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the jury also afundsed -- announced they were hung on the other five counts so the judge sent them back to the jury room while she discussed what would happen next with the various lawyers in the case. the prosecution wanted the jurors to go back and deliberation. the defense wanted to declare a pass trial. the judge left the room for about 10 to 15 minutes and came back in and informed the lawyers she would instruct the jurors to go back if the jury room and continue their deliberations. so the two sides hammered out the wording of the so-called allen charge, where the judge reminds the jurors of all of the time and money that went into the trial and urges them to go back in and continue to deliberate and try to return a verify. so the jury has been sent back into the jury room and presumably at this second is
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continuing to deliberate the remaining five charges in this case. >>megyn: and now judge napolitano is standing by and i want to ask you, how long, now, does the judge let the jury go along? how long does the jury try to go on? they would have tomorrow off because someone's child was graduating from while or college. >>judge napolitano: there is no rule of thumb. the jury has been deliberating for nine days and they will have a three day weekend and inspectbly the judge sent the alternates home so if something happens to one of them the judge has a serious issue on her hands because she does not have a replacement for one of them but it will go beyond today if they do not have a verdict at 5:00 eastern, which is just about 90 minutes from now she will bring them back on pond to resume the deliberations. she is not just sending them in for an hour and a half.
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>>megyn: what is your experience with the allen charges, their success? >>judge napolitano: we do not know what the allen charge was that was read. one says you are not americans. you are not real people if you cannot come to a decision. and different versions of it. my guess is these jurors know each other's thinking they have been locked in a windowless room together for better part of nine days and they know whether or not they are going to agree. and, the judge has to give that allen charge, she cannot just dissipate all the effort that is put in the case whatever she may think of the government's case but i do suggest that it will go beyond the next 90 minutes. she will keep them there until midnight tonight or she will bring them back on monday and she will do thisout knowing how close they were on the other five counts. >>megyn: same question of you i asked of randy is there any way for john edwardss defend
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attorney to get out of the verdict, whatever it is, he does not know, he has to worry it is guilty and hope it is not, is there a way to get out of being stuck with that verdict. >>judge napolitano: we know from the supreme court decision of ten days ago wren by the chief justice, that if the verdict is not recorded in a formal man it is not a verdict. so, do not be surprised if they come back and count three has a verdict different than whatever it was just a few minutes ago. and the answer to your question would have been ambiguous until ten days ago when the supreme court said as a matter of law until the verdict is recorded formally, either verbally and reduced to writing by the clerk or signed in a formal verdict form by the judge it is no verdict. what is going through the lawyer's mind and heart he does not know what the verdict is. he does not know whether he wants to take it and he is hoping if it is guilty it will be compromised away when they
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continue and resume deliberations and that if it is not guilty it will stay. but this is a hope based on ignorance and speculation because no one knows what it is. >>megyn: you have to assume he does not like the odds because he did not want the jury to keep deliberating he wanted a mistrial and the judge everruled him and the jury, now, is back behind closed doors trying to reach a unanimous verdict. which, over the lawyer's objection but who knows. i have been on a jury, you it is in there and knock heads and some are more persuasive and some can the be moved, they are nine days into it, clearly some people cannot be moved. judge napolitano, before break, it has to be unanimous on the other counts you cannot have a split. >>judge napolitano: correct. correct. >>megyn: much more. we have a former john edwards' campaign staffer and we will talk to him of the 2008, the year in which bunny mellon made the donation that the jury has
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reached a verdict on. was john edwards political that year? had his political fortunes been decided? what was going on between the candidate and his then wife? [ male announcer ] what's in your energy drink? ♪ wer surge, let it blow your mind. [ male announcer ] for fruits, veggies and natural green tea energy... new v8 v-fusion plus energy. could've had a v8.
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count they. in which the prosecution alleges that john edwards took illegal campaign corrections from a wealthy donor named bunny mellon in 2008. and yet they have not been able to reach a verdict on the other five counts. joining me now is a fox news reporter who has been inside the courtroom for us throughout this entire trial. very excited to talk to you, mary, about what you witnessed this afternoon. >>guest: thank you. what happened was we her a knock on the door from the jury so they have a note or they have reached a verdict or they have come to some sort of conclusion. and the prosecution entered the room, the defense entered the room and 10 or 15 minutes later john edwards entered the room with his parents and his daughter before he took his seat with the defense attorney. his oldest daughter put his arms around him and whispered she loved him and they sat down and waited for the note from the jury which said they reached a decision on count three but
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could not decide on the other five counts at the trial. and it was up to the judge to decide and slow would instruct them with the allen charge to go back and deliberation more and she heard from both the prosecution and the defense on what she should do but she decided to give them the allen charge and instructed them to continue their deliberations on the remaining five counts. >>megyn: describe john edwardss demeanor as he waited for the jury verdict. >>guest: he appeared very stressed out, drinking a lot of water, swallowing very hard, at times his head was if his hand but when the jury said they were hung, the demeanor changed and he was relaxed, smiling, and his lawyer was smiling. the prosecution was not happy with this. the lead prosecutor, had his head if his hands and rubbing his temples and not happy to hear they were hung. >>megyn: commending from the
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lawyers after the judge ordered the jury back into the deliberation room in terms of reaction to that decision? >>reporter: well, there were no comments after she sent them back but when she asked what she felt about reinstructing them the prosecution, the lead prosecutor said it appear they were not finished and he requested they go back and the lead defense attorney for john edwards countered that saying they had spent many hours, and it seems they do not need to be told to be anymore con con conscious. >>megyn: there is a trial whether these are illegal campaign contributions as the prosecution alleged or were these gifts from bunny mellon and they would have made these
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contributions even if he were not running for president and a lot of our viewers want to know, did john edwards declare the zoe nations on his tax return in did that information come into evidence one way or the other? >>reporter: that evidence did not come into evidence. i can tell you, the defense as a whole is maintaining that these were 100 percent gifts and they were not at all campaign contributions. we have had and evidence brought in about tax returns with bunny mellon and andrew young, andrew young being the recipient of the funds but nothing on john edwards' personal tax runs because the money never went to john edwards but to his campaign aide, andrew young, instead. >>megyn: thank you, mary, we will be back in a bit. and now, we now have them back if there, mark, with the allen charge, i will give it to you from my legal perspective if i am the defense, why like this,
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because they reaped a verdict on a count that was the prosecution's strongest count, you her the legal analysts say. so, there is one juror at least one, who is on my side, but not, maybe not on that count and now she is or he is being told to talk to the other would could be against me. >> exactly, i don't like it at all and i have been struggle to how they could be not guilty on count three. i don't see it. and i am speculating. count three says he received contributions from bunny mellon in 2008 over the amount of federal limits. count two that they are hung on, is identical if language but for the year. so that means that on count two you have people for nine days were entrenched and have not been changing their mines at all in believing that john edwards is guilty of that. the 20 had nothing to do with the year. the defense was, i believe, had to have been rejected because
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some are still say he is guilty of the other counts was, no, it was a gift. it was not a contribution. i have a hard time thinking how count three could be anything other than guilty. >>megyn: clearly, brian, the defense attorney, wanted to get out of it all because he was pushing for a mistrial. and he did not get it. is there any chance he can still get a mistrial? is there any way of getting out of having the verdict read and stand on count let if the jury comes back and says, judge, we are still at the same place, we have a verdict on he and not on the other counts? >>guest: when i first heard this information i thought, the answer to your question was "no." but, now, after hearing what is unfolding i think there is potential problem now with the verdict. because there is a potential inconsistency in this regard: how if you assume that the third count is guilty which i think it is, i agree with mark on that, you assume that how does a jury
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find john edwards guilty on count three but they cannot decide on count two? >>megyn: the year. the yogi. maybe they thought one was a gift and the other wasn't. >>guest: what makes one year different than the other? illegal campaign contribution. if the jury decided it is illegal campaign contribution in 2008 how is the jury deciding it is not illegal campaign contribution in 2007? the jury believes, if the jury believes that john edwards intended to deseen the public on the coverup of affair in 2008, how does a jury find that he didn't intend to do that in 2007? there is potential for inconsistency. >>megyn: let me play advocate for gentleman 2008 they have a yesterday and 2007 they are deadlocked. the corrections. could they have come to a not guilty verdict with respect to
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2008 because they said 2007 we don't know. he was much more political that year. he was in the democratic nomination fight in 2007 so, half on the jury say those were political donations and the other half says no. in 2008 he is more out of it by 2008 and maybe on that count all of the jurors say that was a gift. that wasn't a campaign contribution because although he was vying for attorney general and so on he was not so much in it so we think he is not guilty. >>randy: excellent. you are right. that is one possibility. i don't think it is likely but it is a possibility, however. keep in mind your thought process has one major premise, that the jurors think like you do. it was early on i ruled that out as always a guarantee when a federal judge after a long deliberation came back with a note we could not wait to see what it was and the note was, what does "unanimous" mean.
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and does was spelled "dose." >>megyn: disturbing. you never know what you are dealing with in terms of the jury f your experience, with allen charges how likely that a jury that was hopelessly deadlocked will come back with a verdict. >>guest: i don't think it will make a difference. the judge did what she had to do because so much time is invested in the case and so much money but imagine the jurors looking at each other and i don't think the case is about the evidence but will power. you have jurors in this with different personalities and unless there is a juror in there who is going to make a world of difference and has the strength to try to strong-arm someone to containing their mind i don't think the reading of the allen charge is going to change the result which is going to be a hung jury on the remaining counts. >>megyn: we will talk about the outstanding issue in terms
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or annuity over 10 or even 20 years? call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today. for a hot dog cart. my mother said, "well, maybe we ought to buy this hot dog cart and set it up someplace." so my parents went to bank of america. they met with the branch manager and they said, "look, we've got this little hot dog cart, and it's on a really good corner. let's see if we can buy the property." and the branch manager said, "all right, i will take a chance with the two of you."
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and we've been loyal to bank of america for the last 71 years. >>megyn: and now the situation in greensboro, north carolina, a jury has reached a verdict on one of the six counts against john edwards saying it is hopelessly deadlocked on the other five counts and the judge ordered the jury to go back and attempt to reach a unanimous verdict on all counts. that is what they are doing. rejoining me are arthur and randy. arthur, let me ask you this: as it stands now, how, if at all, has the ultimate verdict if this case been compromised if they come back and they have annan verdict has it increased their chance of challenging the verdict. >>arthur: the short answer is, yes, it could.
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it depends, what happens after a guilty verdict with a defendant with money like this defendant has, the private investigators are hired to speak to the jurors and ask what happened in the deliberation room. and what could happen here, say on the other five counts it was 10-2 for guilty and the two jurors as we speak have the wrath of ten peoples one has a kid graduating, another has a grandmother celebrating the birthday and they are done. they want to go. ten people have a verdict. and it is guilty. and we don't care what you have to say and there is a lot of pressure. so if that verdict comes down, today, and a week from now the jurors are interviewed by the defense team similar to the case you covered down in florida the polo tycoon and there were compromised in the jury room. this adds another possibility
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that a verify wasn't reaped based on the facts and it wasn't unanimous that two jurors said okay, you won because they were beaten down by the other jurors not because they believe the prosecutor proved the case. >>megyn: can you get out a verdict based that the other jurors pressured them. >>randy: you assume they even willing to speak and having said that if they are willing to speak just because someone changes their mind, sort of keel row >>guest: and their voluntarily ability to decide for themself was they want to do, has been completely wrestled away from them, just because they argued and changed their mind and maybe felt pressure that is not enough but in my opinion the jurors looking at a throw day weekend, graduations, getting ready to the summer, they will come back either with a verdict today. or they will come back saying we are hopefullyless deadlocked because they are not going to
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want to come back and do this on monday. >>megyn: it could be a gift to the defense if they were deadlocked on all accounts. arthur, if they found him guilty on count he if that is the verdict and they are hung on the other counts does the change anything for john edwards he was facing five years each count; we said 30 years total but he was only facing, really, five years if they served concurrently. >>arthur: the only person who can answer that question is the judge. a judge looking at someone who has been, who 12 jurors found guilty across the board you would think common sense would dictate and i refer to judge napolitano you would think a judge will say, if any found you guilty i have to bang you out opposed to they found you guilty of one and the other one the government put in every resource available to mankind and any were not able to convict you so i will reduce the amount of jail time or probation or whatever the judge --.
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>>megyn: it could relate to the sentence he gets.
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>>megyn: an hour away from the close, the normal close of business in the federal courts and the jury in the john edwards case is continuing deliberations under orders from the judge. our senior judicial analyst is judge napolitano. judge, the question for you, now, whether there verdict, if they ultimately reach one on all counts is in jeopardy because what we have seen today or is the whole process in jeopardy given the judge has sent the
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alternate jurors home and the others have said they have evens to attend, and other things they need to do. >>judge napolitano: everything the judge has done so far we have been talking about and you encompassed in the question is in her discretion. she decided to send the alternate home not for a nefarious or prejudicial reason. i don't think she should have but she did. >>megyn: she was from mature. >>judge napolitano: very premature and if hindsight she shouldn't have. if one juror leaves or becomes incapacitated, they will have to bring back one of the alternates and the 11 who deliberated and the one who will join them must begin anew from the beginning as if no deliberation had occurred and start automatic over again. that is a matter that she really hopes doesn't happen because that is ripe for a mistrial or
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reversal on conviction. >>megyn: we believe that john edwards is still inside the courthouse. can i get your take, judge, with a minute left if the show, your take on what the trial was about and where we stand, really, today. >>judge napolitano: the trial was about whether john edwards is a good person or a bad person. he is a bad person. he is a bum. he is morale reprehensible but why think he should have been indicted for the crimes. the law was not written to cover this scenario, and he should not be a defendant at this time. if he is convicted, it will be because the government succeeded in painting him as utterly unworthy of respect and worthy of some sort of official societal condemnation but that in my view would be wrong. >>megyn: the defense attorneys argue if you put people in jail if having affairs and lying you will have a lot of clogged up court systems and the prosecution maintained it is about more than that, a violation of the law and the
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public trust. i thank all of my legal panelistsists for their help and thank you for staying with us. and neil cavuto will have covering coverage after the break. [ female announcer ] research suggests the health of our cells plays a key role throughout our entire lives. ♪ one a day women's 50+ is a complete multi-vitamin designed for women's health concerns as we age. ♪
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