NEW YORK – Deliberations in the fraud trial of five former Bernard Madoff employees are set to resume Friday after the defense and prosecution agreed to go forward without a juror whose illness stalled the case for three days.
U.S. District Court Judge Laura Taylor Swain approved the decision after the defense team resolved internal disagreement over whether to proceed with 11 jurors — one short of the usually required number — or instead recall an alternate who was released before deliberations began Monday.
The jury had spent roughly eight hours deliberating whether evidence proved the defendants aided Madoff's massive Ponzi scheme when a female juror reported a stomach ailment after lunchtime Tuesday. That forced a halt in the verdict process. The juror has not returned since, and on Thursday reported suffering what the judge described as an additional household accident.
Proceeding with 11 jurors is relatively rare. However, the federal rules of criminal procedure state that a jury may have fewer than 12 members if both sides stipulate approval in writing. Once deliberations have begun, the rules say a federal trial judge may permit a jury of 11 to return a verdict even without prosecution and defense approval provided the court finds "good cause" to discharge a juror.
After repeatedly checking on the absent juror's medical status, Taylor Swain said "the chances are not at all high" the woman would be able to return until Monday at the earliest. Based on that, the judge ruled the legal requirement for proceeding without her had been satisfied.
The decision will enable the remaining jurors to resume deliberations at the point they stopped — amid reviewing transcripts of testimony by several witnesses, including one of the five former co-workers charged with knowingly aiding the scam.
If attorneys had opted to recall an alternate, jurors would have been legally required to disregard their previous deliberations and re-start the process anew.
The illness and legal dilemma it spawned added an unexpected twist and delay to the five-month trial, already one of the longest white-collar crime proceedings in Manhattan federal court history.
Jurors heard testimony from more than 40 witnesses and saw dozens of exhibits in the case focused on charges the defendants knowingly conspired in and and profited from the fraud that stole an estimated $20 billion from thousands of investors worldwide.
The trial is the first Madoff-related criminal proceeding to be weighed by a jury. The disgraced financier pleaded guilty without standing trial after the scam imploded in December 2008. He's now serving a 150-year prison term.
The former co-workers face decades behind bars if they're convicted. They include former Madoff operations manager Daniel Bonventre; Annette Bongiorno, who managed investment accounts for her boss' most important customers; JoAnn Crupi, who had day-to-day oversight of the firm's largest bank account; and ex-Madoff computer programmers George Perez and Jerome O'Hara.
At an earlier Thursday hearing before the final ruling, federal prosecutors said they would accept either jury option so long as deliberations resumed quickly.
"This is a matter of fundamental fairness to the rest of the jury," said Assistant U.S. Attorney Randall Jackson, referring to other panel members who had been left in uncertainty for days.
But Crupi attorney Eric Breslin said during the hearing there were "significant fault lines" among the defense team members, with no unanimity for either option. Several defense lawyers declined to discuss the team's concerns about recalling the first-in-line of three remaining alternate jurors.
Instead, they unsuccessfully asked Taylor Swain for additional time. "We very much would like to keep this jury intact, but the fates seem to be conspiring against us," said Perez attorney Larry Krantz.