CRIME / COMPLICATED PROSECUTIONS : Post-Mortems Show That Jurors Like It Kept Simple


The federal government's stunning defeats in the cocaine trial of District of Columbia Mayor Marion Barry and the trials of other recent high-profile defendants are providing law enforcement officials with a hard-learned lesson for handling such cases in the future:

Keep them simple, so juries can understand what is involved.

A lack of simplicity is not necessarily the major reason that the prosecution lost the Barry case, in which racial attitudes, jurors' doubts about an FBI sting operation and the credibility of some government witnesses also played a part. But it certainly was a factor, observers say.

But the complexity of such cases is becoming a growing problem as the Justice Department moves more and more into high-profile trials involving public officials and financial schemes--and loses them, embarrassingly, as the Barry case underscores.

"Juries don't like complex cases with a lot of documents," says Joseph E. DiGenova, former U.S. attorney in the District of Columbia, who has interviewed jurors for dozens of post-mortems in such cases.

As a result, prosecutors in the Justice Department's stepped-up assault against fraud in the savings and loan industry are seeking to simplify unusually complex cases, both to avoid overwhelming juries and to conserve the time of investigators and prosecutors.

Marvin Collins, U.S. attorney in Dallas, underscored this concern recently in announcing one of the bigger S&L; prosecutions--the indictment on 27 criminal counts against Edwin T. McBirney III, former chairman and major shareholder of Sunbelt Savings Assn.

"This criminal case is designed to be lean, trim, to the point," Collins said. "In any case that is this complex, you have to be mindful of the fact that jurors can only absorb so much and can only understand so much."

The setback in the Barry case--which ended with a conviction on a misdemeanor, an acquittal on another and a hung jury on 12 other charges--follows numerous similar headline-grabbing reversals that together have raised serious questions about the government's success rate.

Winning such cases is "important in terms of the public perception of the (criminal justice) process," DiGenova says.

But federal statistics show that, despite the increased complexity of such cases, the success rate for federal prosecutions generally has actually improved.

Counting only those cases that actually went to trial, the government won 88% of its cases in the first six months of fiscal 1990, up from 77% in 1989, 78% in 1985 and 81% in 1980.

Although memories may be short, prosecutors can point to a spate of significant victories in celebrated cases over the last few years.

Junk bond kingpin Michael Milken recently pleaded guilty to six felony counts. Hotel magnate Leona Helmsley was convicted of tax evasion.

And television evangelist Jim Bakker was convicted of fraud and conspiracy charges.

Post-mortems of unsuccessful prosecutions can lead to fundamental changes in law enforcement procedures--including revising the way the FBI trains its agents.

A review of the government's embarrassing loss in the 1984 cocaine-trafficking prosecution of John Z. DeLorean showed that jurors simply did not believe the FBI agents at the trial.

As a result, the agency introduced moot-court training at its national academy in Quantico, Va.

Despite the current round of post-mortems, federal officials have found that no single thread seems to link the big-case losses that the government has suffered this year.

In the Imelda Marcos case, for example, the prosecution was hampered from the outset by the fact that her husband, ex-Philippine President Ferdinand E. Marcos, had died six months before, and the jury was reluctant to convict Mrs. Marcos by herself.

"When was the last time we put a Godfather's wife in jail?" a disgruntled FBI official said.

Even in the lesser-charge convictions won last month against several Chicago commodities traders who were charged with fraud, the government suffered from bad timing.

Because of a fluke, the weakest of the government's cases went to trial first, and the jury found two traders guilty of relatively minor crimes, sharply reducing the incentive for defendants in remaining cases to begin cooperating with the prosecution.

"The government should have done a better job of restructuring," a Justice Department official concedes.

Staff writer William C. Rempel contributed to this story.

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