Jury divisions spill into courtroom in Ellis trial

Note from the jury to Judge Courtney Johnson

Judge Johnson,

We the jury are having a very difficult time following the leader. We are all very passionate about our feelings and have not been able to go over several counts in the indictment.

Some jurors feel that we can’t go forward. Two jurors are having personality conflicts. The elected foreman cannot lead the jurors.

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After four days of deliberations, jurors in the corruption trial of DeKalb County CEO Burrell Ellis raised the specter of a mistrial Thursday when their internal divisions spilled into the courtroom.

Two jurors told the judge they had personality conflicts. Another complained that she was being shut out of discussions. And a note to the judge indicated jurors couldn’t work with their chosen foreperson.

More ominously, perhaps, jurors told the judge they still had not considered all of the counts against Ellis.

“We are all very passionate about our feelings,” jurors said in a note to Judge Courtney Johnson. “Some jurors feel that we can’t go forward.”

Johnson chastised the panel of 12 jurors and three alternates, telling them to “conduct themselves like adults” before sending them home early to cool off.

“It appears we’re having some pretty significant conflict back there,” Johnson said before bringing jurors into the courtroom just after noon. “I think that the stress of the situation is getting to be too much.”

Ellis is accused of strong-arming county vendors to give to his $1.5 million 2012 re-election campaign, which still had a debt after he handily won the seat in the Democratic Primary and didn't face any opposition in the general election. He's charged with 13 felonies — bribery, extortion, theft, perjury and using government employees for his political campaign during work hours.

Johnson sent the jurors and alternates home for the afternoon to give them a break from each other and time to relax. She told them to be ready to resume deliberations at 9 a.m. Friday.

Depending on who the alternates are, the jury is made up of either 12 women or 11 women and one man. Thirteen are black and two are white.

The jurors, all unsmiling, sat with their eyes locked on the judge. One looked as if she had been crying. Several nodded in agreement as the judge told them to work together and to treat each other with respect.

If the jury can’t reach a unanimous decision about whether Ellis is guilty or not guilty, the judge could declare a mistrial. Then District Attorney Robert James would have to decide whether to take the case to trial again or drop the charges.

Clayton County District Attorney Tracy Graham Lawson said a break for the afternoon was a good idea.

“It can be incredibly stressful,” Lawson said. “When people are by themselves — and not in a cramped little room — they can think things through, and are more likely to relinquish an opinion they are holding on to in the face of the arguments they were presented with by their fellow jurors.”

Defense attorney Steve Sadow found the decision to send jurors home odd.

“I’ve seen considerable tensions in cases where I’ve been the trial lawyer,” he said. “But I have not seen a situation where a judge sends them home early and says, ‘Relax and come back tomorrow.’”

Defense attorney Page Pate said the issue of conflicting personalities suggests deliberations have been colored by politics, whether the jurors recognize it or not.

When Ellis testified and came under harsh questioning by James, jurors could have picked up on the friction between the two rivals.

“I don’t think we have a debate about the law,” Pate said. “People dig in their heels if people think there is a political prosecution.”

Since Monday afternoon, the jury has tried to find consensus on the charges. But there were signs they were struggling to even consider them. The judge said Thursday jurors had actually only deliberated a total of nine hours, though they had spent 15 hours behind closed doors.

The trial has already lasted almost five weeks since jury selection began. Ellis was indicted in June 2013 and he has been suspended from office since then.

If the jury becomes deadlocked, Judge Johnson could give them what’s known as a “dynamite charge,” which is a strong instruction to work together to reach a decision.

Johnson also told the jury on Thursday they could choose a new foreperson.

“Clearly the foreman or forewoman needs to try to facilitate a forum by which all views can be expressed,” said Ken Hodges, a southwest Georgia district attorney for 12 years before going into private practice. “Everybody deserves a chance to be heard. Then need to run a respectful, deliberative process.”

Earlier this week, the jury asked for another look at a 41-minute video of Ellis’ Jan. 7, 2013, testimony before a special grand jury. His denials that he influenced who got government work formed the basis for the three perjury charges against him.

The jury also re-listened to three secret recordings of Ellis on Thursday. During those recordings, Ellis discussed whether to stop giving government work to companies that didn’t return his phone calls seeking political contributions.

“The odds that this jury may reach a verdict look very slim at this point,” said defense attorney Philip Holloway. “From the defense perspective, a hung jury is typically considered a win. However, if you’re Mr. Ellis, and your political future is hanging in the balance, is literally in limbo, that may not necessarily be considered a win.”