HE prosecution charged the defendant, Abraham Hirschfeld and several of his business enterprises, with 123 counts of criminal fraud…I believed that the defendants were presumed to be not guilty unless the prosecution proved otherwise beyond reasonable doubt. Therefore, the burden of proof was on the prosecution.

Imagine my surprise when the prosecution’s two principal witnesses proved to have signed cooperation agreements with the district attorney’s office to avoid prosecution for crimes they might have committed.

If that wasn’t sufficient to raise reasonable doubt as to the veracity of their testimony, their manner on the stand, underlined by countless “I don’t know,” “I’m not sure,” “I don’t recall,” and other examples of seeming lapses of memory or perhaps selective recall, cast their testimony into the gravest doubt in my mind…their body language further undermined their credibility.

As the case progressed, I began to feel that the district attorney’s raid on the defendant’s offices had been more a fishing expedition than a search for specific evidence…The jury did find one of the defendants guilty on five counts relating to the 1989 Broadway production Prince of Central Park. In that instance the evidence appeared to indicate that there had been irregularities, and I was persuaded to vote guilty with the eleven other jurors on those five counts.

During deliberations I was accused of setting a different excessively high level of reasonable doubt in relation to the remaining 118 counts.

It was clear that there was one [juror] who was determined to move the jury toward a vote of guilty on all counts. That juror acquired several supporters who focused their efforts on shifting those who wished to vote not guilty to guilty. Several did change their votes as a result of the small group of  “find them guilty” activists.

When it became clear that…they were just not going to get everyone to vote guilty on all counts, the group shifted their efforts to getting various jurors to trade votes so that even if the defendants were found not guilty on some counts, at least there would be unanimous votes on all counts.

To me there is something fundamentally wicked to trading votes that could result in a defendant’s fate being decided just for the sake of consensus and unanimity. When I was asked to vote guilty on certain counts in return for unanimous not guilty votes on others without regard to the defendant’s guilt or innocence, I refused. At that point I became the object of increasing verbal assault. My intelligence was questioned, as was my objectivity…I sent a note to the judge asking if it was legal and just to trade votes…

The judge’s response reinforced my belief that to trade votes could not be fair and just for the defendants, and I again refused to change my vote. The result was the declaration of a mistrial - a result that was a profound disappointment to me since it left the prosecution with the option of retrying the defendants.

I feel more than ever that the prosecution simply failed to make its case. In my view, their case had holes in it that you could have sailed the Queen Elizabeth II through.

While a mistrial may have left the question of guilt or innocence unanswered, it was, in my view, a price worth paying to ensure that injustice did not occur for the sake of consensus.

If it comes to a choice of consensus and justice, consensus be damned!