On December 2, a Washington, D.C. jury acquitted former Secretary of Agriculture Mike Espy of all the charges of accepting illegal gifts brought against him by Independent Counsel Donald Smaltz. Espy had accepted many gifts from companies subject to Department of Agriculture regulations. The total value was estimated at $35,000. He didn?t deny having accepted the gifts. The givers had been prosecuted, convicted and had paid fines and penalties totaling $11 million, enough to cover two-thirds of the cost of his investigation. Donald Smaltz had one of the best records of all the independent counsels.
He had built his case against Espy by first convicting the gift-givers. Attorney General Janet Reno had appointed Smaltz to investigate the charges because she agreed that there was evidence from credible sources that Espy may have violated the law in accepting the gifts. President Clinton concurred when he asked for Espy?s resignation. Smaltz did not charge Espy with accepting bribes. He charged him with 30 counts of violating laws and regulations that prohibit government officials from accepting gratuities. He presented 70 witnesses during the seven-week trial.
Since the givers had acknowledged the giving and Espy did not deny receiving them, it appeared to be an open and shut case. Why, then, did the jury acquit Espy on all counts after deliberating nine hours. The defense had presented no witnesses. The analysis in The Washington Post suggested that Smaltz should never have brought the case because he was short of evidence that Espy had done anything in return for the gifts. He was portrayed as a zealot who had pursued Espy because he was black.
The stories on the first day never mentioned the clue that provides the answer to this mystery. But the next day, the Washington Times revealed half-way through a story that eleven of the twelve jurors were black. One was a white woman. The story quoted the jurors as denying that race played any part in their verdict. The white woman said race never came up in their deliberations. Two of the jurors said the only counts on which there was any disagreement were three under the Meat Inspection Act, which clearly prohibits all gifts with no requirement of proof of intent to violate the law. A black juror said they decided to acquit on those counts because the Agriculture Department?s ethics guidelines were ambiguous.
It appears that the media avoided mentioning the racial composition of the jury in their first reports because the editors knew that the reaction of many people would be that the jurors were biased in Espy?s favor because of race. An experienced litigator who observed the trial says that it was obvious from the composition of the jury and their demeanor that Smaltz had no chance of winning a conviction.
The difficulty of getting black juries to convict blacks in Washington is well known. Paul Butler, a black criminal-law professor at George Washington University says that in non-violent criminal cases, black jurors should disregard the evidence and the law and acquit black defendants as a protest against what he perceives as a racist system. He calls it “jury nullification.”