The mistrial madness edition | Inside Johnny Doc’s Trial

Greetings, court-watchers, and welcome back to another edition of the Inside Johnny Doc’s Trial newsletter.

Way past your faithful newsletter writers’ bedtimes on Thursday, the extortion trial of former labor leader John Dougherty — his third federal case in as many years — ended with a whimper, as the jury reported it was hopelessly deadlocked and the judge declared a mistrial after 11 hours of deliberations.

A verdict could have either handed a victory to the embattled union leader with an 0-2 record in federal court, or further eroded the legacy of a man once known as a kingmaker in the world of Philadelphia politics and organized labor.

Instead, we got neither, and Dougherty left the federal courthouse Thursday heading off into an uncertain future with the possibility that the feds will decide to retry the case and a sentencing for his earlier convictions looming.

— Jeremy Roebuck and Oona Goodin-Smith (@jeremyrroebuck, @oonagoodinsmith, [email protected])

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📅 Prosecutors have not yet made a decision on whether to retry Dougherty and his nephew, Greg Fiocca — but the judge has already set aside time in June if they opt for a retrial.

🏛️ Either way, Dougherty’s days in a federal courtroom aren’t over just yet. He still faces the near certainty of a significant prison term at his sentencing for his bribery and embezzlement convictions on July 11.

🎰 While the latest trial ended ambiguously, it did provide some insight into Dougherty’s leadership style at his union, Local 98 of the International Brotherhood of Electrical Workers, and what it’s like to be on the opposite side of an argument from him. Ray Palmieri, a contractor and alleged victim in the extortion case, testified that amid his 2020 pay dispute with Fiocca he was spooked by the union chief’s threats to pull workers off the job during construction of the Live! Casino and Hotel in South Philadelphia. Palmieri opted to keep Fiocca on the job. “It was a decision I had to make,” he told jurors. “I had a project to get done.”

🥸 Remember that confidential informant from inside Dougherty’s inner circle who secretly recorded him for the FBI? Prosecutors played one of the mole’s tapes for jurors during the trial. Days after his nephew attacked a supervisor on the casino job site, the labor leader upbraided members of his union for gossiping about the scuffle — talk he said he’d learned of after hearing “a little jabber-jaw down the Shore.”

For now, we’re happy with the result. We were hopeful for a not guilty, but we’ll take the hung jury at this stage.

We don’t know yet — and might never know — what exactly caused the snag in the jury room. U.S. District Judge Jeffrey Schmehl didn’t poll jurors on the reasons for their disagreement or ask how they were split before releasing them Thursday night. Security staff escorted them from the courthouse, and they couldn’t be reached for comment on Friday.

That said, they asked a number of questions during their marathon deliberations that could offer some clues. Several times, the panel asked Schmehl to repeat what exactly prosecutors needed to prove for them to convict Dougherty and Fiocca on the 18 extortion charges they faced.

And, perhaps tellingly, they sought further clarification on a legal defense — first recognized in a 1973 U.S. Supreme Court ruling — that allows labor leaders to deploy threats of force or economic harm to achieve legitimate union goals in disputes with management.

In that Supreme Court case — United States v. Enmons — the high court reversed the extortion convictions of two Louisiana union officials (also, coincidentally, members of IBEW) who had blown up a utility substation and shot out transformers owned by an energy company with which they were involved in a protracted contract dispute.

The justices reasoned that while it’s normally illegal to use threats and force for financial gain, federal statutes also recognize the right of unions to apply pressure to employers to improve conditions for their members. For instance, a union can threaten to go on strike to squeeze concessions from a company’s management.

Therefore, the high court concluded, it would be inappropriate to classify such tactics — when they’re aimed at advancing union interests — as extortion. (Violent acts like blowing up your bosses’ property, though, could still be prosecuted under other state and federal laws.)

In Dougherty’s case, that distinction may prove to be key.

He maintained that his threats amid his nephew’s pay dispute with Palmieri, like pulling workers from the casino job site, were in hopes of achieving a union interest — ensuring union members were paid fairly for the work they did. He argued he would have done the same for any other Local 98 member involved in a dispute over wages.

Prosecutors, though, sought to show there weren’t any legitimate union objectives behind Dougherty’s pressuring of Palmieri. Instead, they said, the labor leader was only looking out for Fiocca — to the detriment of other Local 98 members who would have lost work had they been pulled off the job.

Only the jurors can say whether that disagreement is ultimately what tripped them up. (And if you’re reading this, jurors, please email us, and let us know!)

Schmehl’s decision to declare the jury hopelessly deadlocked Thursday came after 11 hours of fruitless deliberations on a single day and followed six days of testimony in the case. Here’s how that compares to other cases:

Jury deliberations in Dougherty’s previous trials ran on a reliable schedule. Discussions would start around 9:30 a.m., and come 4:30 or so each day, Schmehl was ready to send jurors home — instructing them to get some sleep and come back in the morning.

But this time was different. As 5 p.m. came and went in the Reading courtroom, Schmehl showed no signs of stopping.

Lawyers and Dougherty milled about the courtroom, casually chatting. Pizza and salads were brought in for the jury. And as reporters traded access to the room’s single power outlet keeping phone and laptop batteries alive, it eventually became clear that we were in for a long night.

At 7:30, with dusk descending on the rolling hills of Berks County, the six men and six women emerged with questions. The judge sent them back to discuss the case more. It was Dougherty’s birthday, and by that point, he had resigned to celebrating the big 6-4 waiting on a verdict, with doughnuts and soft pretzels, in a nearby conference room.

About 45 minutes later, the judge announced that the jury had twice told him earlier in the evening that it was at an impasse in its deliberations. Once again, this time in person, he encouraged members to press on and to keep their minds open.

But just before 9:45 p.m., the expectant mood in the courtroom had changed. By that time, the weary jury had been deliberating for close to 11 hours and had been in the courthouse that day for 13. As they trudged into the courtroom, they told the judge one-by-one that they all agreed further discussions wouldn’t change anything. They couldn’t reach a consensus.

Schmehl thanked jurors for their efforts over the eight-day trial in Reading — where many on the panel had been staying overnight — then declared a “mistrial by manifest necessity,” before sending them on their way.

Dougherty flashed a brief smile. Fiocca cracked jokes with his lawyer. And the men, accompanied by family, made their way into the night.

Lugging several boxes of trial evidence with him out of the courthouse just after 10 p.m., Dougherty said he had somewhere to be: “I’m going home to spend the last two hours of my birthday with my wife.”

Remember when we said court dates are subject to change? Both Dougherty and Brian Burrows’ sentencing dates, originally scheduled to take place this week, have been postponed. Here’s the current court calendar — in pencil, of course:

📅 May 17: Anthony Massa, a Local 98-favored contractor turned star government witness, faces sentencing for billing the union for home repairs worth hundreds of thousands of dollars at the houses of Dougherty, his family members, and his fellow Local 98 officials.

📅 June 24: The day the judge has set aside for jury selection in Dougherty’s extortion case — should the government decide to retry it.

📅 June 26: Former Local 98 president Brian Burrows is set for sentencing for his role in the embezzlement of more than $600,000 from union coffers.

📅 July 11: John Dougherty faces sentencing for his embezzlement and bribery convictions.

Thanks for following along with another trial, and we’ll be back in your inboxes with updates on the proceedings to come before you know it.

See you again soon. 👋

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