Every two of three days for the last couple of weeks, Judge Donald Molloy volunteered that “in the spirit of full transparency” the debate over what will comprise the instructions to the jury will be done in open court before the public.
At one point last week Molloy talked about this trial (now into its tenth week) as the only one where he had people watching from the gallery. At times, it was standing room only. He said he wanted the discussions on what the jury will be told to be completely open so there could be no thought or discussion of behind-the=door chicanery.
But this afternoon, after telling the jury that he and the lawyers will be working late into the night agreeing on the instructions, he sent them home and ordered the lawyers into his chamber for a brief chat.
About 25 minutes later, all but the judge filed out. The lawyers, clutching envelopes, quickly left the courtroom for somewhere else in the building.
A court clerk came back to the gallery and told the few reporters waiting that everything else tonight was “off the record” and we should leave.
Molloy is correct. Transparency is needed and warranted. The public should know whether he was pressured to change the instructions and if so, by which party and what was the justification that swayed him.
A case can be won or lost depending on the instructions a judge gives a jury.
A judge can rule that this or that witness’s testimony isn’t to be considered, that this count in the indictment wasn’t proven or about anything else he wants. Complete sections of an indictment can be slashed.
Molloy knows this. He also knows that some are suspicious about his treatment of the prosecution, his rulings on behalf of Grace and its lawyers, and the knowledge that he has retained the right to toss out a guilty verdict and dismiss all charges after the jury makes it decision.
Why would he publicly promise openness and then slam the door?