Jewish Law - Legal Briefs ("Weiss v. United States of America")

Jewish Law - Examining Halacha, Jewish Issues and Secular Law

Weiss v. United States of America
Supreme Court of the United States (1990)

STATEMENT OF THE CASE

The jurors learned early that Steven Weiss was Jewish. The magistrate informed the jury pool that the case would not be tried during the Passover period. (J.S. 4)² The jurors heard that the persons associated with Weiss and his business included Frank Berkowitz, Esther Weisz and Menachem Lifschitz. (J.S. 8) They heard trial testimony about Isaac Schwarz, Steven Weiss's brother-in-law and business affiliate. (T. 39) Prominent witnesses at trial included Esther (Estee) Weisz (T. 186) and Shoshanna Lifschitz (T. 549). Thus, not only did Weiss' name suggest his religious affiliation; so too did the names of his associates and family members.

Against this background, the prosecutor alluded to Shakespeare's famous (and infamous) anti-semitic play, The Merchant of Venice, as the central theme of his summation. At the beginning of his summation, the prosecutor stated:

Now in my opening statement to you I told you that my opening was like the table of contents in a book... However, I didn't tell you the title of that particular book that was going to be presented to you. I'm sure by now you know the title to that book, and the title to that book is called the Merchant of Franklin Square and not New York, and not Ohio and not 8600 West Bryn Mawr. (T. 1504)

Afterwards, at the end of one of his lengthy speeches on the subject of corporate greed, the prosecutor referred to the defendants, stating, "These are merchants of greed, deceit and corruption." (T. 1508)

Finally, the prosecutor said: "The merchants of Franklin Square, that's where it was done." (T. 1510)

The prosecutor's references to "the Merchant of Franklin Square" are unmistakable allusions to Shakespeare's The Merchant of Venice.³ The prosecutor himself told the jurors that this was a "title to [a] book," and should serve as the title of the case. (T. 1504) The references are in an elevated literary style not present in much of the case. For example, the prosecutor had consistently referred to the defendants by their technical name, "suppliers." (T. 48, 1504) Now, relating the term to a title of a book, he called them "the merchants of Franklin Square."⁴ The prosecutor buttressed his repeated allusions to The Merchant of Venice by referring throughout the trial to Weiss' supposed greediness and wealth. He talked in his opening about money, greed and the fact that Weiss' corporate employer was a "million dollar health care provider." (T. 19, 21) He cross-examined Weiss about his wealth. (T. 1335-1336, 1419-1420) In his summation, he talked extensively about the defendants' alleged greed. Typical outbursts included the following:

What did these individuals do with this [Medicare] program? They dragged it through the mud, they abused it and they stole, they didn't care about this program... They didn't given a damn. Money was what they wanted; greed, fraud.

"Greed is good," that's the motto that they prepared. They didn't care about the Medicare beneficiaries and the system. They wanted money. (T. 1521)

Of course as we know Mr. Weiss was the one who first got the mail at Health Med... when the mail first came in Mr. Weiss immediately looked for what? What would these people look for? I submit based upon the evidence we all know what he looked for, the checks, money, that's what he wanted, he wanted to see those dollars rolling in. (T. 1528)

The prosecutor's allusions to The Merchant of Venice were not lost on the other participants in the proceeding. After the prosecutor finished, outside the presence of the jury, Weiss' attorney objected that the prosecutor's terminology was "an oblique reference to the 'Merchant of Venice,' no reason in the world to have that type of terminology used in this case." He told the judge, "that wasn't innocent, that was very, very clever." The judge denied counsel's request for a curative instruction, and defense counsel then moved for a mistrial. (T. 1536-37)

After the judge denied the motion for a mistrial, two of the attorneys for Weiss' codefendants attempted to grapple in their summation with the prosecutor's Shakespearean allusions. The attorney for Weiss' co-defendant Barry Gleicher, referring to the prosecutor by name, spoke explicitly of The Merchant of Venice:

Mr. Bevilacqua told you about Shakespeare and the Merchant of Venice. . . (T. 1539)

Immediately, Weiss' attorney objected, but his objection was overruled. (T. 1539) The lawyer for the corporate co-defendant also referred to the prosecutor's allusions:

He [the prosecutor] calls them "Merchants of Franklin Square." I have no problem with that. . . I have no problem with the word "merchants" because they went into business to make money. (T. 1559-1560)

The judge submitted the case to the jury, failing to give any curative instruction. The jury deliberated, considering evidence that a judge on the Court of Appeals later said she "would not categorize... as overwhelming," United States v. Weiss, supra, 930 F.2d at 203 (Restani, J. dissenting), and returned a verdict of guilty. At no time did the judge examine the jury as to the possibility of prejudice resulting from the prosecuting attorney's allusions to anti-semitic stereotype.

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FOOTNOTE 2:
The abbreviation "J.S." is used herein to refer to the transcript of the jury selection conducted by the magistrate on April 3, 1989; and the abbreviation "T." is used to refer to the regular trial transcript.

FOOTNOTE 3:
Franklin Square is not a street name. It is a town on Long Island, as Venice is a city in Italy.

FOOTNOTE 4:
The prosecutor did not deny that he had alluded to The Merchant of Venice when Weiss' counsel brought the matter to the judge's attention (T. 1536-1537), or when counsel for one of the co-defendants stated to the jury that the prosecutor had told them about "Shakespeare and the Merchant of Venice" (T. 1539).

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