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Thursday, May 17, 2012

Beldar muses on John Edwards' fate while the jury is out

The press reports I've read regarding closing arguments today in John Edwards' criminal trial are unremarkable. The arguments might have been brilliant in person, but at least as filtered through the press they simply re-hashed themes and arguments and evidence that have been discussed before. So my interest turned to other, more technical matters that I actually think may be more important than the closing arguments themselves.

Unfortunately, I can't yet find a written version of the court's charge to John Edwards' jury earlier today — neither on PACER, nor elsewhere on the net. The charge will contain Judge Eagles' formal questions of, and instructions to, the jury, as delivered by her to them in writing and as read by her in open court before the jurors begin their deliberations. The charge is of crucial importance in every trial, but especially in a case like this one in which so many of the facts were essentially undisputed. The prosecution and Edwards' defense team certainly put very different characterizations on those facts. But when the jury tries to sort out which side's characterization is correct, the jurors inevitably will look to the judge's instructions and questions for their guidance.

However, the newest document that's up tonight on PACER — Edwards' lawyers' objections to the draft charge that was circulated after the charge conference yesterday — implies pretty strongly that Edwards' lawyers didn't get the instruction they wanted on what I believe to be the key legal issue in the case: whether to qualify as a "campaign contribution," something must be intended solely to promote a campaign. I don't know if Judge Eagles instead gave the jury the instruction requested by the prosecutors, which would have explicitly said that they could find Edwards guilty even if the conspirators had multiple purposes — in other words, even if Edwards, Bunny, Young, et al. intended to deceive both the American public at large and Elizabeth Edwards in particular. But I agree that that's the proper interpretation of the statute, so it wouldn't surprise me if Judge Eagles gave the jury the instruction as proposed by the prosecution, or something very close to it.

The other alternative is that she submitted neither side's requested instruction on this issue, but I think that would run a legitimate risk of juror confusion and misinterpretation. That's another way of saying: If she gives no instruction at all on this topic, that would permit the defense team to argue to the jury as if they had gotten the interpretation of the statute, and the resulting instruction, that they wanted, but that the judge has refused; and I think that would be improper.

If the prosecution did in fact get the instruction they wanted, or something pretty close, on this key point, then I think Edwards' conviction on at least some counts is likely. But of course, I'm basing that on an incomplete and subjective set of reports about the evidence, which I haven't actually seen or heard or read; and one can never be certain what any given jury will do. Until this particular jury returns its verdict, Edwards remains entitled to his constitutional presumption of innocence like anyone else; but barring a hung jury, that presumption is about to be replaced by a verdict one way or another.


UPDATE (Fri May 18 @ 5:45pm): Here, from PACER, are the Final Jury Instructions as read aloud and given in writing by Judge Eagles to John Edwards' jury yesterday. The key instruction, in my opinion, is this one (starting at page 8 of the .pdf file)(boldface mine):

... Whether the money Ms. Mellon provided to Mr. Young through Mr. Huffman was provided by Ms. Mellon for the purpose of influencing an election is a factual question you will decide from the credible evidence. You will consider any evidence about the intent, motivation, and goals of Ms. Mellon, evidence about the statements made surrounding the solicitation and acceptance of the money, how the money was actually spent, and other evidence of all the surrounding circumstances, and determine whether this money was given by Ms. Mellon for the purpose of influencing an election.

The government does not have to prove that the sole or only purpose of the money was to influence the election. People rarely act with a single purpose in mind. On the other hand, if the donor would have made the gift or payment notwithstanding the election, it does not become a contribution merely because the gift or payment might have some impact on the election. Nor does it become a contribution just because the donor knew it might have some influence on the election and found that acceptable, if the donor’s real purpose was personal or otherwise unrelated to the election. In other words, the government has to prove that Ms. Mellon had a real purpose or an intended purpose to influence an election in making the gift or payment. If her real purpose was personal or otherwise not for the purpose of influencing the election, or if you cannot say what the purpose was beyond a reasonable doubt, then that would not be sufficient to satisfy this element. If you find beyond a reasonable doubt that one of her purposes was to influence an election, then that would be sufficient.

The government does not have to prove that Ms. Mellon had any intent or knowledge as to exactly how the money would be spent, or that the money was in fact spent on the campaign, or that it would have been legal or illegal for the campaign to spend the money the way the money was in fact spent. While you may consider how the money was spent as part of your consideration of whether the money was provided for the purpose of influencing an election, it is not an element of the offense that the money be spent on purposes related to the election.

This, like similar instructions Judge Eagles has given in connection with later counts of the indictment, is close enough to what the prosecution requested that they are undoubtedly very happy with Judge Eagles' interpretation of the campaign finance statute — and I agree with the prosecutors that this is the correct interpretation of the statute. And this is exactly the opposite of what Edwards' lawyers had requested, which was an instruction that the intent had to be solely to influence an election.

In fact, I commend the entire document to you if you really want to know what the case is about.

Posted by Beldar at 10:52 PM in 2008 Election, Law (2012), SCOTUS & federal courts | Permalink


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(1) Michael Brophy made the following comment | May 24, 2012 4:24:19 PM | Permalink

Thanks for putting this up. If you have an opinion about the implication of the time it is taking the jury to make a decision, I am all ears. On an unrelated topic, I think it was on Instapundit today I was adverted that 'Ted Cruz is not a conservative.' Do you read about this so I don't have to?

(2) Jim made the following comment | May 25, 2012 6:01:00 PM | Permalink

This kind of campaign finance law and interpretation is a very slippery slope. So, this means that if I give money to a friend who, at the time, or some time later, runs for office and there is the remotest possiblity that the money I give has any influence whatsoever on the campaign, then the friend and I can be prosecuted and imprisoned. I can't see how it could possibly not affect a campaign. Money is homogenious. Hypothetically, if I give money to use for a hospital bill, that frees up the persons own money to use in the campaign in the present and forever in the future such that it inescapably influences the election. I guess the lesson here is that never, ever give personal money to a person who is or ever could run for office. Not even if government officials whose only job is to know such things a priori say it is not illegal as happened in the Edwards case.

(3) Beldar made the following comment | May 26, 2012 12:40:46 AM | Permalink

Jim, thanks for the comment, but I don't agree with your analysis at all.

These people knew what they were doing was both wrong and illegal. That's why they hid their tracks; that's why they used cut-outs and money-laundering techniques and cash. They weren't caught up in some technicality after behaving innocently. They were caught red-handed doing exactly what the statute forbids, and frankly their best chance of an acquittal was to try to convince Judge Eagles into going along with the defense interpretation of the statute -- the "sole purpose" requirement -- which the statutory language doesn't at all support.

Again, I commend to you the language I've quoted. If you read it carefully, you'll find meaning there -- and I guarantee you it's no more opaque or difficult to parse than most of the other federal criminal laws, which deal with things like "intent" as part of their daily grist.

Mr. Brophy, every jury is unique, and no one from outside this one can offer anything more than an educated guess. But my guess is that a plurality or simple majority of jurors who are in favor of convicting Edwards are going methodically through the evidence to systematically rebut the reservations being expressed by the doubters, and the doubters are slowly but surely being persuaded by their fellows. That simply takes longer than bringing a few jurors around to see a "reasonable doubt" that all the others already perceive. There's still a possibility of a hung jury (which would result in a mistrial and possibly a retrial), or of a compromise verdict in which Edwards is convicted on some, but not all, counts. But there are also quirks in the evidence, and in particular with the timing of the payments, which make the money from Dead Fred arguably different than the Bunny Money, so they may have reached a tentative unanimous verdict on some counts but still be struggling to get unanimity on the others.

(4) Gregory Koster made the following comment | May 27, 2012 12:23:48 AM | Permalink

Dear Mr. Dyer: I think your analysis on the length of time the jury is taking is likely right. I still object to the wisdom of the law that enables this case. Tell me this: who is the "victim" of Edwards's taking dough to keep his cutie? The citizenry? You could argue that the public has a right to know these sorts of things about candidates who run for office. But that just shows how corrupt and biased the press is. Characteristically, instead of giving the sort of analysis you bring us, they obsess about the color of clothes the alternate jurors are wearing. Good God.
But bad as the press is, our prosecutors are worse. I don't have faith in prosecutors to do their jobs any more. The Stevens case is really troubling. Now it comes out that the Stevens case was
tampered with to the point where this layman yells "Fraud" and "Conspiracy." The hell with "ethics" charges against these assassins, it's time for the jug and big fines after a lengthy, expensive turn-your-life-upside-down trial. That's the point. The combination of "prosecutorial discretion" and meatgrinder process is deadly. Who can doubt that the biggest factor in deciding to prosecute was that Edwards had lost and wasn't a member of The One's circles of Hell with corresponding pull? The decision not to prosecute Tim Geithner is damning on this point. Try to imagine the howling fanatics who are giving Edwards the works as they gave Ted Stevens the works opening an investigation into The One's campaign contributions in 2008, let alone 2012. The disabling of donor verification so The One could rake in dough anonymously is a far worse crime than anything Edwards did. I suppose if both cases were prosecuted, my argument would be muted. But they aren't both being prosecuted and I doubt if The One's ever will be. (Remember though, that I said the same thing about the lawyers who railroaded Stevens---the day before they were suspended. Don't trust my crystal ball...)
Sincerely yours,
Gregory Koster

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