Defense and prosecution fight over FBI tapes in Jefferson trial
01:18 PM CDT on Wednesday, June 17, 2009
Dominic Massa / Eyewitness News
ALEXANDRIA, Va. - In court papers made public Wednesday, William Jefferson’s attorney argues that a prosecution motion to keep portions of FBI video and audio tapes in the case off limits to the defense was an “eleventh hour” attempt to keep the jury from seeing all of the material which in turn would hurt Jefferson’s case.
Judge T.S. Ellis III could issue a ruling on the prosecution’s motion this week.
On Monday, just before the start of Jefferson’s federal corruption trial in Alexandria, Virginia, court filings revealed the Justice Department was seeking to prevent Jefferson’s attorneys from playing recordings of conversations not used as part of the government’s case.
The taped conversations include a dinner meeting between Jefferson and Lori Mody, a cooperating witness for the government. The prosecution has decided not to call Mody as a witness but is expected to play portions of her conversations with Jefferson at trial.
Mody sparked the investigation into Jefferson after complaining to the FBI that she was the victim of fraud in African investments being promoted by the former congressman. It was Mody who gave Jefferson a briefcase containing $100,000 in marked bills, $90,000 of which were later found in his freezer.
Jefferson is charged with soliciting bribes, racketeering, money laundering and other crimes. Prosecutors say he received more than $500,000 and sought millions more in exchange for using his influence to broker business deals in Africa.
“The government does not want the jury to hear the tapes that tell the whole story, rather than just the government’s selective, one-sided version of the conversations that it claims are corrupt,” writes the Jefferson defense team in its response to the government’s motion.
“How this could possibly comport with the Sixth Amendment guarantee of the right to a fair trial the government does not explain,” the defense continues.
In its filing, the prosecution said allowing the defense to play sections of the tape not played by the government would constitute “inadmissible hearsay.”
The defense says the tapes are not hearsay but are “real evidence of the alleged crime as it supposedly unfolded in real time.” Jefferson’s lawyers also write that since the case covers a wide period of time, from 2001 through 2005, the jury should be entitled to hear tapes that exist from any meetings during that period.
“While a one-sided presentation may be appropriate at the grand jury stage, this is Mr. Jefferson’s trial, and he is entitled to put on his defense,” writes Trout.
Trout states that the defense team plans to use the recordings of Mody and Jefferson’s conversations “to place all of the statements… in their proper context, and to establish motive and intent.”
Prosecutors claim that giving the defense blanket use of any recordings does not allow the government or the court to weigh the admissibility of any evidence.
“Contrary to the defendant’s suggestion, the government does not wish to ‘hide’ anything from the jury,” prosecutors write in their reply. “What it [the government] primarily opposes, as it has said, is any attempt by the defendant to place his statements before the jury ‘without subjecting [himself] to cross-examination, precisely what the hearsay rule forbids.”
As expected, the defense concludes its response by saying that withholding parts of the tapes speaks to the strength of the prosecution’s 16-count indictment.
“Due process demands that if the government is permitted to pick and choose among the hours of recorded evidence…then the defendant must be able to play whatever he selects as well. The fact that the government does not want this to take place speaks volumes about its confidence in the strength of the evidence and about whether it truly wants this trial to be a search for the truth.”