For juries, seeing deed on tape often is believing
But video evidence not always
sure-fire in cases like Jefferson's
Saturday, June 03, 2006
By Bruce Alpert
WASHINGTON -- The kind of videotaped evidence confronting U.S. Rep. William Jefferson, D-New Orleans, is often more persuasive to jurors than even eyewitness testimony but doesn't always produce a slam-dunk case for prosecutors, lawyers Thomas Puccio and Michael Tigar said.
They should know. Puccio was a lead prosecutor and Tigar a defense lawyer in the Abscam case more than 25 years ago, the last time members of Congress were subjected to a government sting operation. Abscam was a case in which FBI agents pretended to be Arab sheiks and offered thousands of dollars to members of Congress willing to help them with immigration problems.
In the Jefferson case, the FBI says it videotaped Jefferson taking a briefcase with $100,000 in $100 bills from a witness who had agreed to assist the investigation. According to an FBI document, all but $10,000 of the cash, which tape-recorded conversations indicate was intended to bribe a Nigerian official, was found during an FBI search of the congressman's Washington home.
Jefferson hasn't been charged with any crime and continues to maintain his innocence as the federal investigation, which began 15 months ago, continues.
"If a tape is definitive, it's very hard for the defense to say that what jurors are seeing and hearing didn't really happen," Puccio said.
Tigar agrees that a tape showing someone taking money is more powerful than testimony from even a credible eyewitness. Some legal experts said that one of the reasons that former Louisiana Gov. Edwin Edwards was convicted in 2000 on racketeering and fraud charges, after two previous corruption cases ended in acquittal and a mistrial, was the hundreds of hours of audiotapes collected by federal investigators.
But that doesn't mean a defendant can't overcome potentially embarrassing taped evidence:
-- In 1984, John DeLorean, the one-time General Motors executive who developed futuristic-looking but poorly selling cars in the early 1980s, was acquitted on drug charges despite videotaped evidence in which he referred to a suitcase full of cocaine as "better than gold." His attorneys said he was unfairly entrapped by overly aggressive federal prosecutors.
-- In 1990, hidden cameras captured Washington Mayor Marion Barry smoking crack in a hotel room. Barry portrayed himself as the victim of overzealous prosecutors, and a mostly black Washington jury convicted him of a single misdemeanor, failing to reach a verdict on more serious charges. Ultimately, he made a political comeback.
-- In 1984, Joe Delpit, a former Louisiana House speaker pro tem, was caught on tape asking for $100,000 to arrange a pardon from Gov. Edwin Edwards. He got off after claiming he was only acting to carry out his own investigation into potential wrongdoing.
The "I was carrying out my own secret investigation" defense doesn't always work, however. Rep. Richard Kelly, R-Fla., tried to convince a jury that the reason FBI cameras caught him stuffing $25,000 into his clothing was because he was conducting his own investigation into illegal influence peddling. The jury didn't buy his story, and he was sentenced to six to 18 months in prison.
Location a big factor
Jefferson faces a problem that DeLorean, Barry and Delpit didn't. The Justice Department investigation, which began in March 2005, is centered in northern Virginia, meaning that if Jefferson is charged, he'll be tried by a jury in Alexandria, Va.
Unlike juries in Washington and New Orleans, which tend to be skeptical of the motives of government prosecutors, juries in Alexandria are made up largely of government employees and former and current members of the military who, according to several Virginia defense lawyers, tend to believe prosecutors are motivated to punish and discourage criminal wrongdoing.
Tigar, the former Abscam defense attorney, concedes that defense lawyers generally prefer their clients be tried "some place other than Alexandria," but he argues that Jefferson could still prevail.
For one thing, Tigar said, Jefferson's attorneys could put prosecutors on the defensive by pointing out that the investigation marked the first time the federal government ever raided the office of a congressman. "Why be so aggressive with an African-American lawmaker, when similar steps weren't taken against any Republicans connected to convicted Republican lobbyist Jack Abramoff?" Tigar said.
But that argument likely would be more persuasive with a mostly black jury than the predominantly white jury likely to be selected in Alexandria to hear any case brought against Jefferson.
Still room for uncertainty
Tigar also said that taped evidence, while persuasive, isn't always clear-cut.
He was the attorney for Rep. Jack Murphy, D-N.Y., one of seven members prosecuted in the Abscam investigation. On tape, Murphy is shown being offered a briefcase that the FBI said was filled with $50,000 intended for him and another congressman. But Murphy tells someone else in the New York hotel room to pick up the briefcase, and although the government says he shared the cash, prosecutors couldn't convince a jury he was guilty of bribery.
Instead, Murphy was found guilty of lesser charges of conspiracy, conflict of interest and accepting an illegal gratuity. Puccio, the prosecutor, calls that an "inconsequential victory" because the New York House member ended up with the same three-year sentence given some of the Abscam seven convicted of bribery.
Richard Ben-Veniste, another Abscam defense attorney, said there are some notable differences between that case and the Jefferson probe. In Abscam, the government "totally contrived a scenario to test the honesty of various individuals." In the Jefferson case, the government got someone who had been involved as an investor in a project championed by Jefferson to secretly record her conversations with the congressman.
Jefferson, who has been accused by two associates of seeking bribes funneled to a company operated by his family for his help getting a technology project approved in the western African nations of Nigeria and Ghana, has said he never has asked for anything for himself or his family to carry out his official congressional duties.
The comments suggest that if he is charged in the criminal probe, which so far has produced guilty pleas by the two associates, Vernon Jackson and Brett Pfeffer, he'll argue that the transactions were private business deals unrelated to his congressional responsibilities.
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Bruce Alpert can be reached at firstname.lastname@example.org or (202) 383-7861.