The William Jefferson Chronicles

Jurors will return to work Monday
Saturday, August 01, 2009
By Bruce Alpert
and Jonathan Tilove
Washington bureau

ALEXANDRIA, VA. -- The jury in the William Jefferson corruption trial completed its second day of deliberations Friday without reaching a verdict, breaking about 90 minutes early to go home for the weekend.

Judge T.S. Ellis said he agreed to let jurors retire ahead of the usual 5:30 p.m. ending time to accommodate the wishes of one or more jurors.

The jury of eight women and four men will resume deliberations Monday at 9:30 a.m.

Shortly before their lunch break, jurors sent Ellis a note saying they were satisfied with the audiotape of the judge's lengthy jury instructions from Thursday and were dropping their request for a written copy.

Jefferson, 62, a Democrat who represented the New Orleans area 2nd Congressional District for nine terms, faces 16 charges, including bribery, racketeering and six counts of "honest services" fraud, a charge Jefferson's attorney Robert Trout in his closing arguments called the government's backup in case jurors, "as you should" reject the bribery allegations.

The honest services fraud statute allows prosecutors to bring felony charges against public officials and corporate leaders who "deprive another of the intangible right of honest services."

It's a popular tool for prosecutors, particularly in government corruption cases, although critics, including Supreme Court Justice Antonin Scalia, complain it is too vague. Scalia wrote that it "invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct."

Trout likened the prosecution of Jefferson to the Maxwell Smart secret agent character in the old TV sitcom and recent movie "Get Smart," in which Smart says outrageous things until he is challenged and then responds, "Would you believe . . . ?"

With the same sense of false bravado, Trout said, the prosecution charged Jefferson with bribery, for promoting businesses in Western Africa in return for payments to family owned businesses. If that fails to sway jurors, Trout said, prosecutors have a second option, the six honest services fraud allegations. Trout said the prosecution fell well short of proving any of the charges.

Prosecutor Rebeca Bellows told jurors that prosecutors provided more than enough evidence for them to find Jefferson guilty on all counts.

 Legal experts say the honest services fraud charges, which carry a maximum penalty of 20 years for each count, pose a real danger for Jefferson.

"Honest services is so broad that it is generally easier to prove than the bribery counts," University of Richmond constitutional law professor Carl Tobias said.

Harry Rosenberg, a former federal prosecutor in New Orleans now in private practice, said the bribery charges related to Jefferson's promotion of businesses in western Africa are sort of a "new frontier" in terms of legal issues, which make them harder to prove.

But the honest services charges, which relate generally to what the Justice Department says was Jefferson's failure to disclose conflicts of interests based on his promotion of projects without disclosing that he had a financial interest, are like those routinely filed by prosecutors.

In the past two weeks alone, two public officials in New York and Pennsylvania have pleaded guilty to honest services fraud and many, if not all of the 44 people caught up in a public corruption sting in New Jersey, are likely to be charged with honest services fraud, among other allegations.

There is, however, some hope for those officials and for Jefferson.

The U.S. Supreme Court, which previously had, much to Scalia's consternation, refused to take up a challenge to the statute, recently agreed to take two cases challenging honest services prosecutions.

One deals with the conviction of media baron Conrad Black. The second deals with the attempted prosecution of Alaska state Rep. Bruce Weyhrauch, who is accused of seeking to do legal work for a company with a matter before the legislature.

Although neither case directly challenges the constitutionality of the honest services fraud statute, Lisa Casey, an associate professor of law at Notre Dame University, said the cases, given Scalia's interest, could affect both future and past prosecutions.

But relief for those accused or convicted of violations of the law, is something of a long shot, given that several appellate courts have ruled that the statute is not so vague as to make a person with reasonable intelligence have to guess as to its meaning, the general standard used by courts in a constitutional evaluation.

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Bruce Alpert can be reached at or 202.383.7861.Jonathan Tilove can be reached at or 202.383.7827.

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