UPDATE: Prosecution in William Jefferson trial concludes initial closing argument, defense up next
by Jonathan Tilove and Bruce Alpert, The Times-Picayune
Wednesday July 29, 2009, 11:10 AM
UPDATE 11 a.m. -- The prosecution has concluded its initial closing argument after two hours. The defense has up to two and a half hours for its closing, after which the prosecution could use an additional 30 minutes.
Earlier today Judge T.S. Ellis III refused to throw out an obstruction of justice charge, meaning the jury will consider all 16 counts against former Rep. William Jefferson.
ALEXANDRIA, VA -- Jurors in the corruption trial of former Rep. William Jefferson will hear closing arguments in the case today.
Seven weeks since jury selection began, attorneys for the prosecution and defense will each have up to 2 1/2 hours to have their final say before the jury.
Michael DeMocker / The Times-PicayuneRobert Trout (R), attorney for former U.S. Representative William Jefferson, walks into the United States District Courthouse in Alexandria, Virginia on Wednesday, July 29, 2009.
Then, either late today or early Thursday, Judge T.S. Ellis III will present his jury instructions and the jury of eight women and four men will begin deliberating the 16-count indictment that charges the New Orleans Democrat with conspiracy to solicit bribes by a public official, depriving citizens of honest services by wire fraud, violating the Foreign Corrupt Practices Act, money laundering, obstruction of justice and racketeering.
Before the attorneys make their presentation to the jury, Ellis, without the jury present, will hear further arguments and decide whether he should toss out one of the 16 counts, accusing Jefferson of having obstructed justice when he placed two faxed documents pertinent to the case in his briefcase at the time of the FBI search of his New Orleans home in August 2005. Ellis said Tuesday it was not clear whether Jefferson could have thought the documents sufficiently significant to warrant the obstruction charge.
According to the U.S. attorney's office, if Jefferson were convicted on all 16 counts he could face a sentence of 235 years in prison, though that is more arithmetic than practical calculation.
The burden, as always, is on the government to prove its case beyond a reasonable doubt. But the onus in closing arguments will be on Jefferson's lead attorney Robert Trout to cast a shadow of doubt on the government's massive case and to redirect the jury's attention away from the $90,000 in cash that the FBI found in the freezer of Jefferson's Washington home when it raided his homes there and in New Orleans in the summer of 2005, and direct it toward the letter of the federal bribery law that he is alleged to have broken.
An unidenified FBI agent holds some of the infamous frozen cash found hidden in the freezer of the then-congressman's Washington home.
Focus on official acts
"The Jefferson case turns on a very technical legal argument as to what constitutes official acts, and the defense is asking the jury to transcend all of the prejudicial optics and evidence in the case, in a sense they are asking the jury to get beyond the freezer and look at the language of the federal statute and that may be a bit too much to ask, " said Jonathan Turley, a professor of law at George Washington University.
What is generally agreed upon is that Jefferson, who over the years has developed a strong interest and expertise in Africa, tried to help American businesses with deals in West Africa, businesses that in return made arrangement to provide payments or a piece of the action to members of Jefferson's family or companies under their control.
The government argues that Jefferson was acting as a member of Congress, that he was using the power and influence of his office to help those businesses, and that those considerations he demanded for his family were bribes.
The defense argues that Jefferson, acting as a private citizen, agreed to help those businesses raise capital and connect with decision-makers, mostly in Africa. They contend that his motive was not corrupt and that his actions were well outside the normal duties of a member of Congress.
Trout's mission today is all the more important because, after some six weeks of testimony by prosecution witnesses, the defense did not call Jefferson to the stand and confined its formal presentation of witnesses and evidences to only about two hours last week. Trout's closing argument will be the only time since his June 16 opening statement that he can present an extended alternative reading of the facts of the case and a different view of Jefferson and his actions.
"He has to give a counter-narrative to the prosecution's presentation of Jefferson as a conniving, greedy powerful man who tried to enrich himself, " Turley said.
Adding to Trout's burden, he must present his case to the jury while hemmed in by Ellis' jury instructions, which, the judge has indicated, will hew to a more expansive reading of the term "official acts, " than that proffered by the defense.
While those jury instructions may be ripe for a post-trial appeal, Jeffrey Abramson, professor of law at the University of Texas in Austin, and author of the "The Jury System: The Ideal of Democracy, " said, "It is settled federal law that the judge's instructions are officially binding on the jury to what the law is and defense lawyers have very little leeway to argue directly to the jury that the jury should disobey the judge's decision on what the law is.
"The question is whether an artful closing argument can suggest to a jury that certain equities and context ought to make them nonetheless look with a jaundiced eye at the evidence, " he said. "Sometimes juries do that when there are issues that might make them more sympathetic for the defendant such as a sense that the prosecution has been overbearing and perhaps entrapped the defendant."
Warning about defense
But, during the extended conference between the judge and the attorneys on jury instruction Tuesday, Ellis warned that if the defense ventures too far into an entrapment defense, he would have to offer the jury special instructions about entrapment, which Turley said would be "deadly" to the defense.
Loyola Law Professor Dane Ciolino said that lawyers sometimes overstate the practical importance of jury instructions. "Jurors often completely ignore the jury instructions, " he said.
Indeed, Turley said, lots of things can enter into a juror's calculations, including, in a high-profile case like this, a juror's worry over how to explain to friends or family how he or she voted to acquit a congressman with all that cash in his freezer.
Turley thinks the defense team's more realistic objective isn't an outright acquittal but a hung jury.
Tuesday began with a brief court session in front of the jury, at which the defense formally rested its case.
Andrea Jefferson, the congressman's wife who has been in court every day of the trial, was joined by their five daughters sitting in the front row in the courtroom. The six Jeffersons were the principals of ANJ, a consulting firm that the government considered nothing but a sham company designed to disguise the destination of bribe money. But seated alongside their mother, Jefferson's five daughters offered an impressive tableau, which can be expected to once again be on display during closing arguments. From the jury's vantage point, when they gaze across the room at the defendant, they will not see a solitary figure sitting alongside his attorneys, but a man framed by his wife and five daughters seated behind him.
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Jonathan Tilove can be reached at email@example.com or 202.383.7827. Bruce Alpert can be reached at firstname.lastname@example.org or 202.383.7861.