Case against Jefferson may not be airtight; Experts see weak spots in feds' arguments
by Bruce Alpert, Washington bureau, The Times-Picayune
Sunday June 14, 2009, 7:09 PM
ALEXANDRIA, VA. -- When Peter Zeidenberg, a Washington lawyer and former prosecutor, read about the 2007 indictment of then-Congressman William Jefferson, he figured the Justice Department had a pretty strong case.
Now, he and some other prominent legal experts believe that the Jefferson corruption trial, although unlikely to end in acquittal, could produce a hung jury. A guilty verdict requires all 12 jurors to agree.
After three days of jury selection last week, the trial begins in earnest Tuesday with opening statements from the prosecution and defense.
When the government filed its 16-count corruption indictment in June 2007, alleging that the New Orleans Democrat had demanded and, in some cases, received bribes in return for his help promoting projects in Western Africa, Jefferson's prospects looked grim.
"You've got this guy on videotape taking marked FBI money for apparently illicit purposes and then it is found in his possession in his freezer, you got to think that it's going to take pretty close to a miracle to get him out of this," said Zeidenberg, a former member of the Justice Department's Public Integrity Section.
The venue for the trial -- Alexandria, Va., the home of many military and government employees, who are generally seen as sympathetic to the prosecution -- also appears to give the Justice Department the judicial equivalent of home-field advantage. The racially diverse jury of eight women and four men selected last week to hear the case includes representation from both the military and the government.
But Zeidenberg and Jonathan Turley, a George Washington law professor, say they wouldn't be shocked if the trial, which is expected to last four to six weeks, doesn't end with a conviction.
"It is not as easy a legal case for the prosecution as the facts might suggest," Turley said. "The prosecution could well lose this case."
Some legal experts still believe prosecutors have a huge advantage, mainly the $90,000 in marked bills found in Jefferson's freezer and what the government says are documented demands for payments to family-owned businesses in return for his help promoting projects in Africa.
But recent events have given the Jefferson defense team reason for hope.
Last week, lead prosecutor Mark Lytle told Judge T.S. Ellis that Lori Mody, the government informant who was supposed to be the prosecution's star witness, will not testify.
It's not a total loss. There are other witnesses who will say they were "hit up" for bribes by the former congressman. And secretly recorded conversations between Mody and Jefferson are still admissible at the trial. But her absence gives the Jefferson team more opportunity to raise questions about her motives and what might have been said when the tapes weren't rolling.
Moreover, in some of the discussions, Jefferson wrote, rather than spoke, about what prosecutors say were demands that his family be given a financial stake in Mody's Nigerian investments.
If the FBI doesn't have the papers on which Jefferson wrote down his alleged demands, the information will be off-limits to the jury.
Prosecutors also lose non-taped discussions between Jefferson and Mody, including a 2004 meeting in the Congressional Dining Room in which investigators allege that Jefferson addressed what he would need to help promote the Nigerian telecommunications project Mody was financing.
There's also a question of whether Jefferson's main legal argument could sway at least one juror, enough to produce a hung jury. Jefferson's attorneys say that payments sought for Jefferson's family-owned businesses in return for the congressman's help are private business deals, not official acts, as alleged by the government.
Only official acts -- such as votes, legislation or appropriations earmarks -- are covered by the bribery statutes, his attorneys argue.
Zeidenberg said the prosecution's decision to call an expert witness to dispute Jefferson's interpretation of "official acts" indicates the Justice Department is concerned about the argument. He credits Jefferson's lead lawyer, Robert Trout, with using innovative arguments to keep his client from being convicted.
But Allan Goelman, a Washington lawyer and former federal prosecutor, said he doesn't think the Jefferson argument will be persuasive with the jury.
"If you have evidence of $90,000 stuffed in foil and food containers in the freezer, an attorney is really going to be hard-pressed to persuade the jury on more esoteric legal questions," Goelman said.
And Maryland lawyer Jacob Frenkel, a former New Orleans prosecutor, said that unfortunately for Jefferson, the trial judge, Ellis, generally agrees with the broader interpretation of the bribery statute advanced by the prosecution.
The jury will hear opening statements Tuesday. Frenkel said those statements can be critical, especially in a complicated case. He said a recent study found that 80 percent of jurors make up their minds about guilt or innocence after hearing the prosecution and defense make their opening statements.
Bruce Alpert can be reached at email@example.com or 202.383.7861.