ANALYSIS

By not losing on any of the six felony counts for which he was being tried, John Edwards won the biggest victory of his political and legal life on Thursday. A mistrial on five counts and an acquittal on one resulted in a clear -- if not complete -- legal vindication and a likely fatal setback for federal prosecutors seeking to convict the former U.S. senator and 2004 Democratic vice presidential nominee for allegedly violating the Federal Election Campaign Act.    

Arguably the most famous American lawyer since Clarence Darrow to face a criminal trial, Edwards may well see the inside of a courtroom again, but as a still-licensed attorney rather than as a criminal defendant facing retrial. 

Having followed the investigation and prosecution since its inception in 2008, having attended pre-trial hearings in 2011 and having witnessed the entire 2012 trial, I offer the following seven takeaways on what happened, why, and what’s coming:

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The government’s case can only get worse.  The trial that just ended represented prosecutors’ best opportunity to obtain a conviction.  The U.S. Department of Justice’s failure to prevail on a single count had nothing to do with the quality of the lawyers involved.  David V. Harbach, from DoJ’s Public Integrity Section in Washington, D.C., and Robert J. Higdon, with the U.S. Attorney’s office in Raleigh, N.C., both did a masterful job.  

 

• Full trial coverage on msnbc.com
• Full transcripts of closing arguments (.pdf)
• Analysis by Hampton Dellinger

Harbach and Higdon knew the law and the facts.  They were prepared and skilled in their direct and cross examinations.  Their closing arguments were powerful, indeed eloquent.  They clearly earned the respect of presiding U.S. District Court Judge Catherine Eagles and virtually every important evidentiary ruling went in their favor.  And yet they still came up short.  Moreover, it is likely the government’s key witness -- former Edwards aide turned Edwards accuser Andrew Young -- would do even worse in a second trial where he could be cross-examined not only about statements in his sex scandal tell-all, “The Politician,” but also his days of first trial testimony.  

Even if prosecutors could obtain a conviction, would it survive on appeal?  What was easily overlooked in the daily theatrics of the trial -- and even without Edwards or his mistress, Rielle Hunter, taking the stand, there was courtroom drama by the barrelful – was how vulnerable any conviction of Edwards would be to reversal on appeal.  

The U.S. Court of Appeals for the Fourth Circuit, and then likely the U.S. Supreme Court, could question whether there was sufficient evidence of Edwards’s criminal intent in a case where the government had to prove beyond a reasonable doubt a “knowing and willful” violation of FECA.  Plus, the correctness of the trial judge’s ruling that “the government does not have to prove that the sole or only purpose of the money [to cover up the affair] was to influence the election” would be scrutinized on review. 

TODAY: Rielle Hunter writes tell-all book

And, as the Citizens United decision epitomizes, federal judges and justices are now extremely skeptical of campaign-related spending restraints in the absence of actual or likely political corruption. The lack of any evidence of a quid pro quo in the Edwards’s case, would have brought the First Amendment implications of the prosecution into the foreground on appeal, along with a host of other credible grounds for a conviction reversal. 

John Edwards may be many bad things, but he’s no Rod Blagojevich.   Disconcertingly youthful hair aside, comparing Edwards to the former Illinois governor now in federal prison after being retried on political corruption charges in 2011 isn’t fair.  First, Blagojevich’s initial trial resulted in a conviction on one count.  Edwards of course was just acquitted on the sole count where the jury reached unanimity.  

More important, Blagojevich was accused of engaging in classic quid pro quo political corruption – essentially offering an incredibly valuable official act (appointment to a U.S. Senate seat) in exchange for support for his re-election campaign.  As noted above, In Edwards’s case there was no allegation – none – of a quid pro quo.  One of the affair cover-up funders was Rachel “Bunny” Mellon.  A near centenarian at the time of her payments to Andrew Young and his wife, Cheri, (only a fraction of were passed along to Hunter), her ambassador appointment days were surely over. The other funder,  Fred Baron, had no designs on Attorney General or other high office as far as we know. Neither sought an earmark or any other official act.  

This would have been a very different case if it wasn’t the first of its kind.   Having assisted with political corruption investigations and efforts to uphold campaign finance restrictions during my years in the North Carolina Attorney General’s office, I naturally side with “clean campaign” types, some (but not all) of whom supported the Edwards prosecution.  But what supporters of the government’s case generally failed to acknowledge was the lack of any clear legal precedents in favor of indicting and trying Edwards, something I pointed out months ago. 

Full trial coverage from NBC News and msnbc.com

Politicians – even deeply flawed ones like John Edwards – deserve to know what the rules are before they are indicted for breaking them.  As one critic of the case told me recently: it’s one thing to ask jurors to throw the book at a defendant, it’s another to ask them to write it first. 

Left hand (DoJ) meet right (FEC).  While the prosecution was above reproach in terms of courtroom conduct, the absence of a finding by the Federal Election Commission of even a civil violation related to Edwards’ conduct was striking.  As discussed in a prior post, DoJ’s typical practice has been to only bring criminal charges in situations where the FEC saw wrongdoing at some level; before a criminal case is brought, “There must be no doubt that the commission considers that the underlying conduct presents a FECA offense,” the Department wrote in 2009. 

The Edwards jury got a glimpse into the FEC’s satisfaction with the Edwards campaign filings, and even that small view may well have been decisive.  While the FEC is a very different agency than DoJ, the less aligned the two are on campaign finance probes the more likely Edwards-like trial losses will continue to occur. 

Making an oft- maligned profession look good, part 1.   Lawyers are often derided, but it wasn’t only the prosecutors who acquitted the profession well. The defense team – D.C.-based Abbe Lowell, aided by North Carolinians Allison Van Laningham and Alan Duncan -- was similarly stellar.  Maybe even more important than the skillful advocacy was the degree of civility and professionalism displayed by attorneys on both sides, both to their co-counsel and to their adversaries. The stakes in this case were sky high for the defense and the prosecution: Edwards’ liberty on one side, the ability of the DoJ’s Public Integrity section to obtain a conviction in a high profile trial on the other. And yet the battling advocates were almost unfailingly courteous and respectful to each other. It’s the kind of courtroom decorum lawyers should exhibit every time but too often don’t. 

Making an oft-maligned profession look good, part 2.   Another frequently poked-fun-at group -- the mainstream media – also acquitted itself well at the Edwards trial, save for one unfortunate allegation (“the flirting juror”), which was later retracted.  I was particularly struck by an effort to ensure an accurate record of the proceedings that began almost immediately.  Despite all the competitive pressures to be the first media member to race out of the courtroom and proclaim the latest trial twist, reporters and producers (print, radio and TV) would immediately circle up at each break and compare notes with each other, all in effort to ensure that witness’ testimony, lawyers’ arguments, and the judge’s rulings were reported as close to verbatim and 100 percent correct as possible.  Because the trial was not televised, it was only the assembled press that could provide a picture of what transpired. The picture of media competitors collaborating to make sure everyone got the story right is one I’ll never forget. 

I’m a lawyer first but I enjoyed assisting with the reporting and analyzing of the Edwards trial.  It was an honor to assist NBC, MSNBC and of course msnbc.com with coverage of the case.   Above all, thanks to you the reader for taking the time to consider my take.

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Lawyers for Army Staff Sgt. Robert Bales, suspected of killing 16 Afghan civilians, will likely mount a two-pronged defense, military law experts say, attacking the evidence against him while also arguing that his reported combat injuries and mental trauma created diminished mental capacity.

Bales’ civilian attorney, John Henry Browne, has suggested such an approach in his public comments on the case, in which the Army has identified the soldier as the lone suspect in the March 11 attack but not yet charged him.

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“There’s no forensic evidence, there’s no medical examiner’s evidence, there’s no evidence about how many alleged victims or where those remains are,” he told NBC Nightly News on Tuesday, adding that he intends to travel to Afghanistan to oversee his own investigation.

But he also stated that his client had “no memory” of the attack and suggested that could be from a concussive head injury. In comments to CBS News on Monday, he indicated he would make a "diminished capacity" argument rather than pursue an insanity defense.

Defense official: Staff Sgt. Robert Bales to face 16 counts in Afghanistan massacre

Some military law experts interviewed by msnbc.com said they expect a legal pincer attack, in which the defense may try to win acquittal by attacking the evidence but have a fallback position aimed at winning a lesser sentence than the death penalty -- which Defense Secretary Leon Panetta has said could be sought in this case.

Military officials have said that after drinking at an Army outpost in southern Afghanistan on March 11, Bales, 38, crept away in the night to two nearby villages, where he shot his victims and set many of them on fire. At least nine of the 16 victims were children, they said.

Gary Solis, former head of the Marine Corps’ Military Law Branch and current adjunct professor of law at Georgetown Law School, said the fact that the crime occurred in a combat zone in a distant country complicates the task for prosecutors, who are expected to charge Bales with premeditated murder and other crimes.

Army Sgt. Robert Bales' lawyer questions evidence in Afghanistan killings

To convict Bales of that charge, prosecutors would have to prove that people died, the means by which they died, that the accused is the person who used those means and had premeditated the offense, Solis said.

That would be no easy feat, given the possibility of numerous crime scene complications, he said.

“The prosecution is under additional burden in that they’re trying a crime that happened … 9,000 miles away,” he said. “They have no bodies, they have no autopsies, they have no forensics, they have no photographs, they have no witnesses. There is no Afghan who is going to come here to testify against this guy, so how do they prove premeditation? It’s going to be a problem for them.”

Daniel Conway, a lawyer and former Marine staff sergeant who has been involved in battlefield investigations in Iraq and Afghanistan of alleged crimes by U.S. soldiers, said prosecuting Bales will be “exceptionally difficult.” Even establishing him as the gunman could be problematic, he said.

“It still remains to be seen whether any of these Afghan local nationals can actually identify Bales as the shooter,” he said. “Now there’s going to be some real linguistic divides here in terms of people’s … ability to communicate what they saw but you may very well have the potential down the road for a defense that he didn’t do it.”

The physical evidence from combat zone crimes is similarly suspect, Conway said.

“In these combat zone cases, you have crime scenes that are contaminated almost instantly … bodies are moved, forensic evidence is either contaminated or cleaned, there (are) typically no photographs that are taken of forensic value so you can’t necessarily go back and do a very thorough wound analysis,” he said, noting that it would be difficult to exhume the bodies if they have already been buried due to Islamic tradition.

“It’s not easy to separate the fact from the fiction in this kind of case,” he added.

If Bales’ case goes to trial, the defense will have an opportunity to react to the government’s case, because the Army presents first. That will enable his lawyers to decide whether to focus on attacking the evidence or arguing that Bales’ reported combat injuries and mental trauma from the battlefield created diminished mental capacity. Or, they may do both, Solis said.

“The government has to go first and it has to prove its case,” he said. “He’s going to be ready to take advantage of any chink in the government’s arguments that he perceives in addition to whatever argument he may have.”

Bales was on his fourth tour in a war zone since signing up for the Army after the 9/11 terrorist attacks in 2001. He had spent three years in Iraq on his previous tours, during which time he lost part of a foot and suffered a traumatic brain injury (TBI) due to a vehicle rollover, media reports say. Two days before he allegedly attacked the Afghan villagers, he saw the aftermath of a bombing in which a fellow soldier had his leg blown off, The Associated Press reported.

While an insanity defense remains possible, experts who spoke to msnbc.com note that winning such a case is extremely difficult in a military trial.

Unlike an insanity defense, where Bales would have to be shown not to have known right from wrong to be acquitted, diminished capacity is simply an argument that the crime was not premeditated and that mitigating factors should lessen his punishment.

“That’s very hard, so … he might have to go with this diminished capacity,” Greg Rinckey, a former attorney with the U.S. Army’s Judge Advocate General Corps who is now managing partner of military law firm Tully Rinckey PLLC, said of an insanity defense. “Most of the cases that I’ve tried, that’s what we’ve went with is because we couldn’t get to … the complete no mental responsibility or the capability to stand trial.”

Eugene R. Fidell, who teaches military justice at Yale Law School, said testimony indicating that Bales’ was afflicted by post-traumatic stress disorder, or PTSD, could be introduced at this juncture, but would be unlikely to result in acquittal.

“Maybe some psychiatrist will say he suffers from PTSD,” he said. “That’s not a defense – probably. There’s no case in which PTSD has given rise to a successful insanity defense in the military.”

Solis said Bales’ lawyers would likely put the brain injury, the wounding of his comrade, the multiple deployments and his foot injury into the “diminished capacity argument box,” with the traumatic brain injury (TBI) possibly being a strong element in support of that claim.

Afghan massacre by US soldier puts focus back on brain testing

“You can get a doctor who will come in there with a chart and … show here’s a normal brain and here’s his brain getting TBI,” he said. “So the jury’s got something concrete … that they can wrap their not guilty finding around,” if that’s how they’re leaning.

Conway said doctors compare traumatic brain injury to a “hardware” problem, whereas PTSD is more like a “software” issue.

Solis, the former head of the Marines law branch, said the horrific nature of the crime could ironically benefit Bales’ defense.

“They’re going to say, ‘Would somebody in control of their facilities, somebody who didn’t have diminished capacity have done something this wacky?’” he said. “The act itself is inherently supportive of a diminished capacity” argument.

As a result, he said, Bales’ case might not even make it to a military courtroom. Perhaps a deal will be struck, or maybe mental health exams -– which could takes months -- will show that Bales is not competent to stand trial.

But Conway, the former Marine who has been involved in high-profile military crime cases, including the 2005 killing by U.S. Marines of 24 unarmed Iraqi men, women and children in Haditha, Iraq, said the defense also runs a risk by telegraphing that it intends to argue diminished capacity.

“It’s a two-edged sword. On the one hand, if they can prevent this from turning into a capital (death penalty) case, that’s a huge victory,” he said. “On the other hand, they’re giving away the playbook and they don’t have any access to the witnesses. So the government is going to be out talking to everybody trying to rebut the diminished capacity defense.”

At the same time, a defense built on PTSD and brain injury is generally a tough sell in a military courtroom, Conway said.

“We have used it many times” to get charges reduced, he said. “I can tell you that it’s hard to get a military jury to be sympathetic to these kinds of defenses because the way they look at it is, ‘I’ve had multiple deployments, I’ve had multiple concussive events … I’ve got family problems, and I didn’t go out and do this.’”

“So you’re going to have to be able to explain to the jury why this case is different from their own experiences in combat and that’s going to be tough to do.”  

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