ABC news has obtained the 3 page medical report from the doctor who examined George Zimmerman the day after he shot Trayvon Martin. The report was included in the discovery turned over to the defense Monday.

Zimmerman was diagnosed with a "closed fracture" of his nose, a pair of black eyes, two lacerations to the back of his head and a minor back injury....

The report also shows Zimmerman's upper lip and cheek were bruised and he had lower back pain. The back of his head had two lacerations, one of which was almost an inch in length. [More..]

The report also lists medication he was using. He took a medication that is routinely prescribed for children and young adults with attention-deficit disorder and a sleep medication. (Please do not use the name of the drug without asterisks in your comments because it brings out spammers from other countries who auto-register and post dozens of spam comments at one time. It takes me a long time to delete them.)

WFTV News reports it has confirmed Trayvon's autopsy report shows injuries to his knuckles, and broken skin on the knuckles.

After the release of the state's affidavit was released, I began opining that the state would concede it was Trayvon Martin who turned their encounter into a physical one by slugging George Zimmerman. I expounded on this when writing about the requirements for second degree murder, and the support from his neighbors and the bond hearing.

In a nutshell, the state's theory seems to be Zimmerman improperly profiled Trayvon as a criminal, reporting him to police as a suspicious person for no objective reason. Zimmerman referred to criminals who commit home invasions, and to Trayvon (by erroneously assuming Trayvon might be about to commit a home invasion) as "as*holes" and "f*cking punks." Zimmerman's use of those words in reference to criminals and Trayvon is evidence of his ill-will and hatred, and of his depraved mind, in the act of shooting and killing Trayvon during the course of a later struggle.

The state seems poised to claim that Zimmerman's following of Trayvon, and his verbal demand Trayvon explain his presence in the neighborhood, based on his unfounded assumption Martin was a criminal, somehow provoked Martin into hitting Zimmerman and made him the aggressor.

For the reasons I explained in the above posts, the state is unlikely to prevail on such a theory. To be an aggressor, Zimmerman had to provoke the force used by Martin. Provoking a state of fear is not enough. Also, Zimmerman's provocation had to be contemporaneous with Martin's use of force against him. It can't be the result of something that happened earlier.

Profiling, following and pursuing someone is not provocation for a punch in the nose or banging someone's head into concrete.

If Zimmerman is not the aggressor, if he didn't provoke Martin's punch, he had no duty to retreat, and so long as his fear of serious bodily injury or death from Trayvon's punch and/or slamming his head onto cement was reasonable, his use of deadly force in response was justifiable. Zimmerman was not committing a crime by profiling or following Trayvon and Zimmerman had a right to be on the streets of his neighborhood.

Even if Zimmerman somehow was found to be the aggressor, all that does is trigger a duty to retreat, if possible. If retreat isn't possible, and he feared serious bodily injury or death from Trayvon's physical attack on him, he can still use deadly force.

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or...

The statute couldn't be clearer that the actions of the aggressor must be one that provoked the use of force. The provocation also has to be contemporaneous to the use of force. See Johnson v. State:

Specifically, section 776.041 "[s]ubsection (2) precludes the initial aggressor from asserting self-defense where he or she is the individual who provoked the use of force contemporaneously to the actions of the victim to which the defendant claims self-defense.

.... we note that the initial provocation would necessarily had to have been contemporaneous to the actions of the victim, as described in subsection 2(a), to which the defendant claims self-defense.

(The other section of the statute regarding forcible felonies only applies when the defendant (not victim) is charged with a contemporaneous independent forcible felony.) Numerous cases and Florida's standard jury instructions make this clear, as does a plain reading of the statute.

But even if Zimmerman's acts of following Trayvon or profiling Trayvon as a criminal were somehow deemed to be provocation, they still had to be contemporaneous with the punch. The only thing that could be considered contemporaneous would be his asking Trayvon to explain his presence. That hardly justifies a violent punch that breaks Zimmerman's nose in response.

If Trayvon struck Zimmerman, the only issue should be whether the attack was severe enough to reasonably cause a person, in this case Zimmerman, to fear serious bodily injury or death. Even in the unlikely event the Court were to agree with the state that Zimmerman was the aggressor merely for following Trayvon for no good reason, he'd still be entitled to claim self-defense after Trayvon attacked him, unless he had the opportunity to get away. How could he retreat, if he was on the ground locked in a struggle that began with him being punched and sustaining a broken nose?

The state waited to charge Zimmerman until its investigation was complete. They had to know (or at least believe) Trayvon was the one who turned the encounter from a verbal one into a physical one. The language of the affidavit and the testimony at the bond hearing strongly suggest it did know this. As I've said before, one of the first rules of trial practice is that a lawyer, in creating a theme and a theory for a case, must accept the "facts beyond change." You build your story from that.

The state may have done its best in coming up with a theory of criminal responsibility that accepts the "facts beyond change," including that Zimmerman had a broken nose and head lacerations, caused by Trayvon punching him and slamming his head against the ground or on concrete. It may sound reasonable to some, but I doubt it is legally supportable.

For the applicable legal citations and principles, see my prior posts:

• Zimmerman's Neighbors Speak Up
• Stand Your Ground and Self Defense
• Can the State Prove Zimmerman's Ill-Will, Hatred, Spite and Evil Intent?
• Zimmerman Charged With Second Degree Murder

As to the state's likely theory:

• Reaction to the George Zimmerman Bail Hearing

Also see:

• The current Florida jury instructions on self-defense (2010) and manslaughter (2011.)(A proposed revision of the self-defense instruction is currently under review.)

John Edwards was probably singing the Boomtown Rats, “I don’t like Mondays” to himself yesterday. His bad luck began in the morning when first the Judge got snippy with Abbe Lowell about Lowell deciding to put his expert witness on when she still hasn’t ruled on whether she’ll allow it. " Come back later in the and we’ll discuss it."

Lowell calls his next witness, Lora Haggard, former CFO of his John Edwards for President Campaign. More bad news for John Edwards. The Judge, outside the presence of the jury severely curtailed what she could say. She was not allowed to tell the jury that an FEC audit completed just last month, which knew all about the Indictment and monies from Fred Baron and Bunny Mellon, approved without objection his campaign's financial reports that did not include the Baron/Mellon funds,. [More...]

What’s a lawyer to do? Send out the minions. The minions produced, big time. They located the tape of the FEC open hearing on the audit (which is on the FEC website), and late last night filed a motion to admit it. You can read it here.

What excuse will the trial court use to block it? I can’t think of a single valid reason. But don’t listen to me, here’s what Team Edwards had to say in their motion.

The tape directly refutes the false statement charge in Count 6 of the Indictment.

Mr. Edwards is charged with causing false reports of a "material fact" to the FEC by not reporting the payments by Mr. Baron and Ms. Mellon as campaign contributions as part of a trick, scheme or device. Because the FEC is aware of theissue and has explained that the payments would not need to be reported, even if the jury finds that the alleged payments were unlawful campaign contributions, those statements by the FEC are certainly probative as to whether the FEC has been tricked or the failure to report the payments as contributions is "material."

On July 21, 2011 the commissioners of the FEC reviewed the "Proposed Audit Division Recommendation Memorandum on John Edwards for President, Inc." in open session.

The FEC referenced the Indictment in this case (with Count 6 included), and its relevance to the FEC's audit of the campaign .....FEC Commissioner Donald McGahn raised the issue of whether the record should remain open, in the event the jury finds that the payments should have been reported as contributions. But he explained there is no reason to leave the record open in this case because, no matter what the jury concludes, the FEC concludes those payments would not be reportable as campaign contributions.

Commissioner McGahn stated “ I can say...in my view [the monies paid by Mellon and Baron are] not reportable." No member of the Commission objected to Commissioner McGahn's assessment, and the Commission voted to adopt the Audit Division's recommendation to close the record unanimously.

Pretty good for Edwards, don’t you think? But Team Edwards isn't taking any chances with the judge who seems all too inclined to rule for the Government. On the relevancy of the tape:

The tape is relevant because it credits Mr. Edwards' defense that the FEC was not tricked with respect to the payments by Mr. Baron or Ms. Mellon and that the FEC does not find the omission of the payments "material" because the FEC does not believe these payments had to be reported, or at least it was reasonable for them not to be. ...What better evidence is there that there is no concealment of a material fact than that the agency accused of being the victim of the concealment is aware of the nondisclosure and explains that it would not want the payments reported as contributions? The fact that the FEC would not require the disclosure of the payments as contributions demonstrates that the FEC does not consider the omission material. In conjunction with the testimony of Lora Haggard, this completes the thought.

Team Edwards cites an 11th Circuit case where a candidate received a $1,500 payment that was used to pay his living expenses.. He did not report the payment as income, and was prosecuted for filing a false tax return. The defendant claimed the payment was a gift and not taxable income. The Government said it was a campaign contribution that had to be reported. The candidate sought to introduce expert testimony at trial that it was a gift. The government claimed that the payment was a campaign contribution, rather than a gift, and that converting it to to cover living expenses required it to be treated as income.

The defendant sought to introduce expert testimony to explain that the candidate’s interpretation of his legal obligation (i.e., that the payment was not a campaign contribution) was well-founded and reasonable. The trial court refused to allow it. He was convicted. The appeals court reversed.

The Eleventh Circuit explained that denial of this evidence was prejudicial because it is "highly probative for the defense to show that the defendant's belief -- whether or not it was mistaken -- was reasonable; evidence of the belief's reasonableness tends to negate a finding of willfulness and to support a finding that the defendant's belief was held in good faith." Looking back at the decision, the Eleventh Circuit explained that, without such evidence, "it would be difficult if not impossible for a defendant to introduce evidence specifically about his mental state. Consequently, he had to focus on providing circumstantial evidence concerning collateral matters, such as the reasonableness of his beliefs, from which the jury could infer what his mental state was.

Team Edwards maintains that because a critical issue in Count 6 is one of specific intent, the tape is relevant evidence. Anticipating objections from the Government it goes through every possible evidentiary rule to show the tape is admissible. I’ve listed a few below:

The Tape is self authenticating’

There can be no question as to the authenticity of this audio tape of an open session by the FEC, which was taped by the FEC and is maintained on the FEC's own website. See here. The fact that the FEC itself acknowledges that this is a recording of its official proceedings makes it a self- authenticated recording under Federal Rule of Evidence 902(4), 902(8) and 902(11). Because the FEC and the tape itself identify the speaker as Commissioner McGahn, his statements also are authenticated under Rule 901(b)(5) and 901(b)(7).

Hearsay: No Problem:

Because the FEC records its open session meetings and makes them publicly available, the tape is not hearsay under Federal Rule of Evidence 803(6) (Records of Regularly Conducted Activity).

Rule 803(8)

Similarly, the tape is admissible under Rule 803(8) because Commissioner McGahn's statement reflects the FEC's factual finding that there would be no reason to delay the audit to await an amended report from the campaign following the jury's verdict in this case.

Rule 801(d)(2)

The statement also is admissible as an admission by a party-opponent under Rule 801(d)(2). “[T]he Federal Rules clearly contemplate that the federal government is a party-opponent for the defendant in criminal cases.”

....Where a defendant alleges that the government has taken inconsistent positions, “the inconsistencies of the government’s positions . . . should [be] made known to the jury.”

In addition, under well-settled application of Federal Rule of Evidence 803(8), the FEC is the agency to be in charge of this issue, it needs not be a formal finding of that agency but a statement will suffice, and any official of the public agency can speak and that statement is admissible.

Our Supreme Court says “As a constitutional matter, a defendant’s right to present a defense . . . ‘includes, at a minimum, . . . the right to put before a jury evidence that might influence the determination of guilt.’

Such an “[e]rror cannot be harmless where it prevents the defendant from providing an evidentiary basis for his defense. ” The Fourth Circuit allows evidence that will support or undermine the believability or reasonableness of a defendant's claim of innocent intent.

Monday afternoon, after a hearing outside the presence of the jury at which his proposed election law expert, former FEC Commissioner Scott Thomas testified, the Judge ruled Thomas can't give his expert opinion that the funds were not campaign contributions.

Judge Catherine C. Eagles, however, ruled against Mr. Edwards’s lawyers and said Mr. Thomas could not offer the United States District Court jury his opinion on the legality of the contributions. Judge Eagles said it was her role — not a witness’s — to explain the law to the jurors and let them decide if Mr. Edwards had violated it.“It doesn’t seem to me that the jury needs help,” she said. “It just doesn’t seem that complicated to me.”

I'd like to know how hearsay testimony that Elizabeth Edwards ripped off her shirt and bra to scream at her husband, or that Rielle Hunter called her spiritual adviser when a Reuben sandwich came with the wrong dressing, is relevant to Edwards' intent in accepting campaign contributions, but the testimony of a former FEC Commissioner and evidence of an FEC audit negating the Government's theory that he knew the Mellon/Baron funds were campaign contributions is not relevant? The public wants to understand too, and I don't think quoting Rule 702 or Rule 904 suffices.

Why isn't it more important to allow the defendant to show, in the words of the Supreme Court, that this prosecution violates the due process principles "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed" and

"[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."

There are no cases to support the Government's novel theory that third-party spending on a candidate's "paramour" could result in a campaign finance violation. As Team Edwards argued in its Motion to Dismiss for Failure to State a Crime:

The fact that former Chairmen of the FEC find the government's suggestion of criminal liability flawed and without precedent makes plain that Mr. Edwards could not have been on notice that his conduct "knowingly and willfully" violated the campaign finance laws.

Our Supreme Court has said:

"[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope."

Even in the 4th Circuit where Edwards is being tried, courts have found campaign finance regulation is 'baffling and conflicted." An expert would illuminate, not obfuscate, the meaning and application of the law.

You don't need a weatherman to know which way the wind blows at this trial. The Judge's statement Monday that she thought the expert's testimony would differ from her final instructions, is practically a declaration that she's going with the Government's highly disputed and unprecedented interpretation:

The judge agreed with Harbach, saying that the case "doesn't seem that complicated to me" and worrying that Thomas' testimony would conflict with her jury instructions at the end of the case. "He made a pretty good closing argument for the defense," she said after hearing Thomas testify.

Here's what Edwards' experts, Former Commissioners Thomas and Robert Lenhard, opined in an affidavit to the Court:

[U]nder the law as developed by the United States courts and the Federal Election Commission, these payments would not be considered to be either campaign contributions or campaign expenditures within the meaning of the campaign finance laws …. [T]he Federal Election Commission, if asked, would conclude that these payments did not constitute a violation of the law, even as a civil matter; and …that the facts do not make out a knowing and willful violation of the campaign finance laws warranting criminal prosecution. . . . Moreover, in 2007 and 2008, a candidate would not have been on notice that the payments by Mrs. Mellon and Mr. Baron to Ms. Hunter would violate the campaign finance laws. A criminal prosecution of a candidate on these facts would be outside anything we would expect after decades of experience with the campaign finance laws.

Courts have been clear the Government doesn't get to decide what is a crime. That's Congress' job. From Judge Kosynski's concurring opinion in United States v. Goyal, 629 F.3d 912, 922 (9th Cir. 2010):

"This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal."

***********

Cate Edwards is expected to testify for her father today. Will the Government object to her telling the jury what she has known and heard her father to say? ? Will the judge restrict her testimony like she did that of his experts? Or will she admit Cate's testimony the same way she admitted the irrelevant trash-talk testimony of the Government's witnesses?

When this trial is over, if Edwards is convicted, millions will believe the real reason he is being sent to the gallows has nothing to do with campaign contributions and everything to do with his having a child out of wedlock with a woman his friends and staffers found "kooky," while his demanding and unhappy wife was dying of cancer.

Or, they may believe that he's being punished for what in the eyes of the Government is apparently an even greater sin -- he had the gall to take the case to trial instead of kow-towing to the Government's demand he lie down and plead guilty to something he had no reason to believe he was guilty of.

Only if the trial is fair, can the public trust in the integrity of an ensuing guilty verdict. I don't see how anyone (other than a prosecutor or Republican) will have faith in the integrity of a guilty verdict in this case, should that occur.

If John Edwards is convicted, saying he'll win on appeal is little consolation. His life, already a mockery by the public shaming he was subjected to in this trial, will have been devastated.

When you break the law, the Government has the right to punish you. It does not have the right to destroy you. And if you are found not guilty, the Government should be obligated to help you restore your life.

The discovery package included 67 compact discs and numerous hardcopy documents, including the State’s Discovery Exhibit and Demand for Reciprocal Discovery. The discovery also includes witness statements, 911 calls, non-emergency calls, photos, video, medical records, and more

The Orlando Sentinel has more details of what was turned over, as Corey filed an 8 page document with the Court right before it closed describing what was turned over. [More...]

There are 67 cd's of discovery. The state must turn over all it has, including information that exculpates Zimmerman as well as any that inculpates him.

Since no one has seen the state's 8 page document, everyone is just quoting reporters from the Orlando Sentinel.

We don't even know if the 8 page document represents anything other than a table of contents or catalog of what's been provided. As part of discovery, the state has to list potential witnesses it may call. We don't even know if the Sentinel's reference to "Primary witnesses" means witnesses with direct information rather than background information, or witnesses they think support their case and it intends to call at trial.

We've already heard Zimmerman's call to police, the neighbor's 911 calls, and Trayvon Martin's phone friend "Dee Dee"s version of events as provided to the Martins' lawyers. Witness re-interviews conducted after they were exposed to the media reports and aligned themselves with one side or the other, are not great evidence.

What will be more interesting is the autopsy report, Zimmerman's medical reports, the statement of the Emergency Rescue worker/paramedic who treated him in the back of the patrol car, the ballistics reports, DNA/trace evidence and perhaps fingerprint reports.

The crime scene photos may tell a lot. Then again, maybe not. I would have expected to see a footprint expert mentioned. It was a rainy night. Did neither Zimmerman nor Trayvon leave footprints (particularly on the grass) that could have indicated where they first encountered each other, or their positions when they reached the grass? Or whether both the verbal and physical encounter happened in the same spot?

What will photos of the clothing show? Also, I wonder if the testing results from their clothing are encompassed the state's description of DNA/trace evidence or ballistic evidence. Is there no bloodstain pattern analysis? There's no mention of a an expert in in that field in the Sentinel article.

The video of 7/11 is may tell the time Trayvon was at or left the store. It may also show whether he left the store with the AZ Iced tea in a bag or just carried it in his hand. As for the clubhouse video, I'm not sure what it's relevance will be. It could show the time that Trayvon walked by it or when Zimmerman drove by it, if he ever did that night.

What I didn't see described in the Sentinel was any audio recording of Trayvon Martin's voice. Since the state's investigator testified at the bond hearing the FBI agents could not conclude whose voice was crying for help in the background of one of the 911 calls, and the only other audio experts listed are Tom Owen and Ed Primeau who rendered an opinion for the Orlando Sentinel, the voice experts may cancel each other out.

Primeau never mentioned doing any testing. On his website, he says he used what he calls his "ear critical listening skills" which he describes as a skill comparable to that of a piano tuner.Based on his listening skills, he decided it was a teenager's voice, mostly because the voice on the tape "cracks like teen male’s does when going through puberty." (Going through puberty? Trayvon Martin was 17, not 13.)

Primeau adds:

Tom Owen and I may have the tools and experience available to us to conduct voice identification, but we do not have the proper voices recorded to arrive at a positive ID and conclude the voice yelling on the 911 recording is Trayvon Martin yelling for help. By process of elimination, both Tom Owen and I agree the voice yelling in the 911 recording is not George Zimmerman. That is our opinion, and there is no money involved.

So on his website he says he can't say the voice is Trayvon's, he just thinks it is not Zimmerman's voice. Yet according to the Orlando Sentinel, he said:

"I believe that's Trayvon Martin in the background, without a doubt,"

When he first described how he compared the voices on the tape, he explained he took the call from the Mother Jones website, put it into his "audio computer" and...listened. He added:

As an audio forensic expert I want to make clear that this is not formal voice identification and not meant for legal purposes. It is not a statement of my opinion but rather a presentation of facts as I hear them in two particular 911 recordings.

From the bond hearing transcript:

Did you do any forensic analysis on that voice tape?

GILBREATH: Did I?

O'MARA: Did you or are you aware of anything?

GILBREATH: The "Orlando Sentinel" had someone do it and the FBI has had someone do it.

O'MARA: Is that part of your investigation?

GILBREATH: Yes.

O'MARA: Has that given any insight as to the voice?

GILBREATH: No.

One last item I keep forgetting to mention -- and I hope the discovery answers it. If Zimmerman''s medical records support that he was smacked in the nose, can it be determined whether he was hit by a hand or an object, like an Arizona Iced Tea bottle or can? Was the can seized and sent for testing? Could testing show whether Trayvon had the can or bottle inside the 7-11 bag, and swung the bag at Zimmerman, hitting him in the nose? If Zimmerman was hit with the AZ Iced Tea can or bottle, it might explain why there were no marks on Trayvons hands or knuckles, assuming that's the case.

I'm also curious about the route Zimmerman took from his house to where he parked his car, and what time he left his house. And whether police took photographs of the cement utility covers in the grass near where the body was found. Do they show blood stains? Was any blood found on them that matched Zimmerman's to back up the reports of police and his friends and family who say Trayvon banged his head on cement?

Are there other kinds of evidence you would expect the discovery to clear up? Any other categories you would have expected the Sentinel to mention in describing the State's 8 page list of items?

You can discuss your theories here, so long as you don't misrepresent disputed information as known facts and state your opinions as opinions, not fact. And please, don't even bother to say this list of items turned over in discover, which we haven't even seen and has only been described in a news article, proves Zimmerman is guilty.

U.S. District Judge Catherine Eagles refused to allow Haggard to testify that the FEC determined last July that the money from the two donors wasn't campaign contributions. Prosecutor Jeffrey Tsai argued outside of the jury's presence that the stance of one FEC commissioner was irrelevant to the criminal case.

Haggard was allowed to testify that FEC auditors never asked her to amend campaign finance reports to include the money from Mellon and Baron, even after Edwards was indicted last summer. The audit of the campaign, which was required because Edwards accepted federal campaign matching funds, was finally completed last month, she said.

And the judge still hasn't ruled on whether Edwards' expert can testify. [More...]

Original Post

The defense in the John Edwards trial is presenting its witnesses. First up was Lora Haggard, who was the controller or CFO of his 2008 campaign. Nicole Ferguson of My Fox 8 has been tweeting from court. Her first tweet:

Edwards' defense came out swinging this morning, and Edwards is smiling.

Later, Ferguson tweeted that defense witness Haggard testified Edwards had no influence over campaign reports submitted to FEC. Haggard took full responsibility for reports. She said the FEC commissioner concluded no excessive contributions had been made, so they didn't need to be reported. Ferguson also said prosecutors were "clearly frustrated" during cross-examination of Haggard and they "argued Haggard [and the] FEC commissioner were not experts in this matter the jury is deciding."

Via Twitter, Haggard said she didn't consider the Mellon or Baron contributions to be campaign contributions, but apparently the parties are now battling over whether she can say what the FEC told her.

MSNBC has posted the full transcript of Friday's hearing on John Edward's Motion for Judgment of Acquittal.

Yesterday, Team Edwards filed its objections to the Government's latest round of proposed jury instructions. I discussed the ones on reasonable doubt in the update to this post.)

The biggest debate now seems to be over the meaning of the word "the" in the campaign finance statute which requires that in order for a contribution or expenditure to be considered a campaign contribution it must be "for the purpose of influencing the election." The Government last week filed a brief arguing that "the purpose" can be one of several purposes. The defense says Congress' use of the word "the" in "the purpose" means influencing the election must be the sole purpose of the donated funds in order for the monies to be considered a campaign contribution.

Since I have my own pleadings due today, instead of writing 3,000 words today as I usually do, I just uploaded the relevant jury instructions and arguments so you can read them for yourself.

• Government's 5/10 Proposed Instructions and Brief
• Defense 5/13 Objections to Government Instructions
• Defense 5/7 Proposed Instructions.

To be continued.

I'm sure there's political and other news tonight, but I spent the day with the TL kid, so I'm not sure what it is.

Here's an open thread, all topics, TV related or not, are welcome. (If you want to discuss Zimmerman, there's a new thread on the case here.)

It will include crime scene photos, Trayvon's autopsy, Zimmerman's five statements to authorities, witness statements, and crime lab work — if it's been completed — on clothing and Zimmerman's handgun.

I'm not sure what is sealable about the autopsy report or lab tests, but I don't blame O'Mara for wanting time to review it before it's publicly released.

Our older Zimmerman threads are full, so here's a place to discuss the anticipated discovery and legal issues. (Note: You may not use this site to link to petitions and argue for restrictions on stand your ground laws. I oppose such restrictions and do not support more gun control laws. Keep your comments to the law's application to the Zimmerman case or other past or pending cases.) [More..]

Also keep in mind that despite what certain newspapers report, race is not an element of the charges and the state has not accused Zimmerman of racially profiling Trayvon Martin. It has alleged he profiled Trayvon as a criminal. The affidavit for probable does not even contain the word race. It also disavows that he spoke a racial slur.

Thus, please refrain using this thread to post your personal view of whether Zimmerman engaged in racial profiling or stated a racial slur. Since as of now, the state has not made race an issue, it's not going to be an issue here. If you aren't sure if your comment is on topic or violates our rules, save a copy on your computer in case it gets deleted.

Also, remember to state your views as your opinion, not fact, and don't misrepresent disputed facts as undisputed. And do not proclaim Zimmerman (or any defendant who has not been convicted) guilty. Your views on what the evidence shows or needs to show for a conviction or acquittal is allowed, your conclusion that he is guilty is not.

Lastly, our customary rules apply as to no profanity and no name-calling, insults or personal attacks on other commenters, the host of this site, or either Zimmerman or Trayvon Martin, their lawyers or people connected to them. We aim for a higher level of discourse.

NBC's Today Show has a new video on whether John Edwards should testify at trial. It includes interviews with two legal analysts who opine that John Edwards should testify. One even said "It's up to John Edwards to look the jury in the eye and convince them he did not violate the campaign finance laws."

That's absolutely not the law. That the analyst obviously knows this is not the law and may just be making the point that in his view, as a practical matter, jurors will expect Edwards to convince them of his innocence, does not excuse his perpetuating such a false notion. It's really an irresponsible comment.

John Edwards does not have to convince this jury of a single thing. He has zero burden of proof. The burden of proof is completely on the Government. It is the Government that bears the burden of proving each and every element of each crime charged beyond a reasonable doubt.

I can think of no good reason for John Edwards to take the stand and I predict he won't. [More...]

Three bedrock principles in every criminal case are the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt.

The jury is not being asked to determine if Edwards is innocent. He is presumed innocent. It is only tasked with determining whether the prosecution has convinced them beyond a reasonable doubt that Edwards is guilty.

Trials aren't a "fill in the blanks" game where jurors are supposed to supply the missing pieces by guessing what someone intended. Their job is not to take alternate theories and choose which makes the most sense.

A reasonable doubt can arise from a number of things. It can arise from the evidence presented or the lack of evidence presented. It can arise from the government’s failure to present evidence the jury would expect to have been presented. It can arise from the absence of evidence corroborating the testimony of a damaging witness. And these are just a few examples. If jurors are left with uncertainty, if they feel there are unanswered questions that keep them from feeling confident about what happened, they must find Edwards not guilty. It is not Mr. Edwards’ responsibility to provide answers to any questions they have about the what happened. It was the Government's responsibility.

If jurors wanted to hear from a witness who was discussed at trial but did not testify, like Rielle Hunter, Bunny Mellon or Lisa Blue Baron, it can’t look to Edwards, it must look to the Government.

I don't see what John Edwards has to gain by testifying. This jury isn't being asked to find beyond a reasonable doubt that John Edwards lied to the media, the public, his wife, his staff or Andrew Young. Or that he had flights of fancy and wanted to be vice-president or attorney general. He's not charged with lying about having an affair or with adultery or being a bad husband, fathering a child out of wedlock or having delusions about his political future.

He's charged with accepting campaign contributions above the lawful limit while he was running for President, and with not disclosing the contributions to his campaign for inclusion on its finance report. The law is very technical on when expenditures by third parties on behalf of a candidate are treated as campaign contributions. He's also charged with conspiracy. The conspiracy charge alleges he entered an unlawful agreement with others to accept illegal campaign contributions above the lawful limit and not disclose them to his campaign. It doesn't charge conspiracy to hide his affair, which is not a crime.

The jury has to decide first and foremost if the Government proved, beyond a reasonable doubt, that the moneys Edwards accepted were in fact campaign contributions as defined by statute. Assuming it finds they were, it then has to decide whether Edwards accepted them willfully, meaning he knew they were illegal campaign contributions and intended to violate the law by accepting them.

If the funds provided by Baron and Mellon weren't campaign contributions, Edwards didn't break any law in accepting them or in failing to disclose them -- and he didn't conspire to to do these things.

If the jury finds they were campaign contributions, that's still not enough to find him guilty. The jury must decide whether the Government presented sufficient evidence to prove beyond a reasonable doubt Edwards knew the funds were campaign contributions under the statute and accepted them intending to violate the law.

The Government presented no evidence that John Edwards knew the monies were campaign contributions under the statute. All of its witnesses that addressed this, including Andrew Young and his wife, testified Edwards assured them the money was not a campaign contribution and its acceptance was lawful. Andrew Young even wrote that in his book. That he later came to believe they might be campaign contributions, long after the alleged crime, is of not import. It's what he knew at the time the Government alleges the offense was committed. That time period, at least as to the four counts charging illegal acceptance of contributions, is while he was running for President.

John Edwards lawyers will speak for him during closing arguments, and give the jury all the reasons to find doubt in the Government's case. They will make sure the jury understands that while Edwards maintains he did not do what he is accused of, they need not believe in his innocence to find him not guilty. There is no reason for Edwards to testify and take on a burden of establishing his innocence.

The judge will instruct the jury that it may not even consider Edwards' decision not to testify when deciding the case. This is because in our legal system, the only burden is with the Government. The presumption of innocence remains with John Edwards throughout the trial, until and unless the jury finds him guilty. Defendants don't have to take the stand just to assert their innocence. They have no duty to explain why someone would make up a lie about them. Edwards' has made the statement he is innocent just by his decision to fight the charges.

Edwards, like every defendant, has the constitutional right to sit back and make the Government prove its case against him. He can call witnesses, he can testify if he chooses, or he can do nothing.

The 4th Circuit, which includes North Carolina federal courts, is one of two federal circuits where the judge does not givee the jury a definition of reasonable doubt. (A judge in the 4th Circuit has discretion to give such an instruction if the jury asks for it.) The rationale, which I strongly disagree with, is that the meaning of reasonable doubt is self-evident, universally known and nearly impossible to define. Be that as it may, the defense still gets to present to the jury in closing all the reasons for doubt that exist in the Government's case. A juror only needs one reason to doubt, and it doesn't have to be the same reason as any other juror.

In this case, one juror's doubt might be based on the credibility a Government witness. The jury will get a lengthy instruction on how to evaluate credibility. It will get an instruction on treating the testimony of cooperating witnesses who get a deal in exchange for their testimony with greater caution than ordinary witnesses. It will be told that if they think a witness lied as to any one matter, they are free to disregard his entire testimony.

Edwards' doesn't need to testify to show a reasonable doubt in the testimony of Andrew Young. His lawyers can do that by telling the jury that reasonable doubt walked right in front of them, took the witness stand, raised his right hand and said "My name is Andrew Young."

Another juror may have a doubt on whether venue has been proven (even by the lesser preponderance standard that applies to venue.) Another may have a doubt as to whether the Government proved the monies from Mellon and Baron were campaign contributions under the statute. Another might be uncertain as to Edwards' knowledge and intent. Since it's the Government's burden to prove both, any uncertainty must be resolved in Edwards' favor.

John Edwards has already raised more than a dozen reasons for reasonable doubt in pre-trial motions. I summarized them here.

I can't see any good reason for John Edwards to take the stand. He has zero burden to convince this jury of anything. It would be a violation of a juror's oath to infer anything from his decision not to testify. All his lawyers need to do (and it's their job, not his) is provide the jury with reasons to doubt.

Even as a civil lawyer, John Edwards knows the pitfalls of having a client testify when there is evidence before the jury that the client lied about anything. He also must know that our prisons are filled with people who thought if they could only tell their side of the story, a judge or jury would see it their way.

Whether Edwards should testify is a matter open to debate. But the arguments should not be framed in terms of a need for him to convince the jury of anything. That's just propagating an idea that is contrary to our laws and our constitution, and the principles they were founded on.

The defense does make a good argument that the Government's version of instructions include reminders that it doesn't have to prove the case beyond all doubt. Why should the Government get to say what reasonable doubt is not, if it's self-evident? The Court shouldn't instruct on what it isn't unless it's also instructing on what it is.

Also, one argument I would have made is that since venue has to only be proven by a preponderance of the evidence, and everything else by beyond a reasonable doubt, the lack of definition doesn't provide the jury with any basis to differentiate. If both standards are applicable somewhere in the case, it seems to me both should be defined.

The new pleading also takes issue with the Government's phrasing as to wilfulness and knowingly, and of course, its instructions on what constitutes a campaign contribution. The Court really should have decided these matters before trial. They were raised, and it seems unfair to make either party proceed in the dark, not knowing what they have to prove or defend. If Edwards is right that expenditures for Hunter and Young are not his personal expenses, a lot of prejudicial testimony on intent, which came in as hearsay, could have been avoided.

Lastly, as an example of how reasonable doubt is not self-evident, consider the Scooter Libby trial which took place in the District of Columbia. Here's the reasonable doubt instruction the jury was given.

Yet, even having been instructed on reasonable doubt, the jury sent the Court this question during deliberations:

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.

Supreme Court Justice Ginsberg wrote in her concurring opinion in Victor v. Nebraska in 1994:

But we have never held that the concept of reasonable doubt is undefinable, or that trial courts should not, as a matter of course, provide a definition. Nor, contrary to the Court's suggestion, see ante, at 1, have we ever held that the Constitution does not require trial courts to define reasonable doubt.

...Whether or not the Constitution so requires, however, the argument for defining the concept is strong. While judges and lawyers are familiar with the reasonable doubt standard, the words "beyond a reasonable doubt" are not self defining for jurors. Several studies of jury behavior have concluded that "jurors are often confused about the meaning of reasonable doubt," when that term is left undefined.

...Thus, even if definitions of reasonable doubt are necessarily imperfect, the alternative--refusing to define the concept at all--is not obviously preferable.

Still, the rule in the 4th Circuit as stated in U.S. v. Oriakhi

It is well settled in this circuit that a district court should not attempt to define the term “reasonable doubt” in a jury instruction absent a specific request for such a definition from the jury....   We have repeatedly concluded that the words “beyond a reasonable doubt” have the meaning generally understood for them and that further efforts to restate their meaning with different words tend either to alter or to obfuscate that meaning. ...  See also Victor v. Nebraska, 511 U.S. 1, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (“the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.”).

We have held that it is improper for a district court to define reasonable doubt for a jury unless the jury itself requests a definition.  

And in 2011, relying on Oriakhi and other cases, a district court in the 4th circuit has said:

Precedent could scarcely be more clear. Defendant] was not entitled to a jury instruction as to reasonable doubt.

As I said, I think it's a bad rule. I wonder if the defense can argue to the jury, in the absence of an instruction defining reasonable doubt, that a reasonable doubt is just what it says: any doubt a juror has that he or she can give a reason for.

The defense objected to several other instructions, this post is already way too long so I won't detail them here. ]]> Jeralyn 2012-05-13T19:52:31-05:00 http://www.talkleft.com/story/2012/5/13/41425/1167

There's something so universal about Mother's Day. Everyone on this planet at one time had a mother. Many still do, many are mothers, many are married to mothers and many aspire to be mothers.

One of Denver's early public defenders, now deceased, used to say about his clients who had done terrible things: "There's something good to say about every one, even if it's only that their mother loved them." [More...]

In my case, who knew this little guy

Would grow up so soon and make me so proud?

To all you mothers out there, Happy Mother's Day. If your mom is still around, be thankful, and don't forget to call her. Even if she's not, you can still take out a photo or look up at the sky and tell her hello. Wherever she is, she's probably thinking of you too.

What do you have planned today? This is an open thread, all topics welcome. ]]> Jeralyn 2012-05-13T10:14:00-05:00 http://www.talkleft.com/story/2012/5/13/15349/6097

John Edwards will begin presenting his defense Monday. The Court has published the list of witnesses for the day, in no particular order. They include:

• Scott Thomas (Former FEC Commissioner and proposed expert witness)
• Lora Haggard: One of his campaign's finance officers from Georgia and Treasurer for the Center for Promise and Opportunity Foundation (to which Bunny Mellon contributed millions before even met Rielle Hunter).
• Tim Reilly
• Scott McLean: Builder of Andrew Young's House
  Harrison Hickman: Friend and Adviser to Edwards, a pollster from MD
• Robert Lester
• Wade Smith: Edwards' lawyer who had discussions with Mellon's lawyer Alexander Forger

Where is Rielle Hunter these days? Out and about with daughter Frances Quinn.[More...]

Edwards' full list of potential witnesses, filed a few weeks before trial, is here.

Edwards' daughter Cate is on the list, as is Lisa Blue Baron, Fred Baron's widow, but there's no indication yet as to whether either will be called. I think the Government is assuming Cate will be called, and that's the reason it filed a jury instruction on "sympathy" a few days ago.

It's not clear if the Judge finally agreed to allow Edwards' expert witness testify or whether the Government and Edwards reached an agreement on his testimony -- or whether they will fight about it Monday morning. While I can't find any court ruling on the Government's objection, Edwards did pare down his proposed expert witness instruction last week. It could be the Government and Edwards reached an agreement limiting the scope of the expert's testimony.

Edwards wants his expert to testify that a reasonable person who was a candidate in 2007 and 2008 would not have known that the expenditure by one third-party to cover the expenses of another third-party would have either been considered a campaign contribution or the payment of the candidate’s own personal expenses. That would be consistent with Edwards' good faith defense and negate that his conduct was "willful." From Edwards' proposed jury instructions (May 7 version:)

One factor for you to consider in deciding whether Mr. Edwards "knowingly and willfully" broke the law is whether the requirements of the law were vague or highly debatable. The more uncertain or debatable a law may be, the more difficult it may be to know whether certain conduct may violate the law. Sometimes the applicability of a law may be very clear in some instances, but not in others.

Here, for example, everyone agrees that a check written by Ms. Mellon or Mr. Baron to the John Edwards for President campaign during the election cycle would have been a campaign contribution. But Mr. Edwards argues that it was uncertain Ms. Mellon and Mr. Baron to persons other than Mr. Edwards or his campaign to cover the expenses of Ms. Hunter and the Youngs during Ms. Hunter's pregnancy would be considered campaign contributions to Mr. Edwards' campaign.

If the law is so uncertain or highly debatable that reasonable persons could disagree as to whether those payment would be regulated as a campaign contribution, then Mr. Edwards could not knowingly and willfully violate the law by accepting or failing to report such a payment as a campaign contribution and you must find him "Not Guilty."

I wonder if John Edwards is feeling confident today, or whether he's sorry he turned down the Government's reported pre-indictment offer to plead to a felony with no jail time or a misdemeanor and six months. I can't imagine he had any idea during pre-indictment negotiations that the court would allow so much damaging testimony about the personal details of his marriage and affair, under the theory it was evidence of his state of mind and intent.

And what if he is convicted, but wins on appeal, with the appeals court ruling the judge erred in allowing the testimony? It's already been spread globally. The damage will never be repaired.

The Judge in the John Edwards trial heard two hours of argument today on the defense motion for judgment of acquittal and denied the motion.

She ruled there was enough evidence to let the case be decided by the jury. She did express reservations about whether the Government had proved venue in Middle District of North Carolina.

If the defense chooses to present witnesses, it will do so beginning Monday. As I wrote last night, the Government is now seeking a jury instruction on "Sympathy" which leads me to believe it is concerned the defense will present at least one witness whose testimony might evoke sympathy for John Edwards. I can't think of anyone other than Cate Edwards who might fit in that category.

CNN Legal Analyst Mark NeJame steps up his role as investigative journalist in the George Zimmerman case. Last night on Piers Morgan's show, he revealed the above photo of Zimmerman's multi-racial family, including his black great-grandfather and Peruvian grandmother and mother.

He received the photo from the Zimmerman family.(Background here.)

Mark's comments: He may have been skeptical at first but this photo changed his mind. He does not think Zimmerman was motivated by race in what whatever encounter he had with Trayvon Martin on Feb. 26.

This thread is devoted to all things Zimmerman-related.

Right before the Government rested today, it was allowed to play the entire 2008 interview John Edwards gave to 20/20, in which he acknowledged having a brief affair with Rielle Hunter that had ended a long time ago, and in which he said Elizabeth knew all about it. Also in the interview, Edwards said:

"I have never asked anybody to pay a dime of money. Never been told that any money has been paid. Nothing has been done at my request."

Even if all three of those statements were a lie, John Edwards would be not guilty if the funds provided by Baron and Mellon were not "campaign contributions" as defined by the federal campaign finance statutes. [More..]

I'm not sure why the Government was allowed to play the entire interview for the jury. Since John Edwards has not testified, the tape wasn't admitted as impeachment evidence. He has not admitted any criminal conduct. His state of mind at the time of the interview in August, 2008 may or may not reflect his state of mind in in 2007 and early 2008. Nor were his statements in the interview contradictory to his defense. His defense is that the monies Fred Baron and Bunny Mellon provided were not campaign contributions because they weren't for the purpose of influencing the election, were not for paying his personal expenses, and as to some counts, were not received while he was a candidate for federal office, but after he ceased to be a candidate.

According to Edwards, the monies were not intended to influence the election, but to hide Hunter from the media so his cancer-stricken wife wouldn't learn the truth and leave him. It's not that Elizabeth didn't know he had an affair. It's that he lied to her about the extent of it. If Elizabeth knew he had lied when he told her he only had a brief fling with Hunter that ended a long time ago, and when he told her that Andrew Young was the father of Hunter's baby, she would be devastated and his marriage would be over.

Since his goal was to save his marriage and spare his wife and family more trauma, of course he's going to tell the same story to 20/20 he told to his wife. The interview, like the monies from Baron and Mellon, was intended to save his marriage and spare his wife additional pain.

Edwards could have fully known about and orchestrated the contributions from Baron and Mellon, and it wouldn't be a crime if the monies are not campaign contributions as defined by the statute.

To me, this highlights a major problem with the way the Judge conducted this trial. Rather than ruling on critical issues the defense raised in pre-trial motions, she deferred ruling until trial, saying "let's wait and see what the evidence shows at trial." She in essence, kicked the can down the road.

She still hasn't ruled on the most critical issues. How will she define a campaign contribution, a personal expense and a candidate for office to the jury? No one knows yet. And yet, prejudicial evidence such as the 20/20 interview showing Edwards lied to his wife and the country about his affair and paternity, humiliating private details of marital discord and his wife's anguish during her final days, and witness statements as to Edwards', Baron's and Mellon's state of mind over a period of years, including long after the contributions, have been admitted into evidence for consideration by the jury, in support the Government's theory that the funds from Baron and Mellon were campaign contributions; that Edwards knew they were campaign contributions; and that Edwards knew he was violating the law in accepting them and not disclosing them to his campaign, despite his knowledge the campaign was obligated to report them.

What if the Judge rules in Edwards' favor on some but not all of his arguments, either in deciding his motion for judgment of acquittal or in jury instructions? How does the jury disregard the overwhelming amount of prejudicial testimony and evidence that came in because it supported Government theories the court has finally determined to be invalid?

Edwards' arguments, as I read them, include:

1. Monies provided by donors are not campaign contributions unless they were given while Edwards was a candidate for federal office, were unambiguously related to his campaign, were intended to influence the election. and would not have been given had he not been running for office.

2. Edwards ceased being a candidate on January 30, 2008, when he suspended his campaign.

3. Money spent to promote consideration of Edwards for vice president or attorney general is not charged in the indictment and cannot be the basis for finding those expenditures to be campaign contributions. Such expenditures cannot be the basis for guilt under the federal election laws because Edwards was only a candidate for President.

4. Money provided to a candidate becomes a contribution on the date it is accepted and deposited by the candidate (not the date the donor writes the check)

5. In order for donated money to be considered a personal use expense, the money must be for the candidate's personal use, not for the use of a third party. Money is not considered a personal use expense of the candidate when it is provided by a third-party to another third-party for that third-party's (or another's) expenses; the money did not go to the campaign; did not go to the candidate; and was neither spent by the campaign nor the candidate. The personal use expense regulation only applies to the candidate's personal use expenses. It does not apply to the payment of other people's expenses, even if the candidate encourages third-parties to pay the personal expenses of other people.

A "personal use" expense is "any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign or individual's duties as a holder of Federal office". Examples: a mortgage or utility bill. Edwards was not legally obligated to support Rielle Hunter. thus, money used to support her or Andrew Young were not expenses he would be obligated to pay irrespective of the campaign and do not fall under the "personal use" expense section of the law.

Since monies provided by Mellon and Baron were not used to satisfy a financial obligation Edwards would have been obligated to pay even if he had not been a candidate for federal office, he can't be found guilty under this theory.

6. The monies had to be unambiguously connected to the campaign and susceptible of no other reasonable interpretation.

7. Fred Baron's monies can't support a guilty verdict on counts 4 and 5 because the government failed to establish venue in the Middle District of North Carolina on these counts. The counts allege Baron paid for: a charter flight to Aspen, Colorado; another from . Aspen to San Diego; a hotel in San Diego and airfare from San Diego back to Aspen, and then to Santa Barbara, CA; and a hotel in Santa Barbara.

The Government can't rely on "accessorial" acts for venue on these counts because the charged crime, acceptance of an illegal campaign contribution, is not a continuing offense and John Edwards can't be anything other than the principal on these counts. (The crime charged in these counts is a status crime -- acceptance of money by a candidate). That the monies can be aggregated for a year only relates to punishment (a felony vs. a misdemeanor), it is still a single offense.

Venue is improper on all the Mellon and Baron counts (2 through 5)if the money was not received (deposited) in the Middle District of North Carolina.

8. The count charging Edwards with illegal acceptance of money from Mellon in 2008 is invalid because her 2008 funds were received (deposited)after he withdrew from the race. Once Edwards suspended his campaign, he was no longer a candidate for President or federal office. Receiving money after he was no longer a candidate could not influence the outcome of the election.

9. Since the charged crime is illegal acceptance of a campaign contribution, the intent of the donor is not the determinative issue. The intent of the donor would be relevant if the donor were charged with making an illegal contribution, or Edwards was charged with aiding and abetting the donor's making of an illegal contribution.

10. There can be no aiding and abetting liability on the four counts charging acceptance of illegal contributions from Mellon and Baron (Counts 2-5)because Edwards can't be anything other than the principal on the crime of accepting an illegal campaign contribution. While Andrew Young could aid and abet Edwards, Edwards can't aid and abet himself. (The crime charged in these counts is a status crime -- acceptance of money by a candidate).

11. The campaign finance violations alleged in Counts 2-5 and the making of a false statement to the government charged in Count 6 all require that Edwards violated the law "knowingly and willfully." Proving that Edwards violated the campaign finance laws or caused someone to make a false statement to the government is not sufficient to convict him unless he violated the law "knowingly and willfully." That means Edwards had to known his actions were prohibited by law and he acted with the purpose of violating the law, and not by mistake or accident or in good faith.

A factor in determining willfulness is whether the requirements of the law were vague or highly debatable. If the law is so uncertain or highly debatable that reasonable persons could disagree as to whether those payments would be regulated as a campaign contribution, then Edwards could not knowingly and willfully violate the law by accepting or failing to report such payments as campaign contributions. Edwards' proposed expert witnesses would testify to the uncertain state of the law, and that a reasonable person in Edwards' situation in 2007-2008 would not have known accepting the funds violated campaign finance laws.

12. Edwards is not legally responsible for the acts of Andrew Young on an agency theory unless Young was specifically instructed and authorized to perform the acts in Mr. Edwards’ name, and Young did not exceed the authority that he was given.

Edwards could not "knowingly and willfully" cause Andrew Young to commit a crime, if he did not know that Young would be committing a crime by doing what Edwards authorized him to do on his behalf. If Edwards believed in good faith that Young was not committing a crime by doing what he asked Young to do, Edwards can't be found guilty on an agency theory.

13. The federal government can not dictate to a candidate how much of his own money he can spend on his own campaign. Nor can it tell other individuals how much money they can spend advocating on behalf of a candidate, so long as that spending is not coordinated with the candidate or his campaign.

Because of the First Amendment, campaign finance laws may constitutionally regulate only those actions that are unambiguously related to the campaign of a particular candidate. In this case, for Mellon and Baron's funds to be campaign contributions, the funds had to be unambiguously related to his campaign to become President. If Mellon or Baron would have made the payments for a reason that is not campaign-related, such as preventing Elizabeth Edwards from being hurt or helping Rielle Hunter through her pregnancy, the payments are not subject to the campaign finance laws and Edwards cannot not be convicted either for accepting the payments or for failing to report the payments to the Federal Election Commission.

14. There is a substantial variance between the single conspiracy alleged in the indictment and the evidence of apparent multiple conspiracies at trial. The indictment charges that Edwards was part of one single conspiracy to commit the crimes of accepting and receiving illegal campaign contributions or causing false campaign finance reports to be filed with the Federal Election Commission.

The Government's evidence at trial showed two or more separate conspiracies, one involving alleged campaign contributions from Mellon and the other involving alleged campaign contributions from Baron. Mellon and Baron did not conspire to assist Edwards in accepting each other's campaign contributions or in causing the other's alleged campaign contributions to be falsely reported to the Federal Election Commission.

The government failed to prove that there was a single conspiracy involving campaign contributions from both Mellon and Baron, thus Edwards cannot be guilty of the conspiracy charge. Proof that Edwards was a member of two different conspiracies, or some conspiracy other than the single conspiracy charged in the indictment is not enough to convict.

Aiding and abetting does not apply to the conspiracy charge. The Government must prove Edwards personally joined the single charged conspiracy.

(Again, this is my interpretation of Edwards' arguments based on the pleadings and transcripts of pre-trial motions hearings -- it is not a list compiled by Edwards' lawyers.)

*****

You can't unring a bell or put toothpaste back in the tube. So much prejudicial, hearsay evidence came in during the Government's case, under the guise of being relevant to Edwards and others' state of mind on various counts, that unless the Court accepts all Edwards' arguments and dismisses all the charges (unlikely in my view), a ruling dismissing just some of the counts won't cure the prejudicial spillover effect on the jury of evidence that came in to support the dismissed counts. Limiting instructions are insufficient to undo the damage. But firm rulings by the judge prior to trial, especially on the requirements of the campaign finance laws, could have prevented a lot of it.

Even if the judge denies all the defense requests, the Government has a problem. It didn't prove willfulness -- that Edwards knew the donations were illegal contributions and had to be reported, and that he accepted the payments and failed to report them knowing he was doing so in violation of the law. None of the lies John Edwards told his staff, his wife, Andrew Young, Hunter or the media, and none of the testimony about his political aspirations after his campaign ended, fill that void. The danger is that the jury might find otherwise.

Update: The defense did not file any pleadings tonight. But the Government filed a new set of proposed jury instructions and a brief in support of them. There are three noticeable differences from its earlier submission. The first eliminates the reference to a candidate seeking election as Vice President from the definition of "a candidate for federal office." If this means it will no longer argue that Edwards' interest in becoming Obama's running mate affects whether the donations were campaign contributions, it seems to me there was no valid reason for admitting that testimony today.

Second, the government makes a new argument, based on a racketeering case and campaign finance regulations, that the donations did not have to be for the sole purpose of influencing a federal election. It asserts that if there were multiple purposes for the donations, so long as one was to influence the election, the money can still be a campaign contribution.

Because people rarely act with a single purpose in mind, it is not necessary that you find that a gift, purchase, or payment was made solely for the purpose of influencing a federal election. It is sufficient under the law if you find that the gift, purchase, or payment was made for, among other purposes, the purpose of influencing any election for federal office.

It is for you alone to decide whether the government has proven that the defendant is guilty of the crimes charged solely on the basis of the evidence and subject to the law as I instruct you. It must be clear to you that once you let fear or prejudice, or bias or sympathy interfere with your thinking, there is a risk that you will not arrive at a true and just verdict.

...if you should find that the government has met its burden of proving a defendant's guilt beyond a reasonable doubt, you should not hesitate because of sympathy or any other reason to render a verdict of guilty.

Since the Government's witnesses did not portray John Edwards in anything coming close to a sympathetic light, I assume its new-found concern is based on the anticipated testimony from defense witnesses. What defense witness could evoke sympathy from the jury for John Edwards? The only one I can think of is daughter Cate Edwards. (Since she was excluded from the Court's sequestration order, she could be called.) ]]> Jeralyn 2012-05-10T23:30:08-05:00 http://www.talkleft.com/story/2012/5/10/15034/9401 Your turn. All topics welcome.

The Justice Department's December, 2011 report finding systemic profiling is here.