John Edwards Files Motion to Strike Portions of Cheri Young's Testimony

As John Edwards attorneys challenged Cheri Young's memory and version of events at trial today, including questioning her about Andrew Young's memory issues due to use of alcohol and Ambien, they also filed a motion to strike some of the testimony she gave yesterday. Alternatively, they are asking the Court to give the jury a limiting instruction as to the purposes for which it can her statements. The motion is available on PACER.

Of particular concern to the defense is Mrs. Young's testimony corroborating what her husband told her about whose idea it was for Young to claim he was the father of Rielle Hunter's child back in December, 2007. [More...]

Mr. Edwards moves the Court to strike any such hearsay statements by Mrs. Young, and to provide the jury a curative instruction to disregard that testimony in its entirety. If the Court denies that request and finds that Mrs. Young’s testimony was properly allowed, Mr. Edwards requests the following limiting instruction to the jury:

You will recall that Mr. Young testified about a number of conversations he had with other people, and that he was confronted with statements he had made that were different from what he said in court. Yesterday, Mrs. Young testified about conversations she had with Mr. Young, her husband, in which Mr. Young told her about conversations he had with other people. As to any of these occasions, to the extent Mrs. Young’s testimony about what Mr. Young told her is consistent with Mr. Young’s own testimony about his conversations with other people, you may consider it in determining how truthful Mr. Young’s testimony was.

While you may consider this evidence and give such weight to the statement as you think it deserves, please do so with caution. Ms. Young testified only to what she was told by Mr. Young, not what she knows independently of what Mr. Young told her to be true.

Team Edwards had previously moved to exclude Mrs. Young's hearsay statements about what her husband had told her about Edwards' asking him to claim paternity. The judge allowed it on the grounds that Team Edwards had impeached Andrew Young on this issue, and therefore Cheri Young's testimony was admissible as a prior consistent statement of Andrew Young under Federal Rule of Evidence 801(d)(1)(B). The Court invited Team Edwards to draft a limiting instruction on the purposes for which her testimony could be considered.

In researching the issue last night, Team Edwards says it became clear to them Cheri Young's testimony exceeded the permissible scope of the rule on prior inconsistent statements because:

(1) the statements by Mr. Young that Mrs. Young is supposedly corroborating were made after Mr. Young had a motive to fabricate; and (2) the statements offered by Mrs. Young went well beyond the topics on which Mr. Young was impeached on cross-examination.

On the second issue, Team Edwards argues:

In other words, if the declarant is impeached on cross-examination about a particular statement, another witness can only corroborate the declarant with out-of-court hearsay that is consistent with that particular statement. She cannot expound on the statement, or offer other out- of- court statements, and claim that they are somehow corroborative of the declarant’s in court testimony. Such testimony would not be for a rebuttal purpose and would extend the rule far beyond the clear limits expressed by the Supreme Court.

Among the examples of statements it says were improperly admitted, was Mrs. Young's corroboration of her husband's version of his conversation with John Edwards at a "PetSmart" store on December 13, 2007. Andrew Young testified while he and his wife were shopping at PetSmart, Edwards called and asked him to claim paternity of Rielle Hunter's child. Young said he left the store and talked to Edwards in his car and then told his wife when he went back inside the store .

After testifying that this was the first time that he and Mr. Edwards discussed the idea of Mr. Young claiming paternity, Mr. Young stated that, “Mr. Edwards said, Let’s give them a story that they will understand, an affair between two staffers. They don’t give a sh*t about you. They want me.”

Young testified he knew the date of the conversation because there was a copy of Newsweek next to him with Edwards on the cover. During cross-examination, Abbe Lowell brought out that Newsweek didn’t publish that particular issue until two weeks later. It didn't even go to the printer, according to Newsweek, until December 15.

But, Team Edwards says in today’s motion, Cheri Young not only testified to the PetSmart conversation, she testified about conversations she and her husband had after leaving PetSmart, which Andrew Young never mentioned during his testimony.

One reason the alleged December 13 conversation is important: It was on December 12, 2007 that the Enquirer photographed a very pregnant Rielle Hunter leaving her obstetrician's office. This prompted panic, according to the Government, which has listed as exhibits and introduced into evidence numerous voicemails and e-mails, as well as Andrew Young's telephone records, for the period of December 12 through 20. The Government wants to show the multiple communications between Young and Rielle Hunter, Young and Fred Baron, and Young and John Edwards on this issue.

The Youngs’ version of how Young came to claim paternity of Hunter’s child is far different from that of John Edwards and Rielle Hunter. But all agree it began with the Enquirer’s taking the photo of the pregnant Rielle on December 12 as she left her doctor’s office.

In the days between when the photo was taken and published a week later, and in anticipation of its publication, Andrew Young claims John Edwards hatched the plan for him to claim paternity and made the request during the December 13 call he received while shopping at Petsmart.

Young wrote in his book that it was Fred Baron who referred him to a lawyer, Pamela Marple, to help him draft a statement claiming paternity. Hunter, through her lawyer, prepared a similar statement, saying Andrew Young was the father. The New York Times reported Fred Baron first denied, then said it was possible, that he hooked not only Andrew, but Rielle, up with lawyers to respond to the Enquirer’s anticipated publication of its photo of the pregnant Rielle.

On December 19, 2007, the Enquirer published the photo and attorney Marple issued Young’s statement. It read:

"As confirmed by Ms. Hunter, Andrew Young is the father of her unborn child. Senator Edwards knew nothing about the relationship between these former co-workers, which began when they worked together in 2006. As a private citizen who no longer works for the campaign, Mr. Young asks that the media respect his privacy while he works to make amends with his family."

It was then that the Youngs and Rielle Hunter began their cross-country odyssey, funded by Fred Baron, which included the rental of a very expensive house in Santa Barbara.

One of the issues in the case is whether John Edwards knew of Baron's funding at the time, and even if he did, whether it legally constituted a campaign contribution.

Team Edwards insists it was Andrew Young's idea for him to claim paternity. Rielle Hunter, who is expected to testify, has also said it was Andrew Young's idea and he volunteered. From her GQ interview with Lisa DiPaulo, who is on the defense witness list:

How did the whole plan go down for Andrew to claim paternity?

It was Andrew's idea. The first time Andrew said it, I was on the phone with Johnny, and Johnny was screaming at me about the National Enquirer finding me and photographing me. He was very angry. And Johnny doesn't scream. He's not a screamer. But he was screaming at me that day, and Andrew suggested, right then and there, "Hey, tell him that I'll claim I'm the father."

You heard him say that?

Yes. I was on the phone with Johnny. Andrew was sitting next to me. Not on the phone. But offering the idea as I was talking. He said, "Tell him I can always claim that I'm the father." And it was so crazy I just discounted it and didn't even repeat it to Johnny. I looked at Andrew like, "Are you out of your mind?" and then the next I remember or hear was that Andrew had offered that to Johnny and Johnny had thought that that may be a way to go.

I think Johnny's initial reaction was that it was a bit crazy, but, you know, maybe. And I just thought it was insane. And I thought for sure Cheri would never go along with it and Cheri would be the out. And Cheri went along with it....

On January 28, 2008, Edwards suspended his campaign and a month later Rielle gave birth to her and John Edwards' daughter.

As to the argument that Cheri Young should not have been allowed to testify to her husband's statements becuause they were made after Andrew Young had a motive to fabricate, Team Edwards says in its motion:

The first check written by Mrs. Rachel Mellon and deposited by the Youngs into their personal bank account was dated June 7, 2007. Andrew Young necessarily talked to Mrs. Mellon about needing the checks prior to that time. As of that time at least, Andrew Young’s hands were dirty and he had a motive to fabricate to support his story and his efforts to take money from Mrs. Mellon. So, any statements by Mr. Young after that time cannot be admitted under Rule 801(d)(1)(B) as prior consistent statements. They are inherently unreliable, as they were made by Mr. Young to further his scheme, after he had a clear motive to fabricate.

In addition to objecting to Cheri Young's testimony regarding her husband's December 13th statements at PetSmart and in follow-up conversations regarding paternity, Team Edwards also objects to her corroborating testimony regarding his March 2008 meeting with Fred Baron, and the River Inn conversation on June 18, 2007.

What about Andrew Young's memory issues related to his drinking and Ambien use? Cheri Young said he had a problem in 2006 and 2007. But in 2010, Young testified under oath in the state civil case that he had a memory lapse from drinking in 2009. He was testifying to avoid a jail sentence for being in contempt of court, due to a false statement on an earlier affidavit, in which he failed to mention having shown the Edwards-Hunter sex tape to Robert Draper in 2009. Young blamed his lapse on drinking too much :

Challenged as to why he failed to disclose the screening with Draper, Young said he had no recollection of the event and that, in the past, he often drank too much.

"Whether it's the wine or the time, I have no recollection of that," Young said. "I'm not denying it happened; I just don't remember it."

The Youngs were not sent to jail but the judge lambasted Andrew Young in his remarks. The Judge in the Edwards trial has said Young can be questioned about the contempt proceedings, but the Judge's comments may not be introduced. Robert Draper is on the defense witness list

Cheri Young, in her trial testimony today, portrayed Rielle Hunter as a new age nut, referencing her spiritual adviser in Santa Barbara at the time, Bob McGovern. (Background here.)

Neither side has McGovern on its witness list, which is kind of curious, because according to John Edwards, in an interview with Nightline, it was McGovern who asked Edwards to come to the Beverly Hilton and meet Rielle in July, 2008, where he was photographed holding the baby (whose paternity he had yet to acknowledge.) Edwards said McGovern was present during that meeting. In the Nightline interview, he claimed the photo was doctored, and absolutely denied being the baby’s father. As to whether the meeting involved paying "hush money" Edwards said:

I've never paid a dime of money to any of the people that are involved. I've never asked anybody to pay a dime of money, never been told that any money's been paid. Nothing has been done at my request. So if the allegation is that somehow I participated in the payment of money -- that is a lie. An absolute lie, which is typical of these types of publications.

McGovern was around Rielle from December, 2007 for months. He had direct conversations with Edwards. If there is a discrepancy between Andrew Young's version and Edwards' and Rielle Hunters' version as to the false paternity claim and payments made afterward while she was in Santa Barbara , wouldn’t he be a better witness than Cheri Young, who has no first-hand knowledge, and only knows what her husband told her? I can understand why Team Edwards wouldn’t want to call McGovern, but I wonder why the Government isn't calling him as a witness. Maybe his testimony hurts, rather than helps its case. Or maybe he really didn't have any relevant knowledge. (Added: A TalkLeft reader e-mailed me to let me know Bob McGovern died in 2011. R.I.P.)

If Rielle Hunter’s recollection of how the paternity claim came about is accurate – that Young volunteered – would he have admitted it to his wife? Or would he have waited for an opportune moment, such as receiving a call from Edwards while shopping at Petsmart, to tell her and spin it as yet another request by John Edwards?

The Edwards camp knew it was going to face questions about Rielle’s baby at some point. Was the plan for Andrew to claim paternity really not hatched until December 12 or 13? Or was it planned by Baron and Young beforehand with Young being promised substantial compensation in exchange? Another witness expected to testify at the trial, listed by both sides, is Nick Baldick. The AP reported in 2011:

A person involved in the investigation and who is familiar with the financial transactions told AP that Baldick provided Young about a $30,000 raise to move off the Edwards campaign payroll onto one of Baldick's private organizations around the time Young began taking care of a pregnant Hunter in fall 2007, when the primary campaign was heating up. Young also got more than $150,000 as commission for money he raised for Alliance for a New America. A month after Young got his last campaign paycheck on Nov. 14, 2007, he publicly claimed paternity of Hunter's child.

I wonder at this point whether either side will even call Rielle Hunter. It’s hard to say who she would damage more. Andrew and Cheri Young don’t seem to be making the Government’s case very well. They ought to restrategize and focus on the legal issues: Whether the payments were campaign contributions, whether John Edwards knew it, and if so, whether he violated his known duty to report them.

Some Documents Referenced Here:

< Zimmerman's Lawyer Explains Limits of Social Media Presence | Tuesday Night Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Agree with (5.00 / 2) (#1)
    by bmaz on Tue May 01, 2012 at 08:05:01 PM EST
    ....the last paragraph.  In fact, as I was reading this, I was thinking whether going through this motion is even productive for Edwards. I think I would just let the Youngs babble, impeach the crap out of them and then tell the jury that they are scummy liars and, more importantly, they have done nothing to meet the critical elements of the charges as far as intent.  The limiting instruction is almost superfluous.

    yes, and they also have (none / 0) (#4)
    by Jeralyn on Tue May 01, 2012 at 08:37:07 PM EST
    the opportunity to argue Andrew Young's testimony should be received with great caution because he is getting a benefit from the Government -- immunity from prosecution for his own misdeeds.

    They are also seeking an instruction that says:

    If you find that any witness has willfully testified falsely as to any material matter either before this Court or under oath elsewhere, you have the right to reject the testimony of that witness in its entirety.

    Seems to me Mr. Edwards' attorney (none / 0) (#2)
    by oculus on Tue May 01, 2012 at 08:15:28 PM EST
    didn't do his/her job in Court.  Already had a ruling on in limine motion limiting her testimony.  Why didn't he invoke it?

    No, he did object (none / 0) (#3)
    by Jeralyn on Tue May 01, 2012 at 08:30:55 PM EST
    From his motion:

    Mr. Edwards' counsel objected, citing that such statements called for hearsay and even double hearsay. The Court overruled the objections, stating that the testimony would be allowed because it corroborated the testimony of Mr. Young after he had been impeached. (See Trial Tr., Apr. 30, 2012 at 27 ("[H]er testimony corroborates Mr. Young's testimony, and you all certainly impeached him.").)

    Later the Court also cited to Federal Rule of Evidence 801(d)(1)(B), which provides the definition of when an out-of-court statement is not hearsay because it is a prior consistent statement. (Id. at 78.) Upon further objection by
    Mr. Edwards' counsel and further discussion, the Court stated it would consider a limiting instruction that might address the issue.

    those jury instructions (none / 0) (#5)
    by desmoinesdem on Tue May 01, 2012 at 08:57:12 PM EST
    might confuse a lay person. I had to read them a couple of times.

    Thanks for your coverage of this trial. The more I read, the more clear it seems that there is reasonable doubt about whether a crime was committed.

    How can the defense call Lisa DiPaulo and not Reille Hunter? Isn't DiPaulo's testimony bound to be mostly hearsay (what Hunter told her while being interviewed)?

    I'm not sure they (5.00 / 1) (#6)
    by Jeralyn on Tue May 01, 2012 at 10:01:41 PM EST
    will call DePaulo -- Edwards listed both DePaulo and Rielle Hunter as witnesses but they aren't obligated to call either.  Lots of things can happen during a trial that causes a party not to call a witness on their list.

    When DePaulo did that interview, she spent the night at Hunter's house. (It's in the beginning of the article) Maybe she has more information than was included in the article, besides what Hunter said. Just a guess.

    As for Hunter, Edwards may want to call her to contradict Young's version of how he got the tape. Hunter filed an affidavit in the state case saying   he stole it, it wasn't in the trash and she didn't leave it behind as he has repeatedly said in interviews and in his book.

    Abbe Lowell said yesterday he might want to recall Young to ask about whether he stole the tape. If he does, and Young denies it, I think he would have to put Hunter on the stand to contradict him.


    And here's (none / 0) (#7)
    by Jeralyn on Tue May 01, 2012 at 10:10:33 PM EST
    Andrew Young's affidavit on how he found the tape.

    Funny (none / 0) (#8)
    by jbindc on Wed May 02, 2012 at 09:00:36 AM EST
    On "legal expert" on the news this morning was talking about this case and said that Cheri Young breathed some life into the prosecution's case with her testimony.

    and one reporter who (5.00 / 1) (#9)
    by Jeralyn on Wed May 02, 2012 at 11:21:35 AM EST
    always takes the prosecution side and has been writing pro-Andrew Young articles called her a "steel magnolia." Others say she "broke down".

    She helped John Edwards by saying he thought the campaign contributions were legal. She had little to no first-hand knowledge of the conversations with the donors. She knows what her husband told her.

    And she turned out to be a snoop, with the defense playing a 13 minute video Cheri took of Rielle's possessions long after she moved out, which she claimed she wanted in case no one believed her. Close-ups of her driver's licenses, possessions, etc. Creepy.

    I don't see how she helped or "breathed life" into the Government's case.