Judge declares mistrial in Menendez prosecution


The bribery trial of Sen. Robert Menendez (D-N.J.) ended in a mistrial Thursday after jurors said they were hopelessly deadlocked on corruption charges against the lawmaker and a wealthy Florida eye doctor.

“We cannot reach a unanimous decision,’’ the jury said in a note just before lunch on Thursday. “Nor are we willing to move away from our strong convictions.”

A mistrial is a major victory for a senator who had to fight 18 counts of alleged corruption, and a setback for the Justice Department, whose efforts to combat public corruption have been curtailed by a recent Supreme Court decision.

After receiving Thursday’s note, U.S. District Court Judge William Walls decided to interview the foreman and at least one other juror in chambers, in the presence of the lawyers on the case.

Prosecutors had asked the judge to issue a clarifying instruction to the panel, telling jurors they could reach verdicts on individual counts in the indictment, even if they can’t find agreement on all the counts. Judge Walls rejected that suggestion, saying to do so would be “going down the slippery slope of coercion.’’

He added: “There’s no point doing something just to say you’ve done it.’’

Menendez defense lawyer Abbe Lowell told the judge, “I think we have to declare a mistrial.’’

“They are telling us in the clearest terms possible that they have done their job as diligent jurors. I think we have a real hung jury,’’ said Lowell.

After nine weeks of testimony, the jury has struggled to reach a consensus on any of the charges against Menendez and his co-defendant, Salomon Melgen.

The jury of seven women and five men began deliberating last week, and it quickly became clear there were sharp divisions.

Last Thursday, an excused juror said she would have acquitted the senator, but predicted it would end in a hung jury.

Then, on Monday afternoon, the jury sent a note saying it was unable to reach a verdict. Judge Walls sent the panel home early that day, telling jurors to come back fresh and try again.

“I realize you are having difficulty reaching a unanimous decision, but that’s not unusual,” Walls told the panel the next morning. He said jurors should decide the case for themselves but shouldn’t hesitate to re-examine their views. “This is not reality TV, this is real life, “ Walls said.

The admonition did not resolve the impasse. During a smoking break Wednesday outside the courthouse, five jurors huddled in a group chatting, while a sixth male juror stayed away, smoking alone.

Menendez’s lawyers had repeatedly asked the judge to declare a mistrial over various evidentiary and procedural issues.

While mistrials are generally considered wins for defense lawyers and losses for prosecutors, the Justice Department will likely feel significant internal pressure to put the senator on trial again, because recent Supreme Court decisions have raised questions about how much legal authority prosecutors still have in pursuing corruption charges involving payments not explicitly and directly linked to official acts.

Some legal experts have warned that a defeat for the government in the Menendez case could make prosecutors more reluctant to pursue public corruption cases in the future.

A guilty verdict, on the other hand, could have had major ramifications in the Senate, where Republicans currently hold a narrow majority. If Menendez had been convicted, there would likely have been pressure on him to resign, or for fellow senators to expel him. If his seat had become vacant before mid-January, New Jersey governor Chris Christie would have been able to appoint his successor, likely turning a Democratic seat Republican until a November 2018 midterm election. But it was not clear that even if he had been convicted, whether Menendez and his fellow Democrats would have gone along with his ouster.

Prosecutors said Menendez took gifts from Melgen, including a luxury hotel stay, private jet flights, and campaign donations, in exchange for which he tried to help Melgen get U.S. visas for his girlfriends, intervened in the doctor’s $8.9 million billing dispute with Medicare, and assisted with a port security contract of the doctor’s in the Dominican Republic.

Melgen is already awaiting sentencing for a previous conviction for defrauding Medicare. The two men were on trial for bribery, and Menendez was also accused of lying on government disclosure forms about his finances when he did not report gifts of flights paid for by Melgen — an omission the senator calls an accidental oversight, not a criminal lie.

Menendez’s lawyers said the government, by charging Menendez, was trying to criminalize a longtime friendship between the two men, and that there was nothing corrupt about Menendez’s acts on Melgen’s behalf, or Melgen’s financial support of Menendez.

In closing arguments Menendez’s attorney Lowell said his client’s “deep and abiding friendship’’ with Melgen “destroys every single one of the charges’’ against them.

“Not one document, not one email hints at a corrupt agreement,’’ Lowell told the jury.

Prosecutors countered that the “friendship defense” raised by the lawyers is no defense at all, because it is still against the law to bribe a friend.

In closing arguments, prosecutor Peter Koski told the jury that the case was about “a greedy doctor and a corrupt politician,’’ and that Melgen paid Menendez be “his personal United States senator.”

To try to prove their case, prosecutors called pilots, government officials, and even a former lawmaker, former senator Tom Harkin, to the witness stand to describe how Menendez pushed and prodded officials on behalf of Melgen. At times, those witnesses delivered a mixed message to jurors.

Harkin, an Iowa Democrat, said that he had a meeting with Menendez about Melgen’s billing dispute as a “common courtesy’’ among senators — suggesting he didn’t see anything nefarious about the interaction.

The defense spent much of its time putting character witnesses on the stand — including current Sens. Corey Booker (D-N.J.) and Lindsey Graham (R-S.C.) to vouch for Menendez’s character.

The trial has taken place against the backdrop of last year’s Supreme Court ruling that overturned the corruption conviction of former Virginia governor Robert F. McDonnell (R).

Judge Walls tailored his jury instructions to conform to his reading of the McDonnell ruling, which narrowed the definition of an “official act” by a politician.




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