Is a federal judge boxing Menendez in?
Posted October 27, 2017 9:38 a.m. EDT
NEWARK, New Jersey (CNN) — After over 50 witnesses, hundreds of exhibits, and an untold number of objections, Sen. Bob Menendez's federal corruption trial is winding down, but a major looming question remains: Will the New Jersey Democrat take the stand?
Part of the answer to that question could be shaped by a mercurial trial judge's take-no-prisoners approach to the first major bribery case of a sitting US senator in nearly a decade.
Judge William Walls has sharply limited the evidence the defense team has tried to introduce over the past eight weeks -- precluding the admission of certain documents and witnesses, cutting off cross-examination and scolding the lawyers for tactics he views as gamesmanship and "spin."
The cumulative effect of Walls' rulings suggest defense lawyers must now weigh the benefit of putting their clients on the witness stand to fully explain their side of the story with the risk of being subjected to a scathing cross-examination.
"It's a real Hobson's choice," said former federal prosecutor Paul Pelletier, now a partner at Pepper Hamilton. "If the defense thinks they've been prevented from telling their story through witnesses and cross-examination, usually there is only one person left to tell that story, and (Menendez) may feel as though he has to take the stand."
A story of intent
The motive and intent of Menendez and a wealthy ophthalmologist, Dr. Salomon Melgen, are at the heart of this trial.
Prosecutors say Menendez pressured high-level officials in the Obama administration and other career diplomats to help Melgen resolve his business disputes in exchange for political contributions, free rides on Melgen's private jet, and a posh hotel suite at the Park Hyatt in Paris.
The defense team says the two men were close friends, not engaged in a corrupt enterprise and deny all charges. Menendez's lawyers have repeatedly tried to show that the senator was motivated to act by broader policy concerns -- not merely his friend's problems -- when he reached out to officials in the executive branch.
For instance, prosecutors accuse Menendez of pushing officials to help resolve an $8.9 million Medicare billing dispute in Melgen's favor, while the defense team says Menendez was focused on the fact that the billing policies were conflicting and the drug companies were enjoying a windfall.
To that end, lawyers have sought to show jurors what the senator saw, heard and said during the period prosecutors claim he was engaged in a bribery scheme in order to cast doubt on any notion of a corrupt intent.
Judge Walls, however, has frequently restricted defense lawyers from introducing evidence of their client's intent through surrogates and documents, leading to a number of heated sparring matches in which he has suggested (outside the presence of the jury) that the only way the jury will hear such evidence is if the defendants chose to testify.
"You have to at some point allow the senator, whose words are being admitted into evidence, to explain why he said those words," Menendez defense attorney Abbe Lowell told Walls after the judge refused to play a full, unedited CNN interview of the senator in 2013.
"He has, if he wishes to take the stand, he has a right to go so far," Walls shot back.
Michael Weinstein, a former trial attorney at DOJ and now at Cole Schotz law firm in New Jersey, says the judge is signaling, without saying so directly: "either the evidence comes in through you or nobody."
A risky proposition
Had Judge Walls made these comments in front of the jury, legal experts say he would risk trampling on constitutional rights, as criminal defendants have an absolute right not to testify at trial and without comment.
"The most important part is that nothing is said in front of the jury," said Lee Vartan, a former federal prosecutor. "That's the cardinal rule."
But the effect of Walls' rulings may still box Menendez in, leaving defense attorneys thinking "is there enough of a reward for the risk of putting Menendez on the stand," said Weinstein.
"If you feel like you're getting your narrative out to the jury without exposing your client to the risk of cross-examination, then you're not going to risk it," Vartan agreed. "But if you don't, then you really have to weigh that seriously. There's no right answer."
"Even if you are someone who is smart and polished, it's hard to be up there and have someone come after you adversarily without losing your cool," Vartan added.
Experts say while the decision to testify is never a simple one for any criminal trial, it's made even more complex in this situation given that one of the defendants is a sitting senator who may try to run for reelection next year.
Ross Baker, a political science professor at Rutgers University, says looking beyond the verdict, New Jersey voters outside the four corners of the jury box may punish Menendez if he doesn't take the stand.
"This will be read by a larger audience," says Baker, "one that was not in the courtroom. And any opponent he would have in seeking reelection would point to his refusal to testify as he has something to conceal, even if he's acquitted."