Lawyers are often taught the defense has two options in a criminal trial — poke holes in the prosecution’s case to create reasonable doubt or provide a counter-narrative.
A team of defense attorneys trying to keep Sen. Bob Menendez out of prison have opted to do both.
Family members, former congressional staffers and a 40 year veteran of the Commerce Department took the witness stand in the New Jersey Democrat’s defense this week as his lawyers seek to chip away at the Justice Department’s bribery case.
“It’s time for us to tell our side of the story, which I believe is the true side, and I have faith in the jury that they’ll hang in there,” Menendez told reporters walking into court Wednesday.
Prosecutors accuse Menendez of corruptly using the power of his office to help a wealthy ophthalmologist from Florida — Dr. Salomon Melgen — resolve business disputes in exchange for political donations and a life of luxury the senator couldn’t afford.
More specifically, prosecutors say Menendez pressured high-level officials within the Obama administration to change drug reimbursement policies in order to help Melgen resolve a $8.9 million billing dispute with Medicare, encouraged State Department officials to help Melgen settle a contractual dispute with the Dominican Republic government, and contacted an ambassador to secure travel visas for Melgen’s foreign girlfriends.
Throughout the trial the men have maintained their innocence, but as the seventh week came to a close Thursday, the contours of the defense team’s three-pronged attack strategy came into sharper focus: show the two men are best friends without any possible corrupt intent; make the jurors believe that Menendez was motivated to act out of broader (and legitimate) policy concerns, not because he was being paid off by his friend; and then undermine the prosecution’s strongest witnesses with directly contradictory testimony.
Defense witnesses
“It was commonly known in the office that Sal Melgen was his closest personal friend,” Jodi Herman, Menendez’s long-time foreign policy adviser, told jurors Thursday, echoing testimony from the senator’s son and Melgen’s wife earlier in the week.
Herman deftly executed the defense team’s triple threat strategy, as she also directly contradicted one of the central disputed points prosecutors have hammered: the extent of Menendez’s efforts to push State Department officials to help resolve Melgen’s contractual dispute with the Dominican Republic.
Herman said Menendez never threatened to hold a congressional hearing if the issue wasn’t resolved in the doctor’s favor — despite a prosecution witness telling jurors the exact opposite last month — and that the senator had been generally interested in port security issues throughout the Caribbean as a part of his role on the Senate foreign relations committee.
Earlier in the week defense lawyers also played a short television commercial from Menendez’s senatorial bid — “Protecting New Jersey’s Ports” — to further illustrate for jurors that port security, not his friend’s contract, had been a priority for Menendez for years.
Another defense witness tried to undermine the idea that Menendez’s “tone” had been “aggressive” when it came to lobbying an official from the Centers for Medicare and Medicaid Services on drug reimbursement policies in 2009.
“The senator is a strong advocate,” said Karissa Willhite, Menendez’s former deputy chief of staff, “but, it was not angry. There was no yelling. That is just not in his character at all.”
Willhite also resisted efforts from the prosecution to paint the senator’s efforts as motivated solely by Melgen’s individual dispute — despite confronting her with multiple email exchanges to make her story implausible — instead emphasizing that Menendez was genuinely concerned about the fairness of the Medicare reimbursement policy, because he was not the only doctor affected.
“(W)e did not work on the billing dispute itself,” Willhite told jurors repeatedly. “We worked on questions surrounding the policy that the case brought to our attention.”
‘The wild card’
While the defense team has indicated it hopes to wrap up its case by Halloween, it remains to be seen whether Menendez takes the stand in his own defense.
“(T)he wild card is do the defendants choose to testify. And if they do, that will take some time,” defense attorney Kirk Ogrosky told the judge in a sidebar earlier this week.
Yet Judge William Walls has appeared frequently exasperated with the defense strategy at times, prompting lawyers to “move on,” and sharply limiting lines questioning, especially when he senses defense attorneys are unduly focused on trying to show Melgen’s billing practices were not actually improper.
“They know what your defense is,” Walls said Tuesday, suggesting to defense lawyers that the jury is “probably is more perceptive of that than you give it credit.”
But what remains unclear is whether the jury will, in fact, be able to piece together a coherent narrative in either direction until closing arguments given the sprawling and conflicting testimony from both sides at this point.
“In longer trials, closing is even more important because you have to either remind the jury of what was said, or be able to provide them with an explanation,” says Michael Weinstein, a former trial attorney at DOJ and now at Cole Schotz law firm in New Jersey. “Memories fade, jurors are human and they need to be refreshed.”
Notwithstanding the length of the trial, testy exchanges among the lawyers, and a cantankerous judge, the jurors seem to have gotten chummy over their many weeks together — often laughing as they shuffle into court from their back room. One was even spotted one chilly fall morning this week with a box of fresh Dunkin’ Donuts in hand to share with his new friends.