The many twists and turns of the federal government's case against former Congressman Bill Jefferson continued last week as the trial finally got under way in Virginia.
The two latest surprises were the government's decision not to call financier-turned-informant Lori Mody to the witness stand during its "case in chief" and the selection of four African-American jurors on the 12-member panel. Jefferson's legal team had sought to move the case to a friendlier venue — Washington, D.C., or New Orleans — in the hopes of getting more blacks on the jury. Judge T. S. Ellis III rejected that motion.
Now, it seems, Jefferson at least has a shot at gaining some sympathy among those who will judge him. It takes a unanimous jury vote to convict.
The government's decision not to use Mody as a witness during its case in chief is intriguing on several levels. The obvious conclusion, put forth by the defense, is that she would not hold up well under cross-examination. The defense has suggested that she has mental health issues and perhaps other baggage that could be used against her on the stand.
On the other hand, just because she will not be testifying during the government's case in chief does not preclude the feds from calling her as a rebuttal witness — after Jefferson has put on his case and possibly testified himself. Nor does it preclude the defense from calling her as a witness.
Veteran criminal attorney Donald "Chick" Foret, who spent years as a state and federal prosecutor before becoming a notable criminal defense lawyer, says the government "can keep her in reserve."
"This could actually discourage Mr. Jefferson from testifying," Foret speculates. "If he does testify, they could call her to rebut and punch holes in anything he might say in his own defense.
"If she were called as a witness in the government's case in chief, he could respond to her testimony point by point. If she's used as a rebuttal witness, he has to speculate as to what she might say. It gives him nothing to shoot at, but rather lets her shoot at his testimony. It's much more difficult to testify as a witness, particularly in a complex federal criminal case, when you haven't heard the other side's testimony ... The best use of a witness is always being able to go last, not first."
Foret notes that Jefferson's attorneys could still cross-examine Mody if she's used on rebuttal, but if she is used purely to counter testimony by Jefferson, the government would have time to prepare her — and themselves — to focus on what they see as the weakest points of Jefferson's testimony. "If she is fragile or apprehensive, this allows her to be more focused."
Having four black jurors also is a double-edged sword, Foret says.
"Statistically, it seems that the defense has done quite well. There were only nine blacks in the general pool of 100 potential jurors. Getting four of them on the 12-member jury is a big win for the defense. Of course, no one should assume that black jurors will vote to acquit or that white jurors will vote to convict, but this could weaken a potential defense claim down the road, in the event of a conviction, that the government tried to stack the jury against Jefferson by choosing a venue with few blacks."
Opening arguments begin on Tuesday, and the case is expected to last four to six weeks. No doubt we'll see more twists and turns before it's over.