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John Edwards' prosecution an uphill battle from the start

GREENSBORO, N.C. — Almost from the moment John Edwards was indicted a year ago, some legal analysts warned that a criminal case was nearly unwinnable. It was unprecedented and unwise, they said, to expect a jury to convict a politician for accepting money from friends to deal with an intensely personal matter.

After a federal jury acquitted Edwards on one charge of violating election laws and deadlocked on five other charges, prompting a mistrial, the decision to prosecute a philandering politician for campaign finance fraud was still under debate Friday.

In what some experts said was a key flaw in the case, the Justice Department indicted Edwards even after the Federal Election Commission did not seek so much as civil sanctions against him. This lack of punitive action appeared to conclude that the commission believed Edwards did not violate election laws by using money from wealthy benefactors to hide his pregnant mistress, Rielle Hunter, during his failed run for the 2008 Democratic presidential nomination.

The government's prosecutorial arm was at odds with the very agency charged with policing campaign financing. And even after Edwards was indicted on six felony counts, trial testimony showed, the agency did not require his campaign to list the payments as campaign contributions.

Moreover, a former FEC chairman was prepared to testify on Edwards' behalf that $925,000 in payments were private gifts, not illegal campaign contributions — testimony that the judge disallowed.

"Given the absence of even civil sanctions by the FEC, in hindsight deciding to bring a criminal case against Edwards is certainly questionable," said Hampton Dellinger, a North Carolina lawyer who has taught election law at Duke University and attended the trial.

Prosecutors were hamstrung by the challenge of convincing jurors that Edwards' use of the money to cover up the affair was a violation of complex federal campaign finance laws, Dellinger said.

"It was a big stretch, and an even bigger stretch than the judge let the jury know, because she excluded evidence from the Federal Election Commission which would have showed how murky this area of the law is," Rick Hasen, a professor at the UC Irvine School of Law, said in an email.

Hasen added: "The prosecution was flawed from the start. Criminal liability for campaign finance violations should be reserved for violations of clearly established law."

The jury foreman, David Recchion, told NBC's "Today" show that the prosecution's star witness, former Edwards aide Andrew Young — who detailed the affair in salacious testimony — lacked credibility, a point "of utmost importance" to jurors.

"I think, unfortunately, that was probably the key part of the miss for the prosecution," Recchion said of Young, who had falsely claimed to have fathered Hunter's child to protect his boss.

Recchion and two other jurors also told NBC that while they believed Edwards was guilty of some campaign finance violations, prosecutors didn't produce convincing evidence to overcome their doubts about the government's case.

"He was just smart enough to hide it, and we could not find the evidence," juror Cindy Aquaro said of Edwards. "I think he was guilty, but the evidence just was not there for us to prove guilt."

Juror Ladonna Foster said: "I think he definitely had some knowledge of the money, where the money was going."

And juror Sheila Lockwood said onABC's"Good Morning America" that Edwards "didn't get the money, so I just didn't think he was guilty."

Months before the case went to trial, Edwards' lawyers accused the Justice Department of a politically motivated and "vindictive" prosecution. In October, they sought and failed to have the charges dismissed on grounds that the Republican U.S. attorney in Raleigh at the time, George Holding, was politically biased against Edwards, a Democrat.

Holding, the millionaire scion of a North Carolina banking family and former aide to Sen. Jesse Helms, donated to Edwards' Republican opponent in a 1998U.S. Senate race. As senator, Edwards helped block Holding's nomination to the U.S. Court of Appeals in 2001.

"This case is about politics.... A Republican U.S. attorney with political ambitions of his own has used this high-profile case to his personal benefit," Edwards' lawyers wrote in the motion to dismiss.

The Obama administration, sensitive to charges of political interference, left Holding, aGeorge W. Bushappointee, in office while Holding was prosecuting North Carolina's Democratic then-governor, Mike Easley. Holding indicted Edwards in June 2011, then resigned a week later to run for Congress in the state's 13th District.

Edwards' lawyers also argued last year that the charges were unconstitutionally vague and that no such prosecution had ever been attempted.

"It could just be the facts are novel," U.S. District Judge Catherine Eagles replied.

That was certainly true: Two wealthy benefactors gave nearly a million dollars that paid for a cross-country scheme to hide Hunter — and later a daughter fathered by Edwards — from National Enquirer reporters determined to expose the affair. While the arc of prosecution testimony was cinematic, the jury was asked to decide between two flawed narratives based on two men exposed as liars — Edwards and Young.

Young, who made the false claim about having fathered Hunter's child, testified that Edwards orchestrated the scheme to solicit and spend money from the donors. Edwards' lawyers said their client, who lied about the affair, knew nothing of the payments during the campaign.

"All the salacious details prosecutors offered up to prove that Edwards is, indeed, despicable, were not enough to persuade the jury to convict him," said Melanie Sloan, a former federal prosecutor who directs Citizens for Responsibility and Ethics in Washington, a watchdog group. She criticized the Department of Justice, calling this "a lousy case" and a waste of taxpayer money.

Another watchdog group, the Center for Competitive Politics, said in a statement from its president, David Keating: "The case should never have been brought.... Prosecutors should stop trying to use vague laws to criminalize politics."

The Edwards outcome was another blow for the Justice Department's public integrity section. Prosecutors from the section were sanctioned for failing to turn over evidence in the botched prosecution of the late Sen. Ted Stevens of Alaska in 2008, and the section lost an Alabama gambling corruption case earlier this year.

Citizens for Responsibility and Ethics in Washington has criticized the section for focusing on Edwards while declining to prosecute allegations of political corruption against Sen. John Ensign of Nevada and Rep. Jerry Lewis of California. Ensign, like Edwards, was accused of covering up an illicit affair — with the wife of an aide.

On Thursday, the Justice Department sent reporters a long list of successful public corruption prosecutions by the public integrity section. Over the last four years, the department said, the unit has won guilty pleas from 136 defendants and convicted 25 more at trial.

Edwards' prosecutors were also handcuffed by a paucity of testimony from the central players in the mistress coverup. Neither Edwards nor Hunter testified. Nor did the two benefactors, billionaire heiress Rachel "Bunny" Mellon, who is 101 and in failing health, and wealthy Texas lawyer Fred Baron, who died in 2008. Elizabeth Edwards, whose mounting suspicions of her husband's affair prompted the attempts to cover it up, died of cancer in 2010.

The jurors were left with Young's meandering account. He testified under an immunity grant and wrote an error-pocked, tell-all book about Edwards. Defense testimony showed that Young and his wife, Cheri, pocketed much of the donated money for themselves — and kept phony books to cover it up.

The Justice Department has not said whether it will retry Edwards on the five deadlocked counts. Several legal analysts predicted that the case would not be pursued.

They said prosecutors gave their best shot — with 24 witnesses over three weeks and mountains of exhibits about payments, emails and phone calls — yet still failed to convict Edwards on a single count.

"It would be very surprising if the government went back to the well to try him again," said Jerry H. Goldfeder, a New York campaign finance lawyer who also teaches election law. "I think this prosecution is over. It failed and it is over."

david.zucchino@latimes.com

Times staff writer Richard Simon in Washington, D.C., contributed to this report.

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