Speed Bump or Dead End? The 2018 Retrial Prospects for Sen. Menendez

By: James Trusty

This holiday season was undoubtedly festive for Senator Bob Menendez, whose corruption trial ended with a deadlocked jury in mid-November.  The Department of Justice (DOJ) has yet to announce whether it will elect to re-try the New Jersey senator, but here are some of the factors they will, and will not, consider in making that decision:

The Split

In many jury deadlock situations, the judge, or even the parties themselves, will find out the split between guilty and not guilty votes.  This can be a fundamental deciding factor on the question of retrial.  If the prosecution learns, for example, that the split was 11-1 to convict then they may conclude they simply landed on a defective juror in an otherwise powerful case.  Conversely, if the prosecutors find out the case was 11-1 to acquit, then they would tend to walk away from the case without re-prosecution, unless there is some radical new strategy or evidence that could be used in the new effort.  The harder cases to gauge are when the split is something like 7-5 or 6-6.  Any sizeable group of jurors voting to acquit will give the prosecution pause before trying again.

The 2.0 Version

With the benefit of hindsight, can the prosecution now re-tool its case to present it in a more compelling way or to add in additional evidence that either didn’t exist or wasn’t used in the first trial?  Sometimes prosecutors hold back on either witnesses or evidence that could have been presented during the first trial. Those decisions can be revisited. Learning from courtroom mistakes tends to inure to the benefit of the prosecutors as well, and knowing how Abbe Lowell and company cross examined the government’s 57 witnesses can help prosecutors edit their direct examinations, and indeed opening and closing arguments, while lessening the impact of the defense arguments and tactics.   Because of the exposure of the defense tactics, arguments, and theories, retrials generally go better for the government than for the defense.  DOJ supervisors of this case are going to ask the trial team, “what can you do differently?” and unless the split was 11-1 to convict they need to have a thoughtful answer.

The Cost of Justice

Long and complex trials are not cheap.  State prosecutions, in particular, can take a significant budget hit by “investing” in long trials and retrials.  Aside from the man-hours and opportunity cost of tying up prosecutors and investigators, the government is frequently paying for witness travel, expert witnesses, discovery reproduction and distribution, and more.  An 11-week trial is a significant fiscal event.  That said, the Menendez prosecution was a DOJ, i.e., federal government, affair, so do not expect penny-pinchers to win the day if DOJ leadership wants the case retried.

The Shame Game

Senator Menendez gave a courthouse steps press conference shortly after the mistrial was declared in his case.  He referred to himself as innocent, claiming the case was an “unjust prosecution” built upon “false claims.”  He excoriated the prosecution team, railing about how “the way it was prosecuted was wrong” and even “the way it was tried was wrong.”  It was an emotional and proud statement of vindication, but to what effect?  With the declaration of a mistrial, the case returns to a “pending matter,” which effectively mutes the prosecution from saying anything other than a tepid, “we’ll get back to the court soon.”  If the prosecutors believe in their case, as they presumably do, then it must have been a teeth-grinding moment to hear Menendez trash their case and prematurely announce his victory.  But the most the prosecutors can settle for, at that junction, is a quiet mumbling of “he who laughs last, laughs best” between themselves in preparation for Round Two.  They simply cannot run to the courthouse steps and defend themselves or trash the good (or bad, as they see it) Senator.  Experienced prosecutors are quite used to watching the defense run wild with the media while the prosecution team stands by, patiently and silently.  Consequently, I find it unlikely that the prosecutors will consider Menendez’s comments as a contributing factor for or against re-trying him.

Community Harm

Another serious factor in deciding whether to re-try a case is the perceived risk of harm to the community by not going forward.  Violent crime cases tend to be re-tried at a high rate, as the prosecutors are loath to let an alleged murderer (rapist, robber, etc.) back out into the community.  On the other hand, if the prosecution suffered a 4 guilty/8 not guilty mistrial in a $100,000 tax evasion case they may hardly hesitate before announcing their unwillingness to try it again.  In the case against Sen. Menendez, there are no family members of victims lining the back of the courtroom with palpable suffering in their faces.  Despite the importance of pursuing public corruption for the good of the “system” and a diffusely harmed public, it is not the type of case where the literal safety of the public warrants an “at-all-costs” approach to putting the senator in an orange jumpsuit for decades.

There are too many unknowns (like the split) to make a firm prediction on whether the government will retry Sen. Menendez.  My guess on this very close call is that the prosecution team had a fairly bad split within the jury and they would not present a significantly different case if tried again.  DOJ high profile losses, as in the Senator Ted Stevens case and the Governor Bob McDonnell appeal, may loom large in the minds of new DOJ leadership.  Thus, on a quiet Friday afternoon when the media is gearing up for playoff football, DOJ will issue a one-line announcement that it will not seek to retry Sen. Menendez.  To the extent the citizens of New Jersey feel like victims of a corrupt politician, they can take matters into their own hands and vote him out of office later this year.