As his trial nears its end, Edwards may testify

ablythe@newsobserver.com May 16, 2012 

— The end of the John Edwards trial came into view Tuesday as his defense team told the judge that only three potential defense witnesses remain — the defendant, his daughter, Cate, and his former mistress, Rielle Hunter.

Defense Attorney Abbe Lowell announced the list while informing Judge Catherine Eagles at the end of Tuesday’s proceedings that the defense may rest on Wednesday or Thursday. The defense may also recall the government’s lead witness, ex-Edwards aide Andrew Young.

As the defense nears its conclusion, speculation grew about whether Edwards — a skilled and successful trial attorney before his rise and fall in politics — will choose to take the stand.

But whether John Edwards and Hunter will testify remains to be seen. Few lawyers expect the defense team to call Hunter. The government chose not to call her.

Though defendants in criminal cases can take the stand and offer limited testimony that leaves little legal room for in-depth cross-examination by prosecutors, it nonetheless could be risky for Edwards, legal analysts say.

“He’s got a huge mountain to overcome,” said Steve Friedland, a former federal prosecutor and an Elon University law professor who has been inside the courtroom for most of the trial. “His credibility is at issue.”

Prosecutors played a videotape 20 minutes before resting their case that shows Edwards in August 2008 lying in an ABC “Nightline” interview to newscaster Bob Woodruff. Edwards denied then being the father of the daughter he has with Hunter.

Edwards, 58, a former North Carolina senator who sought the Democratic presidential nomination in 2004 and 2008, is on trial on six criminal charges related to his allegedly using payments from two of his wealthy supporters to cover up his affair with Hunter and her pregnancy. Prosecutors say the coverup violated campaign finance laws, but Edwards’ lawyers maintain it was matter of friends helping Edwards with a purely personal matter and no campaign funds were involved.

The defense, through the testimony of Cate Edwards, a 30-year old Harvard law school graduate, could give the jury a glimpse of what was going on in their family at the time, and the impact of the affair and the daughter born from that liaison.

“It seems certain that Cate Edwards will testify,” said Hampton Dellinger, a Triangle-based lawyer who has been at the trial for most of the testimony.

But whether her fatherwill is an issue for much debate and thought.

“The key issue is whether the defense could limit the scope of his testimony,” Dellinger said. “It’s hard to limit the scope of a key witness.”

Ultimately, it would be the judge’s decision how far prosecutors could go in cross-examination, but by that time a defendant is on the stand.

“The real pressure on the defense is the jury has seen John Edwards on video, they’ve heard his voice on phone messages,” Dellinger added. “There’s real temptation for the defense to let him take the stand and tell the full story, but then he’s subject to cross-examination.”

Friedland noted that the defense might have named Hunter and John Edwards as potential witnesses in order to force prosecutors to spend time preparing for them rather than focusing on their rebuttals and closing arguments.

“Criminal cases are chess games,” Friedland said.

In testimony Tuesday from private investigator Jim Walsh, a former FBI agent with expertise in white-collar crimes, the defense team was able to show charts and records that detail how all but about $25,000 of the $725,000 from checks written by billionaire Rachel “Bunny” Mellon went into the personal bank accounts of Andrew and Cheri Young, the former political aide and his wife.

Walsh’s charts also showed that Texas lawyer Fred Baron, also a billionaire, wired $75,000 to Hunter’s account from August to December 2008, bolstering the defense’s contentions that the money had nothing to do with a campaign that ended in January 2008.

When it gets the case, the jury will face two key issues. . One, they have to decide whether payments that went to support Hunter are campaign contributions subject to public reporting and caps. If that answer is yes, the jury then must decide whether Edwards, a Democratic hopeful in the 2008 presidential race, knew of the payments and knew that they were in violation of campaign finance law.

John Moylan, a South Carolina lawyer who was with Edwards shortly after he acknowledged his affair with Hunter on the August 2008 TV interview with newscaster Bob Woodruff, testified on Tuesday that he thought the former presidential candidate was surprised to find out after that revelation that Mellon had been providing money to Andrew Young.

Moylan recounted a conversation that Edwards, Mellon and he had in her Upperville, Va., home in which the topic of her checks arose.

Moylan had been with Edwards since the day after he publicly acknowledged his affair.

Elizabeth Edwards had asked Moylan to spend time with her husband so he would have someone to talk with and be with during a particularly tense time. Moylan stayed at the Edwards’ home outside Chapel Hill the first night. He and Edwards talked and shot basketballs.

Then they went to Edisto Beach, S.C., for several more days before Edwards decided he wanted to drop in on Mellon to talk about his future. Mellon sent her private jet to Waltersboro, S.C., where Moylan lived. The two men boarded and got off at her expansive estate in the hilly countryside of northern Virginia.

Moylan had not met Mellon before, according to his testimony, but she welcomed both men into her living room. At some point during that visit, Mellon asked Moylan if he knew Bryan Huffman, the interior decorator she had been funneling checks through to Andrew Young and his wife Cheri.

Moylan said he did not know Huffman’s name, and to his knowledge had not ever met him.

Mellon then described the method she had been using to route checks to Young through Huffman, and Edwards was there for the conversation.

“I believe he was as surprised to hear it as I was,” Moylan recalled.

Edwards, according to Moylan, responded with: “Bunny, you should not be sending money to anyone.”

Edwards and Moylan had been staying in guest quarters at Mellon’s farm, and the two men walked to where they were staying, bothered by what the wealthy heiress had told them, according to Moylan.

Moylan said there was concern then, and continues to be today — words that raised objections by prosecutors and instruction from the judge for the jury to disregard that — that Young “was trying to get money using Mr. Edwards’ name.”

Moylan recounted several more phone calls during that visit with Mellon — with Alex Forger, Mellon’s lawyer, with Fred Baron, the billionaire Texas lawyer who was national finance chairman for the Edwards’ 2008 presidential run, and Jay Anania, the brother of Elizabeth Edwards.

Edwards used Moylan’s phone many times throughout their time together. Prosecutors pointed out that Andrew Young had recorded a voicemail from Edwards during that time saying he was about to have a private meeting with Mellon to discuss setting up a new foundation in which Young could have a role.

It was unclear whether that conversation took place before the one Moylan recounted.

Moylan said his recollection of the dates and times of conversations then was vague.

Moylan’s testimony came on the second day the defense team has called witnesses in a trial that has gone on for nearly a month.

Defense lawyers first sought to attack the underlying premise of the prosecution’s case. They called two witnesses with a wealth of knowledge about campaign finance law to state that money used by a candidate to support a mistress had never been something reported as expenses on public reports.

Wade Smith, a Raleigh attorney who represented Edwards before leaving the defense team last October, was in the unusual position Tuesday of testifying about a conversation he had while representing a client.

Smith elaborated on a phone conversation he had with Forger, Mellon’s lawyer, a matter that came up in the second week of the trial.

Forger testified as a witness for the prosecution that Smith told him in a phone conversation that Edwards had told him that he was the beneficiary of the money paid by Mellon.

But on Tuesday Smith had a different recollection of the call, saying he would not have consulted Edwards on something that he considered a legal question about gift taxes nor would he have divulged that, violating an attorney-client privilege he holds to high regard.

Blythe: 919-836-4948

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