Judge to consider motions for new trial

Melinda Deslatte

Thursday, Dec. 7, 2000 | 4:55 a.m.

BATON ROUGE, La. - After throwing out three fraud convictions, a federal judge will take a look Thursday at the other convictions in former Gov. Edwin Edward's gambling corruption trial.

U.S. District Judge Frank Polozola set aside last spring's mail fraud convictions Wednesday - two against Edwards and his son Stephen and a third against co-defendant Bobby Johnson - because of a U.S. Supreme Court ruling last month in another case.

Polozola was to hear arguments Thursday on additional motions for a new trial or acquittal for the men, including a motion asking for a new trial for Johnson because of his heart condition.

Polozola said Wednesday that he was leaning toward giving Johnson a new trial, partially because prosecutors already could retry Johnson on the fraud count.

"If I didn't think it was a close issue, I wouldn't be revisiting it," Polozola said.

Johnson left the courtroom midway through the trial to undergo heart bypass surgery to replace five blocked arteries and never returned during the trial.

Defense attorneys argued that Johnson couldn't defend himself because he wasn't in court each day to hear and see the testimony against him and the other accused men.

Prosecutors claimed Johnson knew of his heart condition before the trial and chose to wait and have the operation during the trial. They said he was present during the government's case against him and knew the evidence to properly defend himself.

"They're obviously up to something, and we need to deal with it," said prosecutor Todd Greenberg. "I think they raise a new claim every day."

Prosecutors had agreed that a recent U.S. Supreme Court ruling nullified the three fraud counts that were thrown out Wednesday, but they didn't say if they would retry them.

"We haven't made a decision yet," U.S. Attorney Eddie Jordan said outside the courthouse.

Polozola made the ruling without comment before hearing additional arguments on whether evidence used to support the voided convictions improperly influenced jurors on other matters in the case. He said he hoped to rule on that matter Thursday.

Edwards, his son and three others were convicted in May of racketeering, extortion, fraud and conspiracy involving allegations they rigged riverboat casino licenses. The Edwardses were convicted of five counts of mail fraud. Johnson was convicted of one count of mail fraud.

In November, the U.S. Supreme Court ruled in a separate Louisiana gambling corruption case, involving a New Orleans lawyer, that federal mail fraud laws do not apply to state licenses that have not yet been awarded.

A license discussed in the Edwardses' gambling corruption trial was never awarded.

Defense attorneys Wednesday sought to use the Supreme Court ruling as a means to get their clients out of all the charges in the casino licensing scandal.

Prosecutors fought to limit the scope of Polozola's ruling to only three mail fraud counts.

"What the defendants are trying to do essentially is to parlay the Supreme Court's decision into a get-out-of-jail-free card for all of the counts," Greenberg said.

Jim Cole, an attorney for Edwards and his son, argued that there was no way to tell what the jury used to determine its verdict.

"We can guess, we can suppose, we can try to divine, but we cannot determine without a reasonable doubt," he said.

But Polozola indicated he was not interested in reconsidering the entire case, noting that he was concerned primarily with three other fraud counts and one count of conspiracy to commit mail and wire fraud.

"I'm not ruling yet, but the rest of these (counts) I think are really pretty stable," the judge said.

Each of the counts thrown out would have carried maximum sentences of five years in prison and $250,000 in fines.

Before the fraud convictions were voided, federal probation authorities reportedly had recommended imprisonment for 11 to 14 years for Edwin Edwards.

Polozola delayed the men's sentencing - originally scheduled for Wednesday - to hear arguments about the ruling. The judge said he would set a sentencing date after the hearing, if the convictions are upheld.

Former Edwards aide Andrew Martin, Eunice cattleman Cecil Brown and Johnson, a Baton Rouge businessman, were convicted along with the Edwardses on a variety of charges in the case.

The men plan to appeal their convictions if they do not receive a new trial. Defense attorneys have indicated the appeal could touch on several issues including the legality of the wiretaps used to gain evidence, the removal of one of the jurors during deliberations and the Supreme Court ruling.

Polozola also said he planned to hear testimony Thursday about allegations against the jury's foreman. The judge said the court's marshals investigated the matter, but he planned to call three witnesses to further discuss the issue.