Tuesday, May 22, 2012

Connecting the John Edwards and Dharun Ravi Cases: Moral Luck

By Mike Dorf

As I write, the jury in the John Edwards case is still out, deliberating about the fate of the former Senator.  Here I want to reflect a bit about the seeming peculiarity of an element of two of the crimes that the prosecution has attempted to prove.  As I noted nearly a year ago, as a predicate for finding that Edwards violated campaign finance laws with respect to the money provided by Bunny Mellon, the government must prove that Mellon intended the money as a campaign contribution.  The oddity on which I want to remark is the notion that a criminal defendant's guilt or innocence turns on a third party's mental state.  My analysis will lead me to note a connection to the Dharun Ravi case.

The complete jury charge in the Edwards case can be found here.  For count 2, the judge summarized the charge as follows: 
[B]efore you can find Mr. Edwards guilty, the government must prove beyond a reasonable doubt that, while he was a candidate for president, Mr. Edwards knowingly and willfully accepted or received, or knowingly and willfully caused another to accept or receive on his behalf, contributions from Ms. Mellon that totaled $25,000 or more during calendar year 2007.
Count 3 of the indictment charged the same conduct for calendar year 2008.

One way that Edwards could be found not guilty on these counts is if the jury finds that the money given by Bunny Mellon were not campaign contributions.  As other instructions relevant to these counts make clear, whether the money counted as campaign contributions turns on whether Mellon intended the money to influence the outcome of the election.  The jury was told that this is a factual question to be determined based on "evidence about the intent, motivation, and goals of Ms. Mellon, evidence about the statements made surrounding the solicitation and acceptance of the money, how the money was actually spent, and other evidence of all the surrounding circumstances . . . ."

As I noted in my post last year, I find it difficult to imagine that Mellon did not intend the money she gave to influence the election.  Here is what I wrote then:
It is nearly inconceivable that the money for hiding the Hunter affair was not "for the purpose of influencing" the 2008 Presidential primary.  What other possible purpose could it have served? Even if we assume that the Mellons and John Edwards were very close personal friends, what kind of human being gives a close personal friend over $700,000 to hide his affair from his wife?  It's possible that Mellon, over 100 years old, was not aware of exactly how Edwards planned to spend the money but it's hard to believe that she just happened to give Edwards this enormous sum of money as a gift just when he happened, by sheer coincidence, to be running for President.
Now I should add the important caveat that I have not followed the trial all that closely and so it is possible that the evidence presented differed from what was described in the media a year ago.  But assuming that the evidence at trial more or less tracked the public story, I would be surprised if Mellon's intent ends up being crucial to the Edwards defense.  And from what I understand, the Edwards defense has mostly focused on his state of mind--arguing that he was out of the loop on Andrew Young's efforts to get money from Mellon.

Now let's focus on what I'm calling the main oddity here: The requirement that, as part of the prosecution's case against Edwards, it must prove Mellon's intent with respect to the money she provided.  As I understand criminal law in general, for Mellon's intent to be an element of the crime, the jury must find beyond a reasonable doubt both: (1) that Mellon intended the money to influence the election; and (2) that Edwards knew that Mellon intended the money to influence the election.  (The actual jury instructions require more than knowledge from Edwards; they require willfulness; but knowledge is enough for my purposes.)

Let's suppose that Edwards in fact knew all about the fact that Mellon was giving money to Young to hide the Hunter affair from Elizabeth Edwards.  But consider two further possible scenarios:

Scenario A: Bunny Mellon writes a note to Edwards in which she says: "You're the best hope of the Democratic Party.  I'm giving you this money to help you become President."  Secretly, however, Mellon does not want to influence the election.  Unbeknownst to Edwards, she contemporaneously writes in her diary: "I know that Hillary or Barack will crush that cad John in the primaries so I know this money won't make a bit of difference in the campaign.  But I feel so bad for Elizabeth.  I hope that John uses this money to spare her feelings."

Scenario B: Bunny Mellon writes a note to Edwards in which she says: "John, you are a cad and I hope you don't become President.  I'm only giving you this money so you can protect Elizabeth from learning of your betrayal."  Secretly, however, Mellon hopes to influence the election.  Unbeknownst to Edwards, she contemporaneously writes in her diary: "I feel so guilty helping John Edwards get the nomination but I just know that he's got a better chance of winning the general than Hillary or Barack."

In both scenarios, Edwards is not guilty.  In Scenario A, Mellon lacks the intent necessary for a campaign contribution, while in Scenario B, Edwards lacks the requisite knowledge of Mellon's intent.  To me, the more problematic result is A, because in that scenario, Edwards has taken action which, had the world been as he thought, would have resulted in his committing a crime.  He was just fortunate that--through nothing traceable to him--facts in the world made him not guilty.  By contrast, Scenario B is not problematic at all, because there Edwards himself lacks the requisite mental state to commit a crime.

Upon reflection, it appears that what's peculiar in the Edwards case is actually quite a common feature of the criminal law: the problem of how to deal with moral luck.  Scenario A is arguably the flipside of the Dharun Ravi case.  Like Edwards in Scenario A, Ravi had the requisite intent to commit a criminal act.  But whereas Ravi had the bad "luck" to have had his criminal act lead to a suicide, Edwards in Scenario A has the good luck to not even commit a crime due to something completely outside of his control.