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Hung jury in Sen. Menendez case leaves legal cloud with possibility of retrial, ethics probe

U.S. Sen. Bob Menendez’s trial ended Thursday with a jury deadlocked on all 18 counts against the New Jersey Democrat and his co-defendant, failing to lift the legal cloud that has hung over the senator for nearly five years and leaving prosecutors to consider a retrial while the Senate weighs an ethics investigation.

“To those who embraced me in my darkest moment, I love you,” Menendez said in sometimes tearful, sometimes angry remarks outside the federal courthouse in Newark. “To those who were digging my political grave so that they could jump into my seat, I know who you are and I won’t forget you.”

U.S. District Court Judge William H. Walls declared a mistrial after jurors were not able to reach a unanimous verdict during more than 15 hours of deliberations this week. Federal prosecutors have not indicated whether they will retry Menendez and co-defendant Salomon Melgen, both 63, on charges that include bribery, fraud and conspiracy.

The most serious of the charges carries a maximum penalty of 20 years in prison.

A wave of relief swept over one half of the Newark courtroom when the judge’s decision became apparent around 1 p.m. Menendez, the son of Cuban immigrants who rose from humble origins in Hudson County to become one of the nation’s most prominent Hispanic-American politicians, wrapped his two adult children in an emotional embrace while his other supporters and those of his co-defendant Salomon Melgen cried as they exchanged congratulatory hugs.

Prosecutors, meanwhile, expressed little emotion as the 11-week trial came to a sudden end and did not speak to reporters outside the courthouse.

“The Department of Justice appreciates the jury’s service in this lengthy trial,” a department spokesperson said in an emailed statement. “The department will carefully consider next steps in this important matter and report to the court at the appropriate time.”

The Senate majority leader said the Senate should not wait to take action and called for an ethics investigation into Menendez’s conduct.

“His trial shed light on serious accusations of violating the public’s trust as an elected official, as well as potential violations of the Senate’s Code of Conduct,” Senate Majority Leader Mitch McConnell, R-Ky., said in a statement.

The trial ended about an hour after the jury sent a note telling the judge of the deadlock.

“We have each tried to look at this case from different viewpoints, but still feel strongly in our positions, nor are we willing to move away from our strong convictions,” the note said as it was read by a defense attorney in court.

“I find that you are unable to reach a verdict and that further deliberations would be futile and that there is no alternative but to declare a mistrial,” Walls told the jurors after interviewing them one-by-one to see if a unanimous verdict was possible.

Walls rejected calls from prosecutors to instruct the jury about reaching a partial verdict — a decision on some, but not all, of the counts against Menendez and Melgen.

“The idea of seeking partial verdicts becomes a little mischievous in the context of the note because then we reach a point where we may be sliding down the slope to coercion,” Walls said.

A mistrial is a mixed bag for Menendez, who has long held that he would be “vindicated” at trial and run for re-election next year. Although he avoided a felony conviction that could have spelled the end of his political career, he now faces the prospect of a second trial in the middle of a potential 2018 campaign.

The hung jury is slightly better news for Senate Democrats — at least in the short term — who no longer have to fear losing one of their members in the midst of a pitched battle in Congress over legislation backed by President Donald Trump. Some Republicans had hoped for Menendez’s conviction and resignation by mid-January, which would have given outgoing New Jersey Gov. Chris Christie, a Republican, the chance to pick his replacement.

Taking a longer view, though, the unresolved allegations against Menendez could be a liability for state and national Democrats next year if Republicans try to build a narrative around the senator’s legal troubles and potentially a second trial.

For the U.S. Department of Justice, the mistrial adds bite to an already bitter 2017 — a year in which the corruption convictions of former New York Senate leader Dean Skelos, a Republican, and former New York state Assembly Speaker Sheldon Silver, a Democrat, were overturned following a 2016 U.S. Supreme Court decision that narrowed the reach of federal bribery law.

Despite spending more than four years pursuing the case and then calling three dozen witnesses and entering hundreds of documents into evidence at the trial, federal prosecutors were not able to convince 12 jurors beyond a reasonable doubt that Menendez and Melgen, a wealthy Florida eye doctor and longtime friend, had struck a corrupt deal to trade gifts and political contributions for official favors.

“This is what happens when you put a real, 25-year friendship on trial,” Menendez attorney Abbe Lowell said Thursday.

Jurors also failed to reach the unanimous conclusion that Menendez had “knowingly and willfully” falsified his annual disclosure forms in an attempt to conceal the gifts from Melgen, an allegation in the last count of the indictment against the men. Menendez failed to list several round-trip flights, an $875 livery service and a $4,934 stay at a Paris hotel, among other gifts paid for by Melgen, on four of those forms between 2006 and 2010.

In total, Menendez faced 12 felony counts, including six counts of bribery, three counts of honest services fraud, one count of conspiracy and one count of interstate travel to carry out bribery. Melgen faced the same charges except for the false statements accusation.

Thursday was the fourth day of deliberations since Walls replaced a juror so she could take a long-planned vacation and ordered the jury to begin its discussions from scratch.

The first round of deliberations started last week, and one juror who spoke to reporters Thursday, Ed Norris of Roxbury Township, said the jury was deadlocked from the start.

The 49-year-old heavy-equipment operator said the jury was split 10-2 in favor of acquittal on most counts.

“I just wish there was stronger evidence right out of the gate,” Norris, who favored a not-guilty verdict, said of the government’s case. “I wish they had wiretaps. I wish they something more convincing than email trails.”

The trial, which started Sept. 6, thrust Menendez into the middle of a national debate about some of the thorniest questions in politics, such as what is an appropriate friendship with a politician and what type of influence money can, or should be able to, buy.

Prosecutors described how Menendez advocated in meetings with executive branch officials for positions that could help Melgen in his multimillion-dollar reimbursement dispute with Medicare and a contract dispute one of his companies had with the Dominican Republic.

The senator also helped foreign women get U.S. visas to visit the married doctor in Florida.

In the same time period, Melgen was providing the senator trips on his private jets, letting him stay at his home in a Dominican Republic resort and making $660,000 in political contributions to entities that could help Menendez win re-election in 2012.

Defense lawyers said there was no corrupt motive behind the friends exchanging gifts and vacationing together. They argued throughout the trial that Menendez’s meetings with government officials — though they could have benefited Melgen — were “what members of Congress do” and were grounded in legitimate policy concerns.

Outside the courthouse Thursday, Menendez singled out many people for thanks, including U.S. Sens. Cory Booker, D-N.J., and Lindsey Graham, R-S.C., both of whom testified at the trial as character witnesses, and excoriated the government for the way it pursued the case.

“Certain elements of the FBI and of our state cannot understand or, even worse, accept that the Latino kid from Union City and Hudson County can grow up to be a United States senator and be honest,” Menendez said.

“Today is resurrection day,” he added, “and I want to thank God once again for allowing me to stand before you as I walked into this court house 11 weeks ago: an innocent man.”

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(Staff writer Richard Cowen contributed to this report.)

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© 2017 The Record (Hackensack, N.J.)

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