According to a recent report, the legal team in the federal bribery case against former DeKalb County Commissioner Sharon Barnes Sutton is considering a strategy that seems like a diminished capacity defense.
Sutton is charged with taking two $500 bribes from a contractor back in 2014. During Sutton’s two terms in office, her name came up in other questionable affairs, like paying her then-boyfriend’s companies $34,000 mostly for advice on how to be a commissioner. The bribery charges are what ended up sticking.
Her defense lawyer has told the court that Sutton suffered a “thoracic aortic aneurism” and a “lacunar stroke” in 2012, two years before the alleged bribes took place. The lawyer says “the stroke has caused relevant cognitive damage, which must be further explored to effectively represent Ms. Sutton.”
It is not known whether the plan is to argue that Sutton didn’t know what she was doing back when the alleged bribes occurred or if her capacity has deteriorated in recent years such that she cannot stand trial.
She has denied the allegations and has, in the past, called such investigations “witch hunts.” Whatever the course this one takes, it’s a sorry tale of a now-beaten pol in deep trouble, charged with grubbing around the lower levels of corruption.
But it’s not just local pols charged with malfeasance who are hoping to shirk responsibility. Ducking accountability goes all the way to the Oval Office. In fact, The Former Guy also loves the term “witch hunt!”
For nearly a year, the office of Fulton County District Attorney Fani Willis has been investigating to determine if former President Donald Trump was trying to subvert an election. The probe was kicked off by Trump’s audacious call to Georgia Secretary of State Brad Raffensperger in January 2021 when he asked Raffy to “find” him the 11,780 votes he needed to win Georgia.
Last month, Willis got Fulton judges to sign off on a special grand jury to look into the matter. This week, she asked for FBI help because Trump keeps fanning the flames, this time calling those conducting investigations in D.C., New York and Atlanta “radical, vicious, racist prosecutors” and urging his followers to protest. Hard.
Shades of the Jan. 6 Capitol insurrection? Yup.
Former DeKalb County DA Gwen Keyes Fleming has written that Trump faces “substantial risk of indictment” here, being part of an orchestrated effort to undermine the election.
But there is the question of “mens rea,” which is Latin for “darned right, the dude knew exactly what he was doing.” And prosecutors, if they ever hope to win The State of Georgia V. Donald J, Trump, will have to prove The Donald knew he was trying to illegally overturn an election. In a recent article, my colleague Tamar Hallerman wrote that proving that so-called “state of mind” might be difficult.
Who knows what he was thinking? It’s like a defense lawyer arguing, “No, my client was not committing an armed robbery. His gun was wet because of the rainstorm outside and he came in and waved it around the convenience store to dry it off.”
Some lawyers have said if Trump believed the debunked conspiracies that the election was stolen from him and that all he was doing was to seek a fair count, it would be difficult to convince a jury there was any criminal intent.
It may be one of those times that being a delusional, narcissistic, habitual liar comes in handy.
Don Samuel, who’s about as good a defense attorney as there is and is no Trump fan, doesn’t see a provable crime in the former president’s call to Raffensperger.
“He’s a sloppy talker. He exaggerates. He’s a blowhard,” Samuel told me. “I don’t specifically see him saying, ‘Create false ballots or destroy Biden votes.’ He doesn’t say, ‘Mr. Raffensperger, I want you to commit a crime.’ "
Well, what about the crime boss who tells underlings, “Take care of our friend,” meaning to put cement shoes on somebody?
Yeah, there’s that, Samuel agreed, “But it works both ways,” he added. “What about the football player who says ‘Go kill ‘em!’ They don’t really mean that.”
Besides, Samuel said, there is no way in our hyper-divided society you can find 12 jurors to ever agree on criminality in this case. “It’s like the second impeachment trial; it was a waste of time and resources,” he said. “It ended the way you thought it would.”
I called former Fulton County Superior Court Judge Gino Brogdon. He said if Willis ever brings a case against Trump, she should not overcharge it. “It’s important to keep it simple, stupid,” he said. “Anything else will leave room for political interference and political pollution.”
Ultimately, Brogdon thinks it might be more straightforward to go after Trump on possible criminal behavior in running his businesses in New York.
The former judge said the political interference case in Georgia could be a “Pandora’s box. It’s a big step to indict a former president. Many people (in the GOP) will say ‘This is a political prosecution and we’ll get you back.’ The beast set forth to undermine the elections has so many tentacles that people might pass out to see how deep it goes. It could be more frightening than finding out your mother is a witch.”
Yikes.
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