Is Phil Hamilton “not guilty?”
By Brian Kirwin | Monday, May 9th, 2011 | VirginiaTo the press, and virtually everyone I’ve talked to in the past year, the case against former Del. Phil Hamilton was a slam dunk.
After reading the Daily Press this weekend, I’m not so sure.
Hamilton is charged with bribery and extortion. From the indictment, those are defined as follows:
Bribery “corruptly solicit, demand, accept and agree to accept a thing of value…intending to be influenced and rewarded”
Extortion “knowingly and unlawfully delay and affect and obstruct … commerce and the movement of any article or commodity in commerce”
Here’s the problem. I haven’t seen any evidence that Hamilton demanded anything. He solicited. He accepted. He agreed. But where’s the proof that he demanded?
I also haven’t seen any evidence that he obstructed the funding of the ODU center until he got the job he wanted. In fact, Hamilton has pushed for things like this for years.
“Sacks has elicited testimony that Hamilton had tried earlier to establish teacher training centers in ways that didn’t involve ODU or a job for himself. As a legislator, he headed a commission on educational leadership well before the current controversy ever surfaced. (Daily Press)”
That seems problematic for the prosecution to me. Hamilton was pushing this idea before ever talking about being hired through it.
To be guilty, it looks to this non-lawyer that Hamilton would have to “demand” something and “obstruct” the something if he didn’t get it or until he did.
If that’s true, I don’t think he’s guilty.
OK, lawyers (and I know you read BD), shoot me an anonymous email, or better, post in the comments if I’m off base.
But if what was reported in the last week is the extent of the prosecution’s case, I can’t see how they’ve proven it.
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About the author
The right wants to jeer him. The left wants to censor him. Moderates usually want both. Brian Kirwin is a political consultant and public relations strategist in Virginia Beach with a lightning-rod flair. Brian also serves on the VB Arts & Humanities Commission and frequently appears on Hampton Roads theatrical stages, if only to prove that all actors aren’t liberals. Kirwin’s columns stir up debate and hit the political scene with no punches pulled.
Comments
9 Responses to "Is Phil Hamilton “not guilty?”"
Given that this is a case of a state legislator accused of extorting state funds from a state university, my question is why this is being prosecuted by the U.S. Attorney in federal court. Why is this matter any of the federal government’s business in our federalist system?
Ken: Because public corruption is a federal matter, no matter if it happens at the local, state or federal level. Otherwise, officials who are chummy with the defendant might be inclined not to prosecute.
Brian; Not being a lawyer, not sure of your legal reasoning. I would point you to one of the emails that Hamilton sent to one of the ODU folks about needed to have the matter (his employement) settled before session (when he introduced the budget amendment). When the initial stories came out that seemed to be “the smoking gun” to me. The proscution’s case didn’t make Phil look good, particularly the part where he told one of the ODU folks to pretend he was the director when a general assembly commission was checking the program out.
But you could very well be right about the technical violation of the statute. That might end up coming up on appeal.
The dumb thing is, Hamilton could have avoided all of this if he’d just had someone else — perhaps the delegate who actually represents ODU — carry the budget amendment in the House.
Brian,
Folks can form their own opinions of innocence and guilt. For facts as reported you should keep in mind that federal prosecutors in particular tend to not talk to the press (at least while the case is ongoing). So quotes in articles come from reporter’s notes based on witness testimony, usually no review of documentary exhibits, and quotes from defense counsel. Ignoring the facts presented I will help explain the indictment.
To understand the two crimes you need to look past the indictment to the federal code sections referenced in the indictment regarding “bribery” and “extortion.”
The important part of “bribery” to understand is under 18 U.S.C. § 666(a)(1)(B): being an agent . . . of a State, local, or Indian tribal government . . . corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded . . .”
This means you can have a corrupt solicitation, OR a corrupt demand, OR an acceptance with intent to be influenced or rewarded, OR an agreement to accept with intent to be influenced or rewarded. You do not have to prove all four to receive a guilty verdict. I would suggest “agreement to accept with the intent to be influenced or rewarded” is the easiest to prove.
The important part of “extortion” is under 18 U.S.C. § 1951: “The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
Without delving into case law on this issue I would say “obtaining property from another under color of official right” is pretty vague. If it is vague, and in a criminal statute, it is hard to make it stick.
I am not a criminal defense attorney, but sometimes I do have to understand the process and law to advise clients.
Brian,
How much is Hamilton paying you, an amount that you did not demand, to not obstruct this posting on BD?
So Brain walks into a bank. He says:
“Hey misses teller lady, I would really like you to give me all the money in your drawer, right now.”
Did he commit a crime?
Brian was correct: “To the press, and virtually everyone I’ve talked to in the past year, the case against former Del. Phil Hamilton was a slam dunk.”
Jury in: Game over…
It appears that Barney Frank can get his boyfriend a job at Fannie & Freddie but Phil Hamilton is found guilty.
Having interned for Del. Janis a criminal defense attorney Henrico, Mr. Hamilton is so guilty and I hear now he is the starter at a local golf club…wow what a change next up James County Regional Jail with Big Bob.
[...] only spent a few hours working at over a two year period. Some out there in blog land were questioning whether he was really guilty by the strictest interpretation of the law and to that I think they have a point. [...]
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