According to The Hill, one of the questions asked by the Stevens jury this week involved the issue of reportable liabilities. The jury’s note to the judge asked him to “please clarify the liability cost as it is not readily clear in the Senate regulations.” It is interesting that the jury would be focused on liabilities, since everything I have read about the trial has dealt only with the question of whether Stevens received reportable gifts, and has not mentioned either evidence or argument on whether Stevens had reportable liabilities.
The judge evidently interpreted the jury’s question as meaning “what dollar amount triggers a reportable liability?” While this may be the most natural reading of the note, it is difficult to believe that the jury was confused on that point. Both the “Senate regulations” and the jury instructions (Instruction No. 66) make it crystal clear that the trigger is $10,000. If the jury doesn’t understand that, it is in real trouble.
Perhaps the jury is confused about how it should determine whether a liability is more than $10,000. Or perhaps it is confused about how to determine whether something is a reportable liability in the first place. The jury instructions do not provide any guidance on this, apparently leaving it up to the jury’s common sense. The jury’s note, moreover, suggests that it has been given copies of the “Senate regulations” (presumably referring to materials such as the Senate Ethics Manual and the instruction booklet for financial disclosure) and that it is trying to interpret these regulations for itself.
This strikes me as problematic. It would seem that interpreting the meaning of the term “liability” under the financial disclosure statute is a legal question for the court, not a factual question for the jury. In particular, as I have noted before, it is not at all obvious that an unpaid and unbilled debt for goods or services constitutes a “liability” within the meaning of the Senate rules. It should not be up to the jury, but to the court, to make the determination of whether the term “liability” extends so far. Moreover, to the extent that the Senate rules are ambiguous on this point, even the court is prohibited, under separation of powers principles, from interpreting them. The jury’s statement that the Senate regulations are not “readily clear” may itself provide ammunition to the defense for post-trial motions and/or appeal.
In the meantime, whatever the jury’s question, it will apparently have to muddle through without help. According to The Hill, the judge ultimately decided not to provide it with an answer.