I’ll leave it to the lawyers to decide whether any of this stuff makes legal sense, but I’d love to see a brief from the prostitute’s lawyer claiming that being dragged into this case would make her look bad. Seriously, if we’re going to make moral judgments, bribing a Congressman is a lot worse than being a prostitute.

It’s unclear whether Geragos is just objecting to the government’s attempt to exclude a defense based on extortion for kicks, or whether the government was correct in anticipating that that may be what Wilkes intends to argue. In any case, though, Geragos seems intent on postponing any decision about the appropriateness of a duress defense until after he presents his case.

I’m not sure I follow the extortion for kicks comment, but I tend to think he’s right on his duress/necessity issue. Duress/necessity are affirmative defenses – they don’t deny the act of the crime, but provide a legally recognized â€excuse†for its commission.

If you don’t timely plead affirmative defenses, you lose your right to use them, so if Geragos raised their possiblity earlier, then he was probably being prudent. I haven’t seen the prosecution’s filing, but from Geragos’ response that you linked, they seem to be wanting the court to foreclose that the affirmative defenses of duress or coercion are even theoretically available for the type of crime at issue. If that is what they are arguing, I think they’re wrong.

On the other hand, they may be trying to argue something different and Geragos may be twisting things a bit. Gov may be arguing that evidence that other people bribe/extort etc. would not be the equivalent of a â€necessity†or duress defense and that if all Geragos has to show duress/necessity is a lot of collateral evidence about other people making/taking bribes, then that would never rise to the level of a true necessity defense and the court shouldn’t let him put in all kinds of evidence on that front that is not relevant to the defense of legal necessity.

Geragos’ pleading doesn’t characterize things that way – but I’d tend to wonder if that isn’t the actual case. But on the general topic of duress/coercion (as opposed to the specific issue of evidence of other bribery or bribery ’requirements’ from Congressmen to get contracts) I think Geragos is mostly right – he should get a chance at developing evidence on legal necessity or legal duress and evidence should be allowed or excluded based on whether or not it is relevant to the actual legal grounds of those defenses and an instruction at the end given based on whether they (Geragos’ team) meet their burden (which they have for an affirmative defense).

OTOH, the prosecution probably does have a winner if they are arguing that â€but ma, everyone else was doing it†type of evidence is irrelevant to a legal duress or coercion defense and I’d bet they definitely want to go after that hard to prevent him from being able to turn things into a three ring circus (one I’d kinda like to see myself) by going into all kinds of â€who else was doing it†discovery etc.

fwiw

EW – your difficulties (!) with the passive speak more to the limitations of English grammar in dealing with the passive, subjunctive and other moods and tenses than your â€strugglesâ€! The other two languages I am familiar with and allow a much greater degree of precision, French and German (FOUR languages plus English? WOW!).

Legally, I don’t get the necessity or duress arguments in Wilkes’ context, which seems to be that he was doing what he was doing because that’s what was necessary to TCOB – like Mr. Wyatt was apparently doing in bribing foreign petro-dictators. To plead necessity, which is an affirmative defence and requires evidence on the part of the defendant, the defendant is saying that he should not be held liable for his actions as a crime because their conduct was necessary to prevent some greater harm – which in this case would be, what, that an honest tendering process may take place? Horrors!

Same applies for duress or coercion or extortion, also an affirmative defence, and the defendant argues that he should not be held liable because the actions that broke the law were only performed out of an immediate fear of injury – again, hard to argue that the loss of improper contracts was what the English Common Law had in mind when the doctrine was founded.

More legally sloppy greymailing by Geragos, but maybe there is a legal method to this madness than I am able to see.

Here is part of the rub. In most state and local courts, discovery in criminal cases flows both ways ahead of trial; like most all civil courts now do (including federal civil). However, there are still what I consider to be archaic rules in federal criminal cases where the prosecution is not obliged to submit certain witness statements and other evidence behind specific witnesses until those witnesses have taken the stand and testified in the government’s case in chief. Geragos is basically maintaining that turnabout is fair play and he should not have to fork over the material behind his witnesses prior to him deciding whether or not to call them to the stand and actually doing so.

I, and I said this a few days ago, believe that Wilkes defense is entitled to attempt what has been described here as â€necessity†or â€duress†as an affirmative defense and explanation of his conduct. for another thing, I think he is entitled to present this evidence under the historical concept of â€completing the storyâ€; in short, if a certain storyline is central to the case, you are entitled to have the whole of it known and considered by the jury. This is not to say I think this will work; but I think it is well within the ambit of Wilkes presenting his case. I bet dollars to donuts that where Wilkes is going with the hooker bit is that it is the Congressmen, including Cunningham, that used and frequently called these hookers to service, so it was not really Wilkes’ doing. If you want my guess, the court will make Geragos turn over his stuff, but will let him, with an incredibly short leash, try to eek out his case. My further guess is that by the time both sides of the evidentiary presentation are done, the court will not find enough of a basis to allow any jury instruction on the defense and will restrict the way it is argued in closing statements by Wilkes so as to prohibit what would effectively at that point be a nullification argument. Just a wild assed guess though.

illiterate, that is

Geragos seems to be saying, â€You can have the hooker, but it’s gonna cost you some partying Congressmen.â€

And, I think the sub-text is: We’ve got either a hooker, or a suitable substitute, for everything you’ve got on our guy Wilkes – how many Congressmen, or Senators, or White House types do you have over there?