Skip to main content

Edwards jury got it exactly right

By Alan M. Dershowitz, Special to CNN
updated 9:57 PM EDT, Thu May 31, 2012
John Edwards makes a statement outside the courthouse.
John Edwards makes a statement outside the courthouse.
STORY HIGHLIGHTS
  • Alan Dershowitz: Jury made the right calls on a weak government case
  • He says John Edwards should have been left alone to deal with his misdeeds
  • Prosecutors placed impossible burden on jury of divining Edwards' real intentions
  • Dershowitz: This was part of trend toward criminalizing policy differences and personal sins

Editor's note: Alan Dershowitz is the Felix Frankfurter professor of law at Harvard Law School.

Cambridge, Massachusetts (CNN) -- The jury in the John Edwards case rendered exactly the right verdict. Of course they couldn't make up their mind on most of the charges. No rational person could. The judge essentially instructed them to get into John Edwards' mind (as well as into the minds of several other actors in this political soap opera) and to determine precisely what his intention was in receiving money from friends.

If his intention was primarily personal (to try to save his marriage and not humiliate his wife any further), then there was no crime. But if his intent was primarily political (to help him get elected president), then there may have been a crime. Precisely how many angels were dancing on the head of that pin?

No one, not even Edwards himself, could calculate the precise quantification of his complex and multiple intentions. This kind of decision should never be the subject of a criminal case, and the jury was right to find a reasonable doubt as to one of the charges and to throw its hands up as to the others.

Edwards after mistrial: I did a lot that was wrong

Alan Dershowitz
Alan Dershowitz

All reasonable people should now hope that the Justice Department sees the light of day and does not seek a retrial. The jury has spoken, though ambiguously, and there is no reason to believe that another fairly picked jury will be able to discern the precise intentions of the actors with any greater certainty or precision.

This entire farce of a trial is part of a larger problem that infects not only America but other Western countries as well: the criminalization of policy differences and of personal sin.

No one can justify what John Edwards did to his family, to American politics and to himself. He will forever pay a steep price for his selfishness and arrogance. But it is not a price that all Americans should have to pay by the distortion of the criminal justice system into a Rorschach test, in which the jury is asked to interpret vague action and attribute precise intentions to actions done with mixed motives.

Edwards: "I did a lot that was wrong'
Edwards trial ends in hung jury
2008: John Edwards admits affair

The criminal law should be limited to what I call "Hamlet decisions." Before a person is charged with a serious crime, the government should have to prove beyond a reasonable doubt that the defendant actually engaged in a "to be or not to be" decision -- to be a felon or not to be a felon, to step over a clear line that separates criminality from sin. There is no reason to believe that John Edwards ever made that decision, because the law governing his conduct is vague, subjective and unclear in the extreme.

John Edwards: Once a cheater, always a cheater?

At the time of the founding of our republic, there was a common expression that said that a criminal law must be so clear that a potential defendant "can read it while running and still understand it." The law under which Edwards was tried was so unclear that a bevy of lawyers could not understand it while sitting and studying it for hours.

So let the remaining charges be dropped against John Edwards. Let him be relegated to his deserved place in history, and let us reserve the criminal law for real felons who knowingly violate clear criminal statutes. If Congress wants to criminalize what Edwards was accused of doing, let it enact a clear law that gives fair warning to all politicians that they may not accept any gifts, regardless of intent. I doubt Congress will pass such a law.

iReport: What is your reaction to the jury's decision?

The opinions expressed in this commentary are solely those of Alan Dershowitz.

ADVERTISEMENT
Part of complete coverage on
updated 3:18 PM EDT, Thu April 24, 2014
Frida Ghitis says as violence claims three U.S. doctors, the temptation is to despair, but aid to Afghanistan has made it a much better place
updated 2:33 PM EDT, Thu April 24, 2014
Ruben Navarrette says in California, Asian-Americans are against the use of racial criteria in public colleges.
updated 2:44 PM EDT, Thu April 24, 2014
Heidi Schlumpf says if the Pope did tell an Argentinian woman married to a divorced man that she could take Communion, it may signify a softening of church rules on the divorced and sacraments
updated 12:29 PM EDT, Thu April 24, 2014
Norcross, Georgia, Chief of Police Warren Summers says the new law that allows guns in bars, churches and schools will have unintended dangerous consequences.
updated 1:42 PM EDT, Thu April 24, 2014
Mel Robbins says social media is often ruled by haters, and people can be brutally honest.
updated 12:44 PM EDT, Thu April 24, 2014
Mike Downey says the golf purists can take a hike; the game needs radical changes to win back fans and players.
updated 12:41 PM EDT, Wed April 23, 2014
Robert Hickey says most new housing development is high-end, catering to high-earners.
updated 9:17 AM EDT, Wed April 23, 2014
Alexander Motyl says as Russian President Putin snarled at Ukraine, his foreign minister was signing a conciliatory accord with the West. Whatever the game, the accord is a major stand down by Russia
updated 8:29 AM EDT, Wed April 23, 2014
Les Abend says at every turn, the stowaway teen defied the odds of discovery and survival. What pilot would have thought to look for a person in the wheel well?
updated 7:04 AM EDT, Thu April 24, 2014
Q & A with artist Rachel Sussman on her new book of photographs, "The Oldest Living Things in the World."
updated 3:58 PM EDT, Tue April 22, 2014
Martin Blaser says the overuse of antibiotics threatens to deplete our bodies of "good" microbes, leaving us vulnerable to an unstoppable plague--an "antibiotic winter"
updated 1:37 PM EDT, Tue April 22, 2014
John Sutter asks: Is it possible to eat meat in modern-day America and consider yourself an environmentalist without being a hypocrite?
updated 11:38 AM EDT, Tue April 22, 2014
Sally Kohn notes that Meb Keflezighi rightly was called an American after he won the Boston Marathon, but his status in the U.S. once was questioned
updated 8:56 AM EDT, Tue April 22, 2014
Denis Hayes and Scott Denman say on this Earth Day, the dawn of the Solar Age is already upon us and the Atomic Age of nuclear power is in decline
updated 4:36 PM EDT, Mon April 21, 2014
Retired Coast Guard officer James Loy says a ship captain bears huge responsibility.
updated 1:08 PM EDT, Mon April 21, 2014
Peter Bergen says the latest strikes are part of an aggressive U.S. effort to target militants, including a bomb maker
updated 9:45 AM EDT, Mon April 21, 2014
Cynthia Lummis and Peter Welch say 16 agencies carry out national intelligence, and their budgets are top secret. We need to know how they are spending our money.
updated 8:35 AM EDT, Mon April 21, 2014
Julian Zelizer says President Obama knows more than anyone that he has much at stake in the midterm elections.
updated 8:55 AM EDT, Tue April 22, 2014
Eric Sanderson says if you really want to strike a blow for the environment--and your health--this Earth Day, work to get cars out of cities and create transportation alternatives
updated 10:08 AM EDT, Mon April 21, 2014
Bruce Barcott looks at the dramatic differences in marijuana laws in Colorado and Louisiana
updated 4:47 PM EDT, Fri April 18, 2014
Jim Bell says NASA's latest discovery supports the notion that habitable worlds are probably common in the galaxy.
updated 2:17 PM EDT, Fri April 18, 2014
Jay Parini says even the Gospels skip the actual Resurrection and are sketchy on the appearances that followed.
updated 1:52 PM EDT, Fri April 18, 2014
Graham Allison says if an unchecked and emboldened Russia foments conflict in a nation like Latvia, a NATO member, the West would have to defend it.
updated 9:11 AM EDT, Fri April 18, 2014
John Sutter: Bad news, guys -- the pangolin we adopted is missing.
updated 2:25 PM EDT, Mon April 21, 2014
Ben Wildavsky says we need a better way to determine whether colleges are turning out graduates with superior education and abilities.
updated 6:26 AM EDT, Fri April 18, 2014
Charles Maclin, program manager working on the search and recovery of Malaysia Flight 370, explains how it works.
updated 8:50 AM EDT, Fri April 18, 2014
Jill Koyama says Michael Bloomberg is right to tackle gun violence, but we need to go beyond piecemeal state legislation.
updated 2:45 PM EDT, Thu April 17, 2014
Michael Bloomberg and Shannon Watts say Americans are ready for sensible gun laws, but politicians are cowed by the NRA. Everytown for Gun Safety will prove the NRA is not that powerful.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT