Washington Lawyer - March/April 2024 - 40

ON FURTHER REVIEW
When a Targeted
Approach Works
By Lloyd Liu
I
n my last column, I discussed
with David Markus the trial of
Andrew Gillum in United States
v. Gillum and ways of thinking
about risk-taking from the defense
perspective. Here I continue my
look-back on the trial with Markus's
partner, Margot Moss, focusing on
her opening statement for Gillum.
The government's opening statement presented
an organized but complicated set of facts
in support of its allegations of corruption
against Gillum. Initially, undercover FBI agents
had attempted to bribe Gillum as part of a corruption
investigation. The bribery effort failed,
so the government ended up indicting Gillum
on different theories. Despite the unsuccessful
bribery attempt, the government nevertheless
anticipated introducing evidence related to the
bribe.
The government had to grapple with the complexity
of the underlying facts, and did so by acknowledging
that outright: " There is not going
to be any magic moment in this, where you look
at it and go, Ah-ha, that's the key thing. There
are a lot of different pieces, and you are going to
have to understand them all, and they are all going
to have to be put together for you. " 1
This gave Moss and the defense an opportunity
to provide a simpler narrative. Initially, the
defense team intended to present evidence to
show that the government's investigation into
Gillum was motivated by racial animus - because
Gillum is an African American politician.
But that changed when the court issued a pretrial
order prohibiting the defense from making
arguments about or otherwise referencing racial
profiling. The trial team therefore pivoted.
40 WASHINGTON LAWYER
* MARCH/APRIL 2024
Moss wasted no time in her opening: " This case
is about what happens when you put a target
on someone's back. " 2
She continued, " And then
they twist and they force evidence into the
direction of that target. And when evidence
doesn't exist, they guess and they speculate
and they make believe that it hits the target,
even when there is nothing to support it. " 3
So " target " became the defense's theme, rebutting
and explaining the government's evidence
against Gillum and, subtly but not blatantly,
suggesting that there was a racial motive. More
importantly, it also offered an affirmative reason
to acquit.
As Moss explains, " The way we used it was to
have the jury focus on the lengths to which the
FBI went in order to go after Andrew Gillum,
no matter what. They look at all of Andrew's records,
everything that has to do with the Gillum
family, and they don't find anything. They
try to bribe Gillum themselves. They use all
these records. They wine and dine him. They
not only go after [Gillum], they [also] go after
his family. They go after his friends. It was an accumulation
of things that the FBI was doing. It
was not that Gillum was engaged in bad acts. It
was what the FBI was doing to hit their target. "
The theme also made an impact. As another
lawyer has suggested, " You want vivid images
that will linger during the testimony and guide
the jury in their deliberations. One way to do
this is to start your opening with a crisis. Every
case has a crisis of sorts. " ⁴
After putting the FBI's motivations at issue, it
could have been tempting to be overbroad
and attribute those motivations to the government
as a whole. Moss, though, was deliberate,
taking a much more targeted approach based
on the facts, recognizing that every representation
to the jury is a promise that the defense
has to fulfill.
" We had to be careful about suggesting the
prosecutor was improperly targeting Gillum, "
Moss explains. " The prosecutor came across in
his opening as very matter of fact, very low-key.
We could not put the focus on the government
as a whole. So, we put the emphasis on the
FBI. "
The target theme ended up reframing the government's
key evidence, specifically FBI audio
recordings of Gillum. The government focused
on a February 2017 audio recording of Gillum in
which the undercover agents, posing as real estate
developers, sought favors in exchange for
campaign contributions as Gillum was contemplating
running for governor of Florida. Gillum
was recorded saying, " You need to separate
those two things in your mind. The one has
nothing to do with the other. " 5
In its opening,
the government accused Gillum of " attempting
to distance himself " from the alleged wrongdoing:
" [H]e wants something to happen, but he
doesn't want to have to take responsibility for
it, and he's separating himself from this. " 6
Talking about the same recording, Moss countered,
" Now, what you need to know [about the
recording] is that this is February of 2017. Andrew
hasn't even filed to run for governor yet.
This man is talking about giving him a hundred
thousand dollars. This is a crazy amount of
money to anybody. This is . . . nearly what
Andrew makes in a year. So [the undercover
agent] says to him, 'I want to donate $100,00 to
your campaign.' And then the next breath, [the
agent] says, 'And these are the projects that are
important to me.' Without missing a beat, Andrew
says, 'No. You need to separate those two
things in your mind. The one has nothing to
do with the other.' " 7
Moss then later noted, " [T]hank goodness we
have these recordings. And you will hear these
recordings. And thank goodness they are required
to give us these recordings because
they will show that Andrew Gillum will not take
a bribe. " 8
continued on page 45
Washington Lawyer - March/April 2024

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