Analysis: John Edwards jury speaks with its silence

The judge in the John Edwards trial calls a closed door meeting with jurors on Friday. NBC's Gabe Gutierrez reports.

By Hampton Dellinger, Special to NBC News

ANALYSIS

It?s official: Jurors in the John Edwards trial do not think they are deciding a simple case.

If all 12 of the North Carolinians judging the former U.S. senator thought it was clear Edwards broke the law when billionaire buddies Fred Baron and Rachel ?Bunny? Mellon supported his mistress and his former political-aide-turned-faux-father of the Edwards-Rielle Hunter baby, they would not be starting a seventh day of deliberations. And it is not just the duration of deliberations that suggests uncertainty; during nearly every courtroom entrance for the past week, jurors have worn furrowed brows and grim visages. They have made specific requests for dozen of exhibits and readily accepted the presiding judge?s offer to have every exhibit ? hundreds in all -- brought into the jury room.?

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Even if the final answer is ?guilty,? the time and trouble the jurors are taking to render a verdict suggests that one or more of them will describe the decision of whether to find Edwards guilty of violating the Federal Election Campaign Act (FECA) as a close call.? Which raises the question: Should a jury be making such a call at all, given that the two arms of the federal government that are expert in campaign finance violations ? the Federal Election Commission and the Justice Department?s Public Integrity Section ? appear to disagree on whether Edwards? conduct was unlawful?

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The FEC-DoJ split was highlighted in motions filed just before testimony ended. The defense requested the opportunity to play for the jury a tape recording of the FEC?s July 2011 audit hearing where it closed the books on John Edwards for President, Inc. despite the DoJ?s pending indictment of the candidate. The six FEC Commissioners voted unanimously in favor of closing the books after Commissioner Donald McGahn stated that ?I can say it. (The Mellon and Baron money) it?s ?? my view it?s not reportable (as a campaign contribution).?

Hampton Dellinger, a litigation partner with Robinson Bradshaw & Hinson of Charlotte and Chapel Hill, N.C., is former deputy attorney general of North Carolina and has taught election law at Duke University Law School. In 2008, he sought the Democratic nomination for lieutenant governor of North Carolina.

Edwards also sought to introduce a 2009 Justice Department letter stating that, as a general rule, DoJ would only bring criminal charges in limited situations: ?The application of the law to the facts of a matter must at the very least be clear, and there must be no doubt that the (Federal Election) commission considers that the underlying conduct presents a FECA offense.?

Government attorneys opposed Edwards? motions and Judge Catherine Eagles ruled in prosecutors? favor.? Eagles also denied defense efforts to present two former FEC chairs prepared to testify that in their expert opinions, Edwards?s conduct did not rise to the level of a civil infraction, much less criminal wrongdoing.

Even without the former FEC chairs and the 2011 FEC audit hearing tape, the continuing deliberations are evidence that the ?application of the law to the facts? of the Edwards matter is not as far as the jury is concerned.? And because the arguments over what evidence would be admitted took place outside the jury?s presence, jurors don?t know what they don?t know about the FEC?s and DoJ?s varying views.?

Full trial coverage from NBC News and msnbc.com

Meanwhile, critics of the prosecution continue to suggest that if the federal government is going to throw the book at someone, particularly when the criminal statute at issue requires a ?knowing and willful? violation, it seems more fair to hit the person in the face rather than in the back of the head.?

Of course, the only view that matters is that of the jury. The verdict, and any descriptions jurors are willing to give on how they reached it, will offer a measure of finality (at least pending the outcome of an appeal if the decision is ?guilty?) if not clarity.

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