The retrial of former state Republican chair and senator Gilbert Baker for a bribery scheme is scheduled for Nov. 7 and the Justice Department last week asked Judge Price Marshall for changes in earlier instructions on how the jury should consider evidence in the case.

In a nine-page motion, Acting U.S. Attorney Michael Gordon asked, among others, that the judge issue a specific order on how the jury considers evidence that Baker solicited campaign contributions for judicial candidates before it was legal under state law. Baker solicited the money for then-Judge Michael Maggio (as well as for Supreme Court candidate Rhonda Wood). The case alleges that the campaign contributions induced Maggio to reduce a $5.2 million nursing home negligence jury verdict against a Michael Morton nursing home to $1 million. Maggio pleaded guilty. Morton, source of many of the contributions, was not charged. Baker’s first trial ended in a hung jury.

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The federal case does not include the state campaign finance violations.  But:

During the upcoming trial in this matter, the United States intends to introduce evidence that BAKER raised campaign contributions for former Judge Michael Maggio prior to the start of the period during which candidates for judicial office in Arkansas are permitted to begin raising campaign funds. The United States also intends to introduce evidence that BAKER made “strawman” donations through friends of his whom he convinced to donate to Maggio’s campaign, reimbursing them with funds from a trade association supporting tort reform. In addition, the United States intends to submit evidence to show that BAKER appointed individuals without their knowledge to serve as officers for a specific PACs that he created, and that he used those PACs to funnel contributions to Maggio’s campaign while hiding the true source of the donations.

In Baker’s first trial, the judge said the jury could consider this as “background, context” for the charges he did face. The filing continued:

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… the United States believes that this Court’s description of the evidence as merely “background” or “context” carries the potential to minimize the evidence in the minds of the jurors, particularly considering that the jurors are laypersons. This concern is deepened by the fact that, after this Court had given the limiting instruction, one of the jurors inquired as to whether the jury could consider the evidence at all.

The government wants an instruction that acknowledges the state violations are not an element of the federal charge but also says “you may consider this evidence as proof of Baker’s intent, preparation, plan, knowledge, or the absence of mistake, in deciding whether Baker committed the federal crimes charged in the Indictment. It’s up to you to determine what weight, if any, to give the evidence.”

The motion also asks the judge to instruct the jury that it could consider Baker’s “false, exculpatory statements” as pointing to the consciousness of guilt. The judge had declined to instruct the jury on such statements in the first trial.

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The motion also asks to be allowed to question potential jurors about their view of circumstantial evidence. Gordon said a “fair amount” will be presented, such as text messages among people involved in the case.

The government wants to give this instruction to the jury:

There are two types of evidence that you will be asked to consider in this case; one is direct evidence and the other is circumstantial evidence. Direct evidence comes from witnesses who can describe what they saw and heard. Circumstantial evidence is testimony or a document that gives you a reasonable basis for drawing a conclusion about what happened. The Government can meet its burden to prove the defendant guilty either by direct evidence or by circumstantial evidence. Do you have any problem with that? Would any of you have a problem giving equal consideration to circumstantial evidence? Would any of you refuse to convict if proof of the defendant’s guilt was based in part on circumstantial evidence?

When the parties agreed to a delay in the trial in April, there was some speculation it could signal a potential settlement of the case. The motion on preparing jury instructions suggests otherwise.

Baker was indicted in January 2019. At trial, he was acquitted of a conspiracy charge, but the jury failed to reach a verdict on eight counts — one involving bribery of an agency (the judge’s court) receiving federal funds and seven counts of wire fraud involving the transfer of money in the alleged scheme. Maggio has completed his prison sentence, shortened because he cooperated in the prosecution of Baker.

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