New York, New York — On Monday, the New York Attorney General’s Office took its first time in front of the jurors in the case of the State of New York versus the National Rifle Association and five of its current and former officials.
Yesterday, the defense had its first opportunity to challenge the accusations made in the NYAG’s case. As I keep reminding myself, all charges are accusations until proven to the point that a jury finds the evidence compelling enough to return a verdict of guilt.
The case hinges on the NYAG’s assertion that longtime leader Wayne LaPierre used the NRA’s funds for a lavish lifestyle for himself, his chosen staffers and loyalist Board Members who also bellied up at the trough of LaPierre largesse.
It’s tough to argue that offenses didn’t happen, especially given the amounts of money supporters have received in exchange for their apparently undying fealty to WLP.
After all, it’s not just a charge made by prosecutors. In a string of damming depositions, LaPierre, Woody Phillips, Josh Powell admitted to misusing funds for a variety of personal purposes. From designer suits to lavish vacations, private jets, security and gifts for friends and supporters, the New York Attorney General’s attorneys laid the gifts out in graphically illustrated detail.
Again, that’s not the entirety of the case. Not-for-profit corporations, even when they’re more than a century old, have defined roles and responsibilities for officers, directors and, yes, even members of the Board of Directors. It’s the breach of those fiduciary duties that will be harder to dismiss than honest mistakes. And, yes, there apparently were some honest mistakes made.
Despite the size of the numbers, not everything spent, billed nor done was with intent.
There’s also the fact that one of the five original defendants, Josh Powell, has already accepted a deal in which he admits to a litany of wrongdoing, he agreed to testify fully to those actions during this -and subsequent- trials.
On Tuesday, the collective defense took a different tack, separating the overall case into distinct segments they hope will allow the jury to separate the individuals -and the organization- from the actions they appear to be laying solely at the feet of the same man they have fought incessantly to protect until a few days ago: Wayne LaPierre.
The NRA portion of the case actually seemed to be trying to make the case that LaPierre’s resignation, despite being characterized as health-based, actually proved things had changed at the NRA- for the better.
But to get to that assertion meant they had to apply a proven technique to minimize a damaging fact: they acknowledged it. They readily admitted the NRA had made mistakes, but talked in detail about how they’d addressed the problems, put new rules, regulations and codes of conduct in place and were ready to move forward.
They also reminded the jurors that the National Rifle Association wasn’t three letters and the four remaining defendants. The NRA, they reminded them, was millions of members, all united by a belief in the Second Amendment and their organization.
To demonstrate an NRA member, the defense used a decidedly unique one: Kim Rhode.
Rhode, they explained, isn’t just the most successful Olympic shooter-ever, she’s also an NRA Board Member. She was possibly the best single example possible to tell jurors that even while money might have been spent irresponsibly, others funded marksmanship basics and education, safety, law enforcement training, competitive shooting, hunting and conservation. The NRA, they reminded jurors, was one of America’s oldest, largest nonprofits.
Pretty heady stuff.
As the various attorneys defended the remaining individuals, they were quick to remind jurors that “facts matter” and some of the “facts” presented by the Attorney General’s office ignored one important fact: that changes had already been made at the organization. Some of the offenses, they reminded jurors, had happened more than a decade ago.
They ended their presentations with one of the single most important facts in any trial. Prosecutors have to prove their case, the defense’s only burden is to help the jury see reasonable doubt in some of their asserted facts. Their conclusion: “hold them to the evidence. The burden of proof is theirs alone.”
The afternoon moved into the nuts-and-bolts of the trial. If the pace of afternoon sessions are any indication, the trial could go longer than the estimated six week window carved out for it in the Supreme Court schedule.
The first witness for the prosecution, former NRA Board Member Rocky Marshal, detailed how he’d become frustrated at efforts to get information - any information- from then-NRA First Vice President Charles Cotton regarding “issues” Marshal had on topics ranging from corporate governance and auditing to the Directors and Officers insurance he felt essential for board members. Instead, he said, the NRA leaders “basically told the other board members I didn’t know what I was talking about.”
The first witness to fall under the “whistleblower” category, former board of directors member Esther Schneider, told how she’d fought to get information. In exchange, she said, she found her committee assignments pulled, her questions unanswered, and her character impugned to the point that she resigned the board.
And that was Tuesday. At that point, Judge Neil Cohen looked at the clock and the jurors and decided “enough was enough” for one long day. Today, when the court reconvenes, the defense counsels will take their turns at Schneider’s testimony. It’s a virtual certainty a “profanity-laced tirade” at fellow Board Member Carolyn Meadows will be on the agenda. And it may provide the first bit of spark in what has been an otherwise dispassionate trial.
Defense attorneys will find that Schneider is less than willing to allow what she described to me as a “complete exaggeration” by LaPierre loyalists to continue to be circulated. “It was not a ‘profanity-laced tirade,’” Schneider told me, “it was one simple question -and it contained one profanity- but it was a valid question.”
It’s going to be a long trial. And it falls inside a lot of industry activities, the Trump Civil Appeal case (which is taking place in the courtroom the NRA case used until it was moved to a smaller courtroom yesterday afternoon) and that’s without any breaking news.
We’ll be running in lots of directions, but we’ll keep you posted.
— Jim Shepherd
