RICHMOND—— Sure, Phil Hamilton showed bad judgment. Unethical? Some might say that. Disturbing? Could be.
But it doesn't make him a criminal.
He is accused of parlaying his legislative influence in the General Assembly into a $40,000-a-year part-time job at Old Dominion University. The allegations have already cost Hamilton his 93rd District House seat and the ODU job. He and his wife have also filed for bankruptcy.
Last week, U.S. attorneys David Harbach and Robert J. Seidel Jr. spent three days laying out the government's case against Hamilton before a jury and Judge Henry Hudson. Challenging them at each turn was Andrew Sacks, a criminal defense attorney from Norfolk.
The trial resumes Monday with Hamilton expected to take the stand.
Prosecutors say Hamilton filed a budget amendment in the 2007 General Assembly session to create a teacher training center that eventually was established at Old Dominion University.
Months before that and continuing into the session, he was soliciting ODU officials for a job at the center. He even got down to the nitty-gritty of salary details and how he would spend his time — all before the center was ever created.
Sacks does not dispute those two facts. After all, an extensive chain of emails has established that Hamilton was talking to ODU about a job while pursuing the funding. At times, the two subjects come up in the same email.
However, nowhere does Hamilton force the issue in a way that proves criminal intent, the defense attorney says.
"At best," he says, "the government has thrown some dirt."
In the emails, Hamilton supports the center because he says it is a good idea, and he speaks with some authority.
Sacks has elicited testimony that Hamilton had tried earlier to establish teacher training centers in ways that didn't involve ODU or a job for himself. As a legislator, he headed a commission on educational leadership well before the current controversy ever surfaced.
Witnesses testified that Hamilton was considered a good employee of Newport News schools, and that ODU considered him qualified to direct the center.
Nowhere in all the emails does it say, "I have to have this before I do that," Sacks told the jury last week.
Yes, Hamilton talks about compensation with ODU officials, but he does not say, "I will only do this if you tell me how much I will be paid. There is no such email," Sacks said.
Sacks concedes that the behavior might not look good – might even seem offensive — but that's not the issue, he says.
"The jury would have to find him guilty because they don't like what they see," he said.
Another focus of Hamilton's defense will be the credibility of the government's two main witnesses, both former ODU officials who testified under agreements to avoid prosecution.
David Blackburn was the man who hired Hamilton. He was working under the direction of William Graves, the former dean of the education school.
Blackburn said Hamilton was hired "because he secured the funding." Blackburn also hid the truth of Hamilton's job when members of the Senate Finance Committee visited ODU to learn more about the center.
He didn't provide information to a committee staffer because "I didn't want her to know what was going on – that money had been exchanged for a job."
But Sacks hammered away at Blackburn's credibility during cross-examination. He walked through at least eight instances of Blackburn providing bad information during previous investigations, even when he was under oath.
Blackburn even contradicted his own testimony under cross-examination. He testified that he lied to a grand jury in December 2009 out of fear of losing his job. But Sacks later pointed out that Blackburn had already lost his job by then.
In effect, Blackburn recanted his own testimony when he lied about lying.
Hudson last week dismissed Sacks' argument to acquit Hamilton because the evidence had fallen short, but he agreed that credibility is an issue.
"This is a somewhat close case in certain aspects," Hudson said.