Well, former U.S.

Senator Bob Menendez is asking a federal judge to throw out his corruption conviction and grant him a new trial after it was discovered that jurors were accidentally shown improper evidence while deliberating on his charges.

The request comes two weeks after prosecutors alerted the judge and Menendez's defense attorneys that they mistakenly gave jurors several pieces of evidence that weren't redacted as ordered by the judge, but argued it didn't warrant a new trial because jurors likely never saw them among the thousands of other documents submitted for evidence.

Defense attorneys for Menendez and his two co-defendants disagree.

For more on what could happen next, I'm joined by attorney and former federal prosecutor Brian Whistler.

Brian, good to see you.

So let me ask you, given your background, how does something like this first of all happen?

I mean, these were documents that were uploaded to a laptop that the jurors used so that they could review evidence.

How does a thing like this happen?

Yeah.

Well, good to see you, Brianna.

And thanks for having me.

You know, this kind of thing does happen.

Certainly occasionally.

But given the high volume of evidence that's presented in a white collar case like this, certainly, prosecutors have to be conspicuous about how they address the evidence forward because they want to avoid situations just like this, but certainly in this instance, we have two very different competing views of what happened, how it happened and the impact, of, of this, mistake here.

Is it a serious breach?

I mean, you've obviously been through enough trials.

Is this something where you could see it warranting granting an entire new trial?

Not just for Menendez, by the way, but also the two co-defendants.

Yeah, I think this one is is is significant, for for a couple reasons, but probably the most prominent, which is it does raise, constitutional implications under the Sixth Amendment and implications under the Speech and Debate Clause in article one in the Constitution.

And that sets this up for a much more notable review than the average mistake evaluation, if you will, by the trial court on the impact of the outcome.

But as you've probably seen, the prosecution has said in effect, this is a harmless error.

It's inadvertent.

It shouldn't have an impact on the outcome, largely because of the high volume of evidence and the overwhelming evidence of guilt, to each of the defendants.

Defense, of course, is rightly saying, no, this has significant constitutional, implications.

And the prosecution cannot rebut the presumption of prejudice that that arises here.

Well, and because, I mean, jurors are tasked with taking their time in deliberating, with reviewing each piece.

This is the argument that we're hearing from the defense, right.

That essentially assumes that they wouldn't have come across one of these documents.

Which had already been ordered to be redacted.

So does that strengthen their case?

The fact that these prosecutors initially sought to have this evidence included in the case.

Yeah, it's it's it's it's it was a heavily litigated matter, pretrial.

And as the defense has rightly stated, you know, the government said this these are critical pieces of evidence when they asked the court to reconsider its redaction decision, retrial.

So it's a very good fact for the defense.

And as you noted, jurors under the law are presumed to follow the instructions that are given to them.

There is a presumption that they review the evidence carefully.

The fact that there was a lot of evidence and it's unlikely that the jurors saw this is probably not the best argument for the prosecution on this particular one.

And I should note, I mean, as you mentioned, the speech and debate clause, essentially this evidence was the one item that tied the former senator to the millions of dollars of military aid to Egypt, which was the crux of his charge of acting as a foreign agent.

But let me ask you, Brian.

Sentencing is scheduled for the end of January.

So how quickly would we need to see the judge make a decision here?

Well, certainly, time is of the essence.

I mean, I think the court is probably inclined to sort this out in a hearing.

Pre-sentencing.

It's probably unlikely that any jurors would be called to kind of share what the impact of this was on them, because under the Second Circuit's law, that's highly disfavored.

It's not.

Not saying that wouldn't happen under any circumstance, but it's pretty unlikely.

But I think the court is obliged to sort out what is the overall impact.

And there's a lot to sort through here.

Given the amount of evidence, the number of witnesses and the number of documents juxtaposed with the constitutional issues, that are certainly very significant.

Brian Whistler for us.

Thanks for helping us, sort this out.

I'm sure we'll be talking soon.

Thanks, Brian.

Good to see you.

My pleasure.