Federal prosecutors in the Andrew Gillum corruption case are moving to dismiss charges against the former Tallahassee mayor and Democratic gubernatorial nominee and his political mentor.
In a Monday morning filing in U.S. District court, the government “respectfully moves that this court dismiss theindictment against the Defendants Andrew Gillum and Sharon Lettman-Hicks.”
The government did not comment on the move, which came after the Tallahassee Democrat reported that jurors overwhelmingly favored acquitting the two and urged prosecutors to drop the case.
Before the move is official, Judge Allen Winsor must issue an order completely dismissing the case.
“Andrew Gillum had the courage to stand up and say I am innocent. And that is finally being recognized,” his defense attorneys David Oscar Markus, Margot Moss and Katie Miller said in a statement. “We want to thank the hard working jury who did their job and explained to the government why it should drop the case. Andrew has endured a lot over the past few years and now can resume his life and public service.”
The acquittal, partial mistrial and outright dismissal marked a major defeat for the government and its long-running and costly Operation Capital Currency investigation, which saw undercover FBI agents posing as crooked developers descend on Tallahassee starting in 2015.
The investigation led to prison time and guilty pleas in 2019 from former Mayor and City Commissioner Scott Maddox and his aide, Paige Carter-Smith, and guilty verdicts against their co-defendant, developer John “J.T.” Burnette, at the end of his 2021 trial.
But Gillum is poised to walk away a free man, even though the charges and swirling investigation took a heavy toll.
In the crucial last few weeks of the Florida governor’s race campaign in which he lost to Ron DeSantis by 32,463 votes, Gillum found himself playing defense after the release of records undermining the mayor’s explanations about his role in the long-running undercover probe.
Gillum, who wasn’t challenged on the issue by his Democratic rivals during the primary, hoped to steam past questions in the general election. But in the end, he couldn’t escape them.
Included in the drop from his one-time friend, lobbyist Adam Corey, and his GOP-connected lawyer, Chris Kise, were emails and texts showing an undercover FBI agent posing as a developer named Mike Miller arranged outings for Gillum during a 2016 trip to New York City, including a performance of “Hamilton.” Those became a key part of the government’s case against Gillum, even though jurors would unequivocally acquit him of lying to the FBI almost five years later.
The prosecutors’ first attempt to convict Gillum and co-defendant Lettman-Hicks on charges involving their alleged illegal use of campaign contributions also ended poorly for the prosecution.
On May 4, after a nearly three-week trial, jurors acquitted Gillum on a single count of making false statements but couldn’t reach a verdict on 18 other conspiracy and wire fraud counts against both defendants. Several jurors later anonymously announced that the 12-person panel voted heavily in favor of acquittal but that two “biased” jurors prevented a unanimous decision.
Prosecutors signaled their intent to try the defendants again after a partial mistrial was declared, though they clearly engaged in subsequent soul searching given the jury room math.
Federal prosecutors faced distinct tactical disadvantages were they to proceed with a retrial.
“Retrials can be quite complicated,” Daniel Richman, a professor at Columbia Law School and former federal prosecutor in New York, said days before the dismissal. “Defendants not only gain comprehensive knowledge of the government’s case, but they gain material with which to impeach them in the second case.”
However, retrials also offer prosecutors a chance to retool and refocus their case. In a Gillum retrial, it’s a given prosecutors would have changed the narrative given that half their case — involving the false statements charge and the then-mayor’s interactions with undercover FBI agents — was off the table.
Prosecutor’s ‘off-the-cuff’ intention was to proceed with a retrial
After the jury announced its decision, U.S. District Judge Allen Winsor declared a mistrial on the conspiracy and fraud counts and adjudicated Gillum not guilty on the false statements charge. He then asked the government about its next steps.
“We’ll obviously discuss it,” Assistant U.S. Attorney Gary Milligan II said. “But our intention right now at least off the cuff is that we’re going to proceed forward with a second trial.”
But that exchange happened before either the government or defense knew exactly how the jury had voted during their secret deliberations.
Several of the jurors, including two who spoke with the Tallahassee Democrat, wrote in their public statement that the jury voted 10-2 not guilty for Gillum on all counts. It voted 10-2 not guilty for Lettman-Hicks on 10 counts 9-3 not guilty on the others.
Before prosecutors announced they were dropping the case, Diane Peress, a former state and federal prosecutor in New York who teaches law at the John Jay College of Criminal Justice, told the Democrat the decision to retry is easier when juries vote heavily to convict but are prevented by one or two jurors. It’s tougher when the reverse is true, said Peress, who helped successfully prosecute wealthy hotelier Leona Helmsley in a headline-grabbing case from the late 1980s.
“I’m not going to speak for the federal government,” she said, “but they’ve got to really think this over. Retrying a case is doable, but it has its problems.”
Jason Coody, U.S. attorney for the Northern District of Florida, was expected to make the final call, possibly in consultation with the FBI, which conducted the years-long “Capital Currency” investigation into Gillum and others.
The government’s motion to dismiss may be taken up Wednesday, during a telephonic conference before Judge Winsor. The hearing will mark the first time the government and defense have met in court since the end of the first trial.
Dismissal comes after mounting pressure
After the partial mistrial, defense lawyers, including David Markus of Miami, who represents Gillum, and Mutaqee Akbar, who represents Lettman-Hicks, urged the government to abandon any plans for a retrial.
Since that time, other prominent Gillum supporters and surrogates have asked prosecutors to reconsider in what has appeared at times as a coordinated public relations campaign.
The Capital Outlook newspaper, led by the Rev. R.B. Holmes Jr., pastor of Bethel Missionary Baptist Church, opined in an editorial that a second trial would amount to “government overkill and abuse of power.”
Alan Dershowitz, a famous criminal defense and constitutional law attorney, said in an op-ed in the Democrat that the government should “accept the jury’s clear message.”
Gillum’s team posted a tweet from his official account on Friday linking to Democrat video of comments he made about the trial outside the courthouse and his own “Bring Justice Home” legal defense fund. Another tweet that seemed to acknowledge a coming second trial was deleted.
“If this isn’t a modern day witch hunt, then it’s hard to know what is,” one tweet said. “Our work is not over, as we prepare for the possibility that this sham process will continue.”
After the news broke, Gillum tweeted a photo of the court filing with the words “But God…” with the raising hands and folded hands emoji.