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RICHMOND--A federal appeals court reviewing the bribery and extortion convictions of a former Virginia legislator spent almost all of a 45-minute hearing Wednesday focusing on whether emails between the man and his wife should have been allowed as evidence in his trial.
Phillip A. Hamilton of Newport News was sentenced to more than nine years in prison after becoming the first state lawmaker convicted of public corruption. Hamilton was vice chairman of the powerful House Appropriations Committee in 2007 when he secured $500,000 in taxpayer money to fund a teacher training center at Old Dominion University while negotiating a job as its director.
His attorney, Lawrence Woodward, told a three-judge panel of the 4th U.S. Circuit Court of Appeals that emails between Hamilton and his wife discussing their shaky personal finances and the ODU project were protected by a legal doctrine known as "marital privilege." The emails were sent, received and stored on the computer system operated by Hamilton's employer, the Newport News Public Schools, which later adopted a policy limiting the system's use to school business.
Assistant U.S. Attorney Richard D. Cooke said U.S. District Judge Henry E. Hudson correctly ruled that Hamilton waived the marital privilege by failing to delete the emails, which authorities later seized and used as evidence to help convict him.
Appeals court Judge Diana Gribbon Motz said the most relevant U.S. Supreme Court case dates to 1934, when the justices ruled that a letter dictated to a stenographer was not protected by marital privilege. But Woodward suggested that the involvement of the stenographer distinguished that case from Hamilton's, and that the ruling fails to recognize the modern reality that spouses regularly communicate through electronic means.
"Digital pillow talk is the world we live in," Woodward said.
Cooke emphasized Hamilton's failure to delete the emails, despite his employer's warnings that messages stored in the system were subject to inspection and to disclosure under the Virginia Freedom of Information Act. Hamilton claims that the average person lacks the expertise to erase emails so that they cannot be recovered by an expert.
"There's no way short of destroying that hard drive, which was not his property, for him to get rid of those stored emails," Woodward said.
Cooke countered that Hamilton should have at least hit the delete button to demonstrate his intent to keep the communications private.
"The defendant hasn't taken the kind of steps the law expects you to take to protect the privilege," he said.
Hamilton also claims that his sentence was improperly calculated based on the amount of the appropriation to ODU rather than the approximately $87,000 he earned in two years as the center's director. The court briefly heard arguments on that point but did not address two other claims raised by Hamilton in court papers: that the government failed to prove he had criminal intent, and that the trial judge improperly failed to instruct the jury on the difference between a bribe and a gratuity.
The appeals court usually takes several weeks or months to rule.
In addition to the emails between Hamilton and his wife, the jury viewed several emails between the former legislator and others involved in the ODU project.
Former ODU officials who helped establish the teacher training center and who hired Hamilton without interviewing any other candidates testified against him and were not charged.