By Jen McCaffery

Archives Reprint

    One day after a federal jury in Lynchburg deadlocked on whether to convict former National D-Day Memorial Foundation president Richard Burrow on four fraud charges in December 2002, U.S. Attorney John Brownlee said his office would re-evaluate the case.

    After more than a year of poring over trial transcripts and continuing their investigation, federal prosecutors have tweaked their case and, earlier this week, secured 12 new charges against Burrow.

    When it comes to retrials, both the prosecution and the defense have the benefit of knowing what worked and didn't work from the first trial, said Washington and Lee law school professor Daryl Brown, former federal prosecutor Thomas Gallagher and Richmond defense attorney Steven Benjamin.

    But the government may have the advantage, these three legal experts say.

    "Clearly, the government will have an advantage because they are still investigating and can still bring charges," said Gallagher, a federal prosecutor in Pennsylvania from 1995 to 2002 who now works as a defense attorney. "You get to evaluate the evidence that you knew before, any new evidence, and most importantly, you get to evaluate the first trial - what was effective, what was not so effective."

    Hung juries are rare in federal prosecutions, and the re thinking of the case could strengthen it, Gallagher said.

    Benjamin, who is also a board member of the National Association of Criminal Defense Lawyers, said in a state like Virginia, the failure of a federal prosecution to win a conviction should not be taken lightly.

    While Benjamin said he did not know enough about the particulars of the Burrow case to comment on it specifically, he said generally that the failure of Virginians to convict is the exception to the rule.

    "If a federal prosecutor tells a jury of Virginians that the accused is guilty, then the inability of that jury to convict implies a serious deficiency in the case," Benjamin said. "Prosecutors are regarded as honest, objective guardians of public safety. When they stand up and argue that a person is guilty, Virginia juries tend to believe them."

    Roanoke attorney John Lichtenstein, who is representing Burrow, 56, questioned why after a year long investigation, trial and hung jury, federal prosecutors had to come up with new ways to charge his client.

    "They can charge him, they can study every word of the previous trial, they can make decisions based on that," Lichtenstein said. "Mr. Burrow is going to keep his head up and vigorously defend the case."

    The new case against Burrow is a mix of the old and new, said federal prosecutor Tom Bondurant.

    Bondurant confirmed that new evidence has come both from the continuing investigation and the first trial. Some of the new evidence is mixed in with some of the initial allegations, Bondurant said.

    Burrow faces three mail fraud charges, three wire fraud charges, two bank fraud charges, two loan application fraud charges and two counts of perjury. What makes the alleged fraud offenses federal crimes is that prosecutors say Burrow crossed state lines using the mail system, fax or e-mail to commit fraud.

    This time, federal prosecutors have secured the testimony of a key player at the memorial: former foundation lawyer Louis Harrison of Bedford. Harrison will not face a federal charge himself in exchange for his testimony.

    They've added the allegation that Burrow took a pledge from the Richmond-based Richard S. Reynolds Foundation intended for an education center and used it instead for construction costs.

    And they've used Burrow's trial testimony to charge him with perjury.

    Federal prosecutors have approached the case in a new way, said Gallagher, who examined both indictments against Burrow. He said they probably shaped the indictment based on what seemed to work and what didn't work at the first trial.

    This time around, two of the mail fraud charges are a little different, Gallagher said. Two of the charges now allege that Burrow deprived the Richard S. Reynolds Foundation of "honest services" as part of the alleged fraud. The charges stem from the allegation that Burrow used $50,000 the foundation wanted to go to an education center at the foundation, according to the indictment.

    When the foundation learned that the money had instead gone to construction costs, it did not donate the additional $50,000 that was promised, according to the indictment. (Victoria Pitrelli, executive director of the private, family foundation, declined to comment on the allegation.)

    Charging Burrow with theft of "honest services" adds another layer to the fraud, Gallagher said. In a case in which the defendant did not personally benefit from the fraud, the added layer "certainly will make sense to jurors in light of the argument that he didn't personally profit. It's an idea for the jury to latch on to - he may not have gotten money, but he did defraud to the right to honest services."

    This time around, Burrow faces 10 fraud counts; last time, he faced four charges.

    The new perjury charges were also likely strategic decisions, Gallagher and Brown said.

    Burrow was charged in connection with statements he made at his trial. Prosecutors have alleged Burrow was not truthful when he made statements about the nature of pledges from Richmond philanthropist E.C. Robins and the Veterans of Foreign Wars.

    "The testimony that they're alleging to be perjury was a core component of the defense," Gallagher said.

    Washington and Lee law professor Daryl Brown said federal prosecutors probably added the perjury counts because the fraud charges can be very difficult to prove.

    "Those sorts of charges are often easier to prove and the government can often get enough punishment out of those sorts of charges that they're willing to let the fraud charges drop after that," Gallagher said.

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