When Attorney General Liz Murrill's office presented a grand jury with — and former Metro Council leader — they secured indictments on money laundering, malfeasance in office and two counts of conspiracy to commit bribery, but not bribery itself.
That distinction is important, legal experts say, because it means prosecutors won't actually have to prove that Cole received money from a bribe.
Instead, Murrill’s team will need to show two things happened in order to prove the conspiracy: First, that Cole and his alleged co-conspirators agreed to set up a bribe and, second, that they took some step towards executing a bribe — even if investigators can't find the money itself.
Cole’s text messages with his close friend TJ Jackson, who was also charged as a co-conspirator, were published by h a day after Cole was indicted Aug. 5. In the messages, Cole tells Jackson — whom prosecutors say he helped secure government contracts — and another unnamed contractor that a fourth person “knows I’m getting a kickback from both of you.”
The texts also discuss various contracts awarded to Jackson and the splitting of funds between the two friends, investigators say. In one message, Cole tells Jackson “Just took care of you in a MAJOR way which means I just took care of us.”
One former prosecutor says the text messages seem “damning.”
“If I were the prosecutor, I'd feel extremely confident about my chances, because each of the charges appear to be serious and readily provable,” said former U.S. Attorney Brandon Fremin.
Fremin, a former Baton Rouge assistant district attorney who served as U.S. attorney for Louisian’s Middle District from 2018 to 2021, cautioned that he isn’t privy to all the evidence. But based on the arrest warrant, he said he would feel confident trying this case before a judge or jury, particularly with the text messages in hand.
“In connection with what I've read, it’s a nail in the coffin,” Fremin said.
But criminal defense attorney Franz Borghardt said a key question in a public corruption case like this is whether the alleged conduct warrants criminal charges or amounts to an ethics violation.
“Because if it's just an ethics violation, then you might argue ‘Yeah, my client did X, Y and Z, but if there was no criminal intent, there was no crime,’” Borghardt said.
Reached Friday, attorney Steve Irving, who Cole said will lead his defense team, denied the charges and said he will “prove the allegations false when the time comes.” He declined to discuss specifics of the case.
If convicted on the two conspiracy charges, Cole would face a maximum of five years in prison for each count — half the penalty for a bribery conviction. Money laundering carries sentences of two to 20 years in prison.
After a grand jury reviewed evidence against him for months, Cole was indicted on Aug. 5. All of his alleged crimes took place during his time as mayor pro tempore during his tenure as a Metro Council member.
He left the council when he was appointed school system superintendent not long before the 2024 school year began.
‘Act in furtherance’
State law says that a conspiracy to commit a crime occurs when two or more people agree to take part in a criminal scheme and then commit an “act in furtherance” of that crime.
“It simply means that one or more of the parties who entered into the conspiracy took a step forward towards acting on the crime they intended to commit together,” Fremin said.
He gave an example: If two people communicate with each other and agree to go buy a shotgun and kill someone together, purchasing the shotgun would be considered an “act in furtherance,” and can merit a charge of conspiracy to commit murder. That’s true even if no murder takes place, Fremin said.
“You want to see conduct that fulfills the elements of the crime,” he said. “In a case like this, it’s when you have a public official who is either softly or overtly steering his colleagues or staffers to ensure that (his) people get contracts and then getting kickbacks from the deal.”
What might the defense argue?
Criminal defense attorney Franz Borghardt said the defense could argue prosecutors have merely found evidence of an ethics violation, not a felony crime.
“A good defense attorney who's working this is going to first analyze: ‘Okay, is what this individual doing an ethics violation only, and not necessarily a crime?’” Borghardt said.
After reviewing the probable cause for Cole’s arrest, Borghardt sees the former council member’s texts as the driving evidence, which means a jury or judge must be shown those communications constitute a crime, not just something unethical.
Borghardt noted that it is much easier to get a conviction for a conspiracy charge than an actual bribe.
“It's an easier burden for the state in the sense that they don't have to actually prove the bribe,” he said.
Both result in a felony, Borghardt said, which would bar Cole from holding elected office and could keep him from an appointed public position like superintendent.
“I would imagine the attorney general would say the ultimate goal is to stop public corruption,” Borghardt said.
Who else is involved?
As of this week, Murrill’s office has charged 10 people in their sweeping corruption investigation into Baton Rouge government, including Cole, current Metro Council member Cleve Dunn Jr. and Courtney Scott, a former top aide under then-Mayor-President Sharon Weston Broome.
Borghardt says one question that remains unanswered and could certainly factor into defensive strategy is whether there is a “bigger fish” than Cole that the attorney general thinks may have been involved in potential crimes. And if so, is anyone facing charges willing to cooperate?
“Is there honor among thieves?” he said. “And if there's no honor among thieves, and these individuals have been doing criminal activities, when the chips are down, will do what they need to do to save themselves?”
On Friday, Cole’s attorneys filed a motion in court challenging the validity of the grand jury that indicted him. In the filing, Cole questions whether District Attorney Hillar Moore submitted a written request for Murrill to get involved in the grand jury proceedings, which his attorneys say is required by law.
He also asked the court to hold an evidentiary hearing, which Cole says should require materials to show who examined witnesses during closed grand jury testimony, who gave legal advice and who “controlled the presentation of Mr. Cole’s case.”