The Campaign Trial and the Cannon in the Back

The campaign trail. It is 8:40 am on a bright spring day in Montgomery. Don Siegelman walks into the federal courthouse and there is a class full of kids standing around in the lobby. Without missing a step, without missing a beat, Siegelman wades in with his hand extended, “Hello, I’m Don Siegelman.” A few minutes later, Governor Siegelman takes his seat at the table next to Vincent Kilborn just as Kilborn’s firm-mate David McDonald begins to question a witness.

It is a different world, and because his last courtroom detour was brief, maybe he could get some tips form the Scrushy’s. Once the Captain of the fifth floor of the corporate tower at Birmingham’s HealthSouth headquarters, he once received athletes and politicians and doctors and civic leaders. But for six long months in Birmingham and likely a month in Montgomery, the throng has been reduced to a bunch of guys in gray and black suits, some people from the church and a few straggling hangers-on-people like me. There is still a politician or two in his life. Siegelman and Hamrick are seated to his right. And by year three, the Scrushy’s have become very adept defendants. Its funny how life does that to us. At times bitter, at times wistful, they see it as an opportunity to do something new, to go in different directions. Siegelman shakes hands in the lunchroom. Lawyers. Clerks. He apparently has a campaign operative who accompanies him to court. The candidate is not yet quite ready to take that step. Some polls have him leading in the primary race.

In diagramming computer networks, the Internet is usually depicted as a cloud. It is a cloud because you can not be certain of the precise nature of this configuration, nor can you really know exactly what happens within the cloud. If Nick Bailey were to diagram his “absolute agreement” with Hamrick, Siegelman and Young, he might employ similar typography. After two days of talking about this agreement, it was hard to tell when it started, when it ended and just what actually happened inside. It was kind of an amorphous blob. A cloud. The topic is revisited again and again and again, but the cloud never has a better size or shape than could be expected from an “absolute agreement.” As a device, the entire ploy stretches patience and credulity until we’re squirming on the hard benches almost as much as Nick Bailey is squirming in the witness chair.

David McDonald finally put the case on the line to Bailey when he said, “Committing crimes was never part of the agreement. Nick Bailey never heard Don Siegelman say or imply he would do anything illegal or immoral for Lanny Young,” and Bailey agreed with that assessment.

In the end, it came down to a motorcycle, just a bauble, something that Siegelman liked when he saw it on a trip to Japan. It all came down to that. Just a motorcycle. Nick Bailey had been squirming in the hot seat for two days, and he got testy as he defended that bike as his last stand. After all those lies, a fantasy career as a political operative, and a failed career as a cattle futures trader, it has all come to this. Bike week in Montgomery. Did his voice, defending the motorcycle as an instrument of corruption sound as pathetic in the witness box as it did up in the gallery? It was his final ticket for a reduced jail term. Everything else is gone. Nick Bailey, who has admitted telling hundreds of lies to literally dozens of people, had to hang on to this one last thing. If he loses the motorcycle, they’ve got nothing. Siegelman didn’t always make good choices and certainly could use some work on picking personnel, which could have an impact on his ability to govern, but the notion of a criminal enterprise run from the governor’s mansion, at least in the confines of the courtroom, is absurd; and it is at least as pathetic as the guy in the witness box who is doing his final shadowy dance with a motorcycle.

Checking in at the prosecution table, Pilger has returned to staring at the ceiling. He has a yellow legal pad in front of him but I’ve never seen him write on it (although this afternoon he was studying a book.) Jennifer Garret seems to have a permanent sad or tense look on her face. Even in the corridors, she looks wistful and furtive. Maybe it has something to do with the case; or maybe it has to do with her position on the team; or maybe she just represents the sadness amongst us. There are a lot of attorneys and we’re represented well. Feaga is running hot and cold. On at least two occasions yesterday, he indicated that he wasn’t paying attention to the proceedings. One time he wanted to object, but McDonald had moved on before he was able to pull the trigger. But today, it appears that he’s going over notes and was preparing to interrupt the pace set by McDonald, to help limit the damage of a bad prosecution witness. Franklin has returned to his pre-fight stature of being a low key presence at the table.

Much of the afternoon was spent with Hamrick’s attorney, Jeff Dean, reestablishing that neither Hamrick or Siegelman had much if anything to do with the mounting shady deals that Bailey and Young were involved in. This portion of the trial might have looked familiar to the Scrushy’s. And as time went on, it became increasingly clear that Bailey’s little conspiracy was a fiction created in his mind with the dual purpose of absolving him from responsibility for his acts, and for making Bailey more important than he really was. Siegelman made the mistake of elevating this guy to a position where he could do these things, but he probably did it because he was useful to the governor. And Siegelman underestimated the damage this continued association would cause. But an entrenched mental fiction is hard to dislodge in a court of law, even if it has been pared down to a motorcycle and it isn’t likely the jury will buy into much of this story. At the end of the day, Leach took the podium as Bailey continued to run the gauntlet for his crimes. First McDonald, then Deen and then Leach (Baxley passed as Bailey had little to do with Roberts). Art Leach, who is well known to us who followed the trial in Birmingham, is known for his right-on-the-edge passion and his histrionics. Leach’s style is very direct and straight forward (and did I mention passionate) which was an interesting contrast to Parkman’s folksy but shrewd southern charm, but he contrasts well with this trial’s McDonald. In the witness box, Bailey is kind of a mousy nervous kind of person, who drinks a lot of water and sweats a lot under the withering attack. Whereas McDonald made him squirm a bit, Leach’s style is to be a dominating presence in front of the witness, to kind of verbally reach out and grab him by the throat, and it was very effective this afternoon. Bailey would go into his canned, well rehearsed lines, but they sounded weaker and weaker as the afternoon came to a close. As to Richard Scrushy, Leach got right to the point that I have written about for months now, asking if there was any real first-hand account that could connect Scrushy and Siegelman and Hanson and what was supposed to have taken place between them; and he asked if there was any documentary evidence. Remember documents? The things they couldn’t find in Birmingham. They still can’t find them in Montgomery. All Bailey could offer as documentary proof were the checks, but no one has ever been put in jail just for writing checks. Bailey and the prosecution are still going to have to tie those checks to the allegation that they were written specifically in exchange for a seat on the CON board. When the court took its evening recess, and with Art Leach’s back to the court, he was grinning from ear to ear. A minute or two later, while huddled with a couple of the attorneys, he was still grinning. (It must’ve gone well.)

Who knows? Maybe Scrushy can get back to the ministry and Siegelman can get back on the campaign trail quicker than you think. The Siegelman team has apparently quietly rolled a cannon into the courtroom. They have added a new attorney to their team, George Blakey, and they told the judge that he wouldn’t need to be qualified to the jury (does the jury know him etc.) because he will not make any appearances before the jury, but will only be used to argue motions in front of the court? Say for instance, motions to dismiss perhaps. Motions to go back on the campaign trail. So who is George Blakey, besides a law professor at Notre Dame? He is one of the guys that wrote the RICO statutes, that’s who. He is practically the national expert on the legal aspects of conspiracies (he has fame in other areas too, but that’s the one germane to this case). As I have often written in these notes, I am not writing for lawyers (even though I’m read by some—and I thank them for their interest) and I don’t even pretend to know or even to want to know all of the nuances of law and legal thresholds, but instead, I write about possible trends, what is making sense, what is not working, and aspects that most of us can understand. So having said that, and having closely watched Nick Bailey for three days, it is possible that Siegelman may be on a campaign of a different sort. It is possible that Siegelman and the others may build a credible campaign that the testimony does not support the legal standards and thresholds necessary for there to be conspiracy charges. Although Young is the moneyman, Bailey is the cornerstone of the conspiracy because if his information is tossed out, the core of the case would have been ripped out (the second time for Siegelman) and although they could go on with the Scrushy matter, it wouldn’t be likely. Just a heads-up in case anyone else notices that cannon in the gallery.

More tomorrow. Stay tuned I’ll be there until that cannon goes off or we otherwise find our way back home.