Surprising Silence

The biggest fireworks of the fifth day, the biggest surprise of the day was borne out of the resounding silence at the end. It was a spectacular display of nothing. “The United States of America will not do a redirect of this witness.”

After three days of a gauntlet-like cross examination by Siegleman’s McDonald, Hamrick’s Deen and Scrushy’s Leach, the fifth day was mostly filled up with Art Leach trying to tie up some loose ends and pin Nick Bailey down on some details. But he wasn’t giving an inch. In Bailey’s effected well-rehearsed, over-coached style as a witness, he was not going to admit his own name. If Leach were to say is your name Nick Bailey, he was likely to either say, “It may be Nick Bailey,” or “If you give me a document that shows my name is Nick Bailey, I’ll agree with you.” It was frustrating for the attorneys and painful to watch from any other vantage point. The jousting match of Leach probing and Bailey dodging reached a surreal climax in the final minutes of the cross-examination. Leach was asking him about the agents that had helped him prepare for the case, and about if he had memorized responses to give like a script. Mr. Bailey chose an unfortunate method of denying that he was coached or given scripted responses. He rattled off canned sentences, all of them the same word-for-word, over and over again. So he denied being an over-prepped scripted witness by giving scripted responses. An exasperated Art Leach finally reached back and yanked another page out of the Jim Parkman playbook. He said “Are you on any kind of medication?” The ploy drew an inevitable objection even though an external explanation seemed plausible at that point. And since Leach hasn’t been able to charm Judge Fuller nearly as well as Parkman charmed Bowdre, he was called into a bench conference—rare in this trial—and presumably given some strong cautionary language before the judge gave a “jury will disregard” charge, and Leach retook his position at the podium. This exchange points out one of the maddening and frustrating aspects of Nick Bailey as a witness. He had such a pattern of lying and he was so unwilling to admit to anything, that it was nearly impossible to gage if there was ever a time he was telling the truth. And the over-coaching was painfully obvious. For instance, Bailey could have easily admitted having some help with his testimony, because quite frankly, all witnesses in trials like this receive some help from the investigation teams, and so his unwillingness to admit the obvious cast suspicion over everything that came out of his mouth.

Earlier in the day, there was some gallery-discussion about what the cross-examination would be like, and some speculation that it could be interesting. So it was not without a great deal of surprise, when the USA chose not to conduct a re-direct. This is particularly true because Nick Bailey seriously damaged and undermined the government’s case, and it would seem they would have at least tried to limit the extent of the damage. Since they chose to pass on that opportunity, the only explanation appears to be an assessment that Nick Bailey has done nothing but hurt their case, and the longer he is on the stand, the worse it is getting, so the government decided that would rather leave things without rebuttal rather than risk further harm to a case that was looking a lot better before Bailey took the stand.

As a recap to the Nick Bailey testimony, I will reiterate what may have been the crucial moment in his testimony, the moment that will probably be highlighted in a few weeks, during closing arguments. This moment has more to do with the alleged conspiracy that Siegelman and Hamrick were supposed to be part of, but if the conspiracy breaks down, then it is likely that Bailey will be exposed as an out-for-himself privateer, and it may be fairly easy to cast the Scrushy situation in that light.

I wrote about this exchange yesterday, and I am rewriting it today, with the benefit of the transcript that one of the attorneys in the courtroom was nice enough to share with me.

McDonald: “Did you, Nick Bailey, in 1994, during all this period you and I have been talking about, ever reach an agreement with this man, whom you say you still love and respect, that if he got elected to office, that he and you would in any way use that office in an illegal manner, illegal as you understand the term to be?”
Nick Bailey: “No.”

And there goes the conspiracy.

In other matters concerning the Scrushy portion of the trial, Leach explored the fact that other businesses and individuals gave large sums of money to the government, notably that the Nursing Home Association gave $1 million and the Association’s Margie Sellers was made the chairman of the CON board. There was also a long series of questions about how his story and testimony have gradually changed after many meetings with the FBI and US attorneys. At one point, Bailey told Leach that his memory “improved over time.”

Leach also mentioned a couple of things, in his questions, that were covered in these very notes (does my heart proud). Cheapest help Scrushy’s had in years. One of them had to do with Bailey not being able to remember if he went to the Super Bowl, and the other had to do with the absurd situation of the governor going up to Birmingham to pick up a big bribe at the HealthSouth offices. My entry had wondered if a more likely scenario would have them dropping off a sack of money in a Montgomery alley. In Leach’s version, it was a Birmingham alley. I won’t actually claim credit though. Bailey was the kind of witness that it was pretty easy to see the holes, so it is more than likely that I was just seeing what all of those sharp-y attorneys were seeing.

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I have put the witness file under the Siegelman tab, on this site. This will be a running list of the witnesses, when they appeared and what lawyers examined them. I am also working on updating the important names file. The link to that is found on the home page and also under the Siegelman tab. I added about a dozen names and will add about a dozen more before the weekend is over. I am also working on a timeline and some charts, that I hope to be able to have published by the end of the weekend.

–Have a good weekend. There are a lot of things being written about this trial and even some blogs, so I hope these notes have helped to supplement your knowledge and understanding of what is going on in the Montgomery courtroom.–