Week I

Reflections after week one.
I am working on a chart and a timeline, demonstrative exhibits in the parlance of the courtroom, and should have them published within a few days.

So what has been won and lost at one week into the trial? The courtroom is a hazy environment where things are never as clear as we would like them to be, even so close to the source. Between the poles of the true believers and the skeptics, the environment is an ideal milieu for seeing what you want to see, or what you’re predisposed to see. The way to get the story right is to keep a little distance and to let the story unfold at its own pace. But in a room full of passions and emotions and the seriousness of what is ultimately being decided, it is sometimes difficult to stay close to the story but just far enough away to avoid being swept into it. On the one hand we are talking about the downside of American democracy, governmental corruption; and on the other hand, we’re talking about ending careers and putting people in jail. We had better get it right. Not just the judge. Not just the jury. But we should know and understand what has happened deep in our minds and our hearts, before we can easily move on. And we want to get it right. There are other issues that not only touch us personally but reach into the tenants of our society. Issues like the possibility of a politically motivated prosecution. The faith and trust of a people who have come to expect and accept an increasingly dark world, but in their hearts, we still very much want to believe in things. And for all of them, for all of us, we should never take these issues lightly. We really want to get it right.

Throughout my writings, I have made a disclaimer similar to the following, but with increasing interest in what is going on in Montgomery, so these comments are worth repeating. It has been a good week for the defense and I have, in this case, often been a critic of some of the motions and actions put forth by the prosecution. But I want to make it clear that I am much more on the side of Truth and Justice than I am on one side or the other. Although I have some doubts about the case being mounted against them, I am not particularly a Scrushy or Siegelman supporter, and by the same token, have no particular animosity against Mr. Franklin or Mr. Feaga, and certainly not the US Government. (Reports have said that both are fine prosecutors and I’ll believe that until I have found or uncovered real reasons not to.) But it is an ongoing fluid situation, and eventually, some conclusions will need to be made. The political nature of this prosecution is worth exploring. So is the nature of how Siegelman managed to get himself into this courtroom if it was not politically motivated. But for now, I am just taking each event that develops and reporting what happens. And I have faith that eventually, we’ll know everything.

After the first week of the trial, and taking a cue from one of the comments, it seemed like a good idea to revisit the indictment as an indicator of not only where the trial stands, but what progress or lack-of-progress each side made in the first week. A few general details are worth noting first. Judge Fuller keeps a tight ship and is very committed to keeping the trial on schedule and for using the maximum amount of courtroom time for actually presenting the respective cases to the jury. This is in obvious contrast to the Birmingham trial, with the four day weeks, the endless sidebars, the long lunches, the rarely starting on time or using the full day. The jury seems to be attentive and very into the trial, which is also in contrast to the napping or otherwise out-of-it jurors of the trial in Birmingham. This is, of course, not so much a reflection on the Middle District jurors as it is on the nature of the trial, although it could be said that the government’s mind-numbing sleep-inducing strategy was questionable in Birmingham. Interestingly, I believe the juror’s involvement, relative to the two trials, has a converse effect. The prosecution putting the Birmingham jurors to sleep could only have benefited the defense, but in this case, the jurors being more involved probably also benefits the defense. And whereas the other trial was very slow to unfold, a weeks worth of the Siegelman trial makes us feel like we already know so much about it.

So what do we know? (And what do we have yet to find out?) Besides the four defendants, the indictment mentions Nick Bailey, Lanny Young, Jimmy Allen and the ubiquitous “other persons known and unknown to the Grand Jury.” Do we know some of those unknowns now? Most of them revealed so far, are not surprisingly Nick Bailey associates. They include Curtis Kirsch, Anthony Fant, Jim Lane, Bill Gordon, Philip Jordan and Eric Hanson (more about Hanson later). With the exception of Jordan and Hanson, these were all associates of Bailey, and so far, Bailey was always between these guys and the governor. Bailey was specifically asked if the governor received anything from these people or had knowledge that the governor or others were receiving bribes, goods or services from them, and he said that they did not. To meet the RICO standards, the indictment says that “It was further part of the conspiracy that each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise.” We are only one week and two witnesses deep in the trial, but so far, nothing Bailey said would clearly implicate Hamrick or Siegelman, to meet this standard. On the first RICO count, there are also charges of money laundering and obstruction of justice, but they’ll have to prove that a conspiracy even existed before these elements would kick in, and so far, they haven’t done that. The second RICO count against Siegelman involves the alleged Scrushy bribe, with accompanying elements like mail fraud and money laundering. The Scrushy charge could still be salvaged by the government, depending on testimony yet to come, but Bailey was such a poor witness it is not likely that the jury would convict on the strength of his testimony alone. Incidentally, the Scrushy charge may be the most difficult defense challenge because the jury may not be able to separate legal lobbying from illegal bribery. Much of the various acts of the racketeering charge are predicated on lines like this: “Defendants Don Eugene Siegelman and Paul Michael Hamrick engaged in a course of conduct with Clayton “Lanny” Young establishing an agreement and understanding by which Clayton “Lanny” Young could obtain official acts in exchange for money, property and other things of value.” But so far, there is a disconnect on this one, and testimony has shown that although Bailey may have used the Governor’s office to leverage his own interests, “the conspiracy” was mostly a device whereby Bailey obtained goods and services from Young. With the exception of the motorcycle which the jury could eventually make something out of, Bailey admitted that Siegelman neither knew about most of his activities nor benefitted from them, and the motorcycle testimony was so self-discrediting that it sounded like a hollow allegation in the end. But nonetheless, if bolstered by other testimony, the motorcycle could come back to be a thorn in the side of the defense. One of the elements of the scheme says: “Clayton “Lanny” Young would and did give, directly and indirectly, approximately $204,200 to Don Eugene Siegelman.” We’ve yet to hear from Young, but this charge may have also evaporated in the murky world of Bailey’s “absolute agreement.”

There is an allegation, listed as one of the Racketeering Acts that Siegelman was supposed to have engaged in where he was supposed to have demanded $100,000 and obtained $40,000 from Jimmy Allen, which I believe has to do with the selling of the Directorship of ALDOT. We have yet to hear about this charge. We also have yet to hear about the charge that Siegelman extorted $250,000 from Mac Marcato. And we have yet to hear anything about Mac Roberts obtaining the ALDOT position because of the Jimmy Allen bribe, and then using the position to influence decisions, especially with regards to the aforementioned Jimmy Allen. As Roberts’ attorney pointed out in the opening argument, there are only two pages of the 44 page indictment that mention Roberts (although this may be a slight exageration). His attorney, Baxley, has expressed concern that the jury will not remember or understand that many of the witnesses have nothing to do with his client. He complained that they sat for a week listening to Nick Bailey talk about all kinds of bad things, and that Roberts’ name was only mentioned once and not in reference to any crime. To remedy this for Roberts and other defendants, who also have no connection to some of the witnesses, Fuller will read a charge after each witnesses, telling the jury that the testimony they just heard does not apply to certain defendants.

Counts three through nine of the indictment have to do with the Scrushy-Siegelman bribery allegations. As well as bribery and mail fraud (mailing letters of appointment and Certificate of Needs for the PET scanner and the 38-bed facility) they are charged with aiding and abetting each other. Nick Bailey didn’t help the government’s case much, but it isn’t dead. Eric Hanson and Loree Skelton may clear this up some. The prosecution may also call Mike Martin and HealthSouth banker Bill McGahan to talk about Scrushy raising money and squeezing his employers and bankers to come up with the donation, but I fail to see how this will go far in convincing the jury. As I mentioned earlier this week, Hanson may be one of the unnamed conspirators, meaning that he was threatened with prosecution in exchange for his cooperation. To my knowledge, this arrangement has not been expressly revealed yet, but I am basing this observation on an exchange Art Leach had, when he was renewing his effort to get some witnesses statements reviewed before putting them in front of the jury. They often were able to do this in Bowdre’s courtroom, but Fuller has felt that these matters could be effectively handled in open court. There are relaxed hearsay rules concerning things that are said between members of a conspiracy, and apparently, if I read it right, Eric Hanson was subject to those rules, which would mean he is considered to be part of the conspiracy. This is only conjecture at this point, and I am just putting down my reasons in arriving at that possible conclusion. If it turns out that Hanson is a cooperating witness, then his statements could be dangerous for Scrushy. However, from the testimony of Bailey, I am not aware of anything he would say that would directly jeopardize Scrushy. If he told Bailey or anyone else that he wanted Scrushy to have the CON seat, that doesn’t mean anything by itself. He wouldn’t be doing his job if he didn’t want that. It will only be meaningful, in a prosecution sort of way, if he has direct knowledge of a quid pro quo arrangement with Siegelman. But at some point, the defense will have to educate the jury about what lobbyists do, and they’ll have to do it in a low-key way to withstand relevance objections. This could prove to be a difficult assignment, as even Nick Bailey, an ersatz government operative, didn’t seem to understand the principles of lobbying and had no clear idea of what the CON board was and what kind of people were on it. The indictment also says that Siegelman gave “HealthSouth membership on, representation at, and influence over the CON Board by means of hidden payments and financial relationships.” But via testimony, it is still unclear how a single seat on the CON board would give HealthSouth influence—or control—over the board. As in the HealthSouth fraud trial, I am aware that people know some things, or have suspicions of certain relationships, but many of these things will not fit into the shape of the courtroom, nor will they conform to the rules of evidence or otherwise be made jury digestible. So the control aspect will also be hard to prove.

Counts ten through fifteen are mail and wire fraud charges. These charges are also predicated on proving the initial conspiracy counts, as outlined above. And counts sixteen and seventeen, obstruction of justice charges, are also linked to the jury believing or dis-believing the conspiracy counts. The motorcycle, Nick Bailey’s last best friend, is imbedded in these obstruction charges, and as I have pointed out, this could be a tiny thorn left at the end of the case, but the government’s allegations were seriously undermined by the quality of Nick Bailey’s testimony.

Counts eighteen to thirty-three are mail fraud charges that are linked to corruption associated with Mack Roberts and ALDOT. Although these charges are linked to Roberts getting his directorship as a result of a payoff, the testimony of Jimmy Allen will shed the most light on both the alleged payoff and these mail fraud charges.

The final count is an extortion charge related to Siegelman demanding $250,000 from Mac Marcato. This is linked to the earlier racketeering charge involving Siegelman and Marcato. We have yet to have heard any testimony on this count.

So to do a quick re-cap of week one, staking out how far we’ve come and how far we’ve yet to go, some observations can be made: The first conspiracy RICO count is in some trouble, post Bailey. The second count has to do with a pattern of racketeering, and some of the elements of the pattern are not very strong for the government, but are not completely eliminated, after the first week. The Scrushy incident is in there, which has been weakened but is not quite dead. The Roberts part of the conspiracy and the Marcato extortion are also part of the second RICO count, and these elements have not come up in the trial. All of the other counts are predicated on what the jury believes about the counts I have already mentioned. We may see a number of supporting witnesses before the government wraps up in a week or two, but the remainder of the case will probably be mostly built upon the appearance of Eric Hanson, Lanny Young and Mac Marcato. I don’t anticipate any of the defendants taking the stand. As for the length of the trial or how long the prosecution will go, it is hard to say. The two sides agreed to tell each other what witnesses they plan to call, the day before, so they could have the material related to those witnesses available. So on the first day, the prosecution gave the defense about five names. And by the end of the week, they had called exactly one witness. However, it was a surprise that the government chose not to do re-direct on Bailey, so we may lurch forward when we least expect it. On the one hand, smart money might say they’ll put up their most powerful stuff and rest; but on the other hand, they might want to get Bailey, Young and Allen up, and then try to put some time between them and the decision with supporting witnesses, so the jury will not have such a fresh image of having recently seen a bunch of convicted liars. However, it is also hard to imagine Allen and Young being any worse than Bailey, even if Vince Kilborn said about Young, “If his lips are movin’ he’s lying.”

More tomorrow. Stay with me and we’ll get to the bottom of this.