Trial By Charting:
Art Leach has filed both oral and written motions to prevent the prosecution, specifically AUSA Stephen Feaga, from incessantly and habitually making charts out of the entire trial. The method was used by both sides, sparingly but effectively, in Scrushy’s Birmingham trial. But in the Siegelman trial, it became kind of an ingrained omnipresent rendition of an available tool taken to the very limits of the absurd. On the way to getting out of hand, there are several reasons why a legal team would want to or not want to conduct a trial-by-charting.
1) If everything a witness says is recorded on a chart, then it gives the examining attorney the chance to present everything twice.
2) If the charts manage to go back to the jury deliberation room (Fuller hasn’t ruled on this but he has been skeptical that they will) then it gives the attorney the chance to have the evidence presented three times: Once from the witness, twice when they put it on the chart, and third when the juror looks at the chart during deliberations.
3) Charting wastes time. The opposing side may have a problem with this for at least two reasons: a) It affords the counsel with more time on the floor, in front of the jury; and b) It helps to prevent the other side from having a flow or developing a storyline. Additional reasons may include wanting to bolster a weak case by trying to impress the jury with artificially induced volume or if there may be some perceived strategic advantage to increasing the length of the trial (for instance having the prosecution’s case last until a primary election, or some other discreet event).
This trial-by-charting is an issue that was first visited early in the proceedings, almost as soon as Feaga begin handling most of the government’s direct exams, and the opposition, led by Art Leach in this case, began raising questions on the propriety of doing this because of the practical reasons listed above, and because of certain legal points, supported by case law.
Although it is still an ongoing situation, the recent behavior of the prosecution makes it worthwhile to revisit the issue inter alia (and please slap me if I use another dumb legal term). The prosecution has recently called several custodians of records, and it looks like they’ll call a few more before we’re done. This is not an unusual event in a white collar trial, and these people are sometimes called to authenticate records they need to have in evidence in order to make all of the points mentioned in the indictment. However, in this case, many or most of these clerks and bank officers were called to authenticate records already in evidence. It appears the prosecution deliberately withheld a couple individual documents that could have been introduced along with other stacks of similar evidence, and they refused any attempt to have opposing counsel accept their admission by stipulation. With the exception of one time when the prosecution tried to use a custodian of records to reinforce a point that had already been made weeks earlier, these clerks offered the jury no additional information. And the reason for the extraneous inclusion of this class of witnesses is for almost the same reasons why the marble walls of the courtroom could practically be papered with charts. Doing this a) Wastes time; b) Causes the same evidence to be discussed twice; and c) Hopes to convince the jury that the case has more body and substance than it actually has. And last Friday, the government came up with a creative variation of this theme, with they put Beth Crain on the stand. The direct examination of Crain ended on Friday, and the cross-examination may prove to be more interesting and revealing than the direct was, which may yet cause the prosecution to rethink their latest device to deliver extraneous evidence. The variation they used with Beth Crain was to go through her appointment book page-by page and line-by-line, where surely there must be something that says, “June 4th: Get bag of money from bank, give it to Lanny for his appointment with Governor Siegelman;” or “It’s the Big Day! Revenue ruling goes through. Schedule lunch with Paul Hamrick to celebrate.” But alas, unfortunately, it looked kind of like an…um….appointment book. Entries like, “12-10-99 Shane Bailey, Randell Smith,” and “7-15-99 Lanny Young meeting with Governor Siegelman and Nick Bailey.” In most of the entries, it was an endless litany of people we knew, of events we knew, and the whole exercise was apparently about wasting time and adding more volume to the case. She talked about the various times that she and her friends would socialize with Lanny Young and Paul Hamrick (on direct examination, she did not discuss the nature of the socializing with Lanny) and it did come out that Hamrick would sometimes call on the phone, and that she would then be instructed to get money from the bank; and that she believed at least some of it went to Hamrick. This was perhaps the only portion of Crain’s testimony that much could be made of, but there was little about the why, when, where and what of this particular activity. Let’s check the evidence again; let’s dive back into her appointment book. Have lunch with so-and-so…call so-and-so. There was nothing about go to the bank to get money for Paul Hamrick. The astute reader might say “Why would there be? That kind of thing wouldn’t be in the book.” And that’s probably true, but the point is that neither Beth Crain nor her book could really shed much light on anything. And this dovetails into another topic of some of the techniques that have been used in this trial.
Without knowing anything else about this case, without knowing much about the origins of Siegelman’s problems, or of the media-infused frenzy that launched this thing, or anything else, one aspect that should make anyone suspicious is the number of times, and the number of ways that the prosecution has spun perfectly legal acts into some kind of nefarious plot. The presence of this kind of deception, woven through their presentation of evidence has to make anyone wonder if the government really believes in the facts of their own case. The presence of deception seems to indicate the government feels they must fool the jury in order to win a conviction. It is hard to know why this is happening at this point—although it should be monitored steadily and carefully—because it is difficult to ascertain if the government is just delusional or conspiratorial. But it may well be one or the other. Some examples of legal activities they have spun into illegal crimes include: 1) Everything about the Talladega beer sales situation. I won’t belabor this one because I probably already have, but giving them every benefit of the doubt, I believe it is impossible to find the criminal activity imbedded within this allegation; 2) The extravagant braggart, Lanny Young, picking up tabs, is not direct evidence of corruption. Nor is having lunch or seeing anyone, unless we actually know the illegal activities that happened at these lunches or meetings; 3) Jimmy Allen giving money to PACs that was routed into larger PACs and into Siegelman’s campaign. If this is illegal, then tens of thousands of donors, and the candidates they support, should be put in jail. The other day, an extremely deceptive chart that was created by the prosecution was shown to the jury. The spaghetti like web of the flowchart made it look like it was tracing mob-like money laundering. But in fact, it was a generic chart that showed how money interacts with PACs and flows into the campaigns of candidates. Absent from the chart, was the part that showed that there were many other donors doing exactly what Jimmy Allen was doing, and the part that showed the money was co-mingled within the PACs and that it went to other campaigns, besides Siegelman’s. (It may also be worthwhile to remember that Allen said on the stand that he didn’t think he did anything wrong, and that he believed the money he gave to the PACs were legitimate campaign contributions.)
In all of these examples, the prosecution has criminalized legal activities for the consumption of the jury. The last one, about the money that went into the PACs, is particularly deceptive because it is about an area that many people outside of politics do not understand, and the jury may be more willing to take the government’s word for it.
The midnight oil:
In the last few days of the government’s case, there has been a skeleton crew at the defense table. During the dull and tedious week marked by days of custodians of records, there is work going on elsewhere. Baxley is gone from Roberts’ side. Gone is Leach, Moore and Gray from Scrushy’s table. It feels a little weird watching the case go on without them, since they’ve been at the center of the action, in both of Scrushy’s trials. Missing from Siegelman’s camp is Pitt, Blakey and Eastland. From a full complement of fifteen attorneys, we are down to just seven lawyers and four defendants. And it is just a little strange seeing Richard Scrushy flanked by only one attorney. Somewhere, they’re burning the florescent oil, and they’ll probably be doing it all night too.
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Tomorrow: It’s not exactly Fear and Loathing on the Campaign Trail. It is closer to a bus, some landscape and some folk, but there’ll be a full report on the last days of the campaign before it comes for a vote on Day 25 of the trial.
Stay tuned and we’ll get to the bottom of this.
(Timestamp edited to make it look like there’s sleep involved.)