Closing Arguments (Part One)

The morning of the last day (almost) begins on a clear, blue cloudless Montgomery morning. An attorney might call this crystal clear. There are a few people gathered in the courtyard, waiting for the building to open. It was in a Montgomery courthouse that Judge Frank Johnson once presided over many defendants. Now it’s Richard Scrushy. Now it’s Governor Don Siegelman. Now it is Mac Roberts. Now it’s Paul Hamrick. As big as these names once were in the turn-of-the-century Alabama landscape of business and politics, they’ll be forgotten even if what happens here, in this courthouse, may not be. Sitting on the edge of the red brick plaza, I can’t feel or hear or see the names that have been here, the people who have traveled through the legal system over all the years before. But as an American, as a representative of the public, as a human, what happens here will be remembered and felt long after the names and faces are forgotten.

So walk past the massive windows, go down to Courtroom 2F, push open the doors, and come into the marble enclave where Judge Fuller presides. Stephen Feaga will soon evoke the aura and spirit and memory of Martin Luther King, Jr. as it must be hard to go to trial in Montgomery without remembering the past. Feaga will soon do it as to get it out of the way, even if some whispers in the back of the court tell me the evocation sounds hollow coming from his lips, like he doesn’t really feel it or believe it. On the morning of the day of closing, the opposing counsels have distinct contrast in demeanor. Near the front of the courtroom, there are a handful of defense attorneys huddling and talking. Fred Helmsing, David McDonald, Vince Kilborn, Jeff Deen and Fred Gray are in that group, and there’re smiles all around. With the finish line in view, it is a very upbeat mood. It looks kind of collegiate, like a group of old friends assembling for a fun reunion tempered by the seriousness of the moment. On the other side of the aisle, it is a different story. Quiet. Somber. Neither Louis Franklin nor Stephen Feaga nor Richard Pilger are talking to each other. They sit slumped in their chairs while Perrine and Jennifer Garrett go over some notes. Art Leach comes in with his daughter who is carrying some charts. Who needs paralegals?

As there would be in a complex multi-defendant case like this, there were skirmishes over the jury instructions that were mostly hammered out by the judge and the attorneys yesterday. Some of the highlights from the juror’s instructions include: >>That the participants in a conspiracy don’t have to enter into a formal agreement, to be part of it; >> The participants have to knowingly and willingly be part of the conspiracy but it doesn’t have to succeed; >>They would not be guilty of an offense if they had no knowledge of the conspiracy but acted in a way that furthered the conspiracy This point is interesting and relevant to this case because of the spin Feaga and Pilger have put on stipulations that the GH Construction project and specifically the Mitt Larry Road [Jim Allen’s road] saying that if it is a “good” project is entirely irrelevant to the indictment. That logic is only half right. They’re right that someone can be bribed and still do something good or make a correct decision, so by itself, the decision does not disprove the bribe. Lanny Young did this with Philip Jordan, bribing him to get a ruling that was unanimous and would have happened with or without the bribe. However there are a couple problems with the strict application of the logic: a) The fact that the official made a good decision at least gives the appearance that the official acted in good faith, and it means solid underlying proof must be available while the path to reasonable doubt has one less obstacle; and b) There is the situation referenced in this jury instruction. Just because Jim Allen stood to gain a lot of money off decisions that Mac Roberts was going to make anyway does not prove he was bribed to make those decisions. Or to restate this, plugging in this example, if a good faith decision is made by Mac Roberts happens to benefit Jim Allen who is involved in some underhanded schemes, does not mean that Roberts was part of Allen’s conspiracy. (Have I beat that to death?); >> The acceptance of a campaign contribution does not, in and of itself, constitute extortion; but if something is accepted in return, it is extortion. >> Just because they knew each other or associated with one another, does not make them part of the conspiracy. (So Lanny’s friendship with Paul Hamrick doesn’t automatically make them co-conspirators.) >> Social events should not be considered a financial benefit. >> The scheme does not have had to actually defrauded anyone. >> The jury must unanimously agree the defendants were charged in the conspiracy that is addressed in the indictment, and not some other conspiracy. This is important because a number of conspiracies, not mentioned in the indictment, were discussed during the trial.

And then it was the United States of America’s turn to address the jury and tell them why they are here, why this long investigation was a good one, why it was worth the time and money, and to explain why it really was a good case in spite of appearances. The jury leaned forward to listen as they really wanted to hear this. So did I. Stephen Feaga stood a few feet in front of the center of the jury box, without the reading glasses that he sometimes perches on the end of his nose in evil granny fashion. He speaks in a steady voice, a little less hurried than the typical rushed leading-question voice he had used during many of his interrogations. He sometimes gestures with his hands to emphasize points, and at other times, he becomes the jury’s mentor and friend, standing still with a hand in his pocket and speaking in a soft voice to draw them in as confidantes. During one of these soft poignant moments, early in his argument, Feaga says about flurry of activity that came into the indictment as obstruction of justice: “Isn’t it interesting that none of this stuff happened until after the investigation was started.” Feaga appeared to have a couple of goals, during his closing argument: 1) He wanted to remind the jurors of the many witnesses that had been on the stand in the past month. A couple of weeks ago, I predicted the jurors would not remember who Mike Martin and Leif Murphy were by the time the case goes to deliberation. Feaga wanted to make sure they had their “recollection refreshed.” (Yeah, we’ve been in court too long. We need a vacation.) 2) He wanted to anticipate the arguments of the defense, including the long drawn out case, and the two weeks worth of bankers they put the jury through; and 3) He defended the honor of the United States of America in bringing the case and prosecuting it, and he talked about the good fight waged by the prosecutors and investigators. This part was a little strange because it was almost like he was rebutting things the jury couldn’t have known, or shouldn’t have: Things the attorneys said to the press, things that were general concerns about the nature of the trial, and things the…um…um…public might have said about the propriety of what they were doing; and 4) He deputized the jurors and said they could send a message to current and future public officials that if they are tempted to become corrupt or to abuse the public trust, then they’ll have to answer to the likes of Richard Pilger.

This last point seemed like a distant echo. Closing arguments are like opinions. Every trial has one. But to properly evaluate the effectiveness of a Closing, it is best to wait a few days, or maybe to cheat a little, and wait until the verdict elapses. I have often made some comparisons to the trial in Birmingham, and Feaga’s “send a message” motif could not help but make me go back a year, and remember another closing. I can frankly remember very little, if anything, of what the prosecution said in the Scrushy fraud trial, but I remember some of Leach’s closing, some of Parkman’s closing, and all of Donald Watkins closing. At the time, I was not alone in thinking that Watkins’ closing was so far over the top it could have actually hurt the defense’s chances. But it did not take too long after the verdict before I began to reassess that closing. Watkins told the jurors they could send a message to Washington that people can’t come to Alabama and tell them what to do, that they can send a message, just like perhaps Rosa Parks did, that the people could not be dictated to. And this morning, Feaga was keeping it more on the ground, but he was invoking this “send a message” strategy which I now know can be rather effective with the right case to back it up. Is this one [the right case.]

Closing’s always try to invoke some memorable lines that will stick in the juror’s mind (Parkman’s head Rat and the cheese. “If it doesn’t fit you must acquit;” “You can send a message.”) Feaga used a couple, including butchering some Greek literature. One of the statements he said early and repeated later was, “Deals made in the bowels of hell are not witnessed by Angels.” This one was to illustrate that it is hard to prosecuted a conspiracy without taking testimony from conspirators, who either have immunity agreements or are convicted felons. And when he wasn’t delving into Greek or using poetic illustrations, Feaga was more direct: “These defendants are guilty. There is no reasonable doubt. There is no question about it at all.” And then facing the juror’s and adopting the confidante role, he said, “Don’t let them pull the wool over your eyes.”

His theme, in discussing the prosecution’s witnesses was odd, but it apparently came from some sort of inspiration on how to put a positive spin on a few things that were really messy. He basically began to systematically impeach most of the government’s witnesses by saying they were really “their” witnesses that they had to pluck out of the conspiracy. He also had some venom for Elmer Harris and says that Scrushy lied to him to get him to say or think the things he did. Having just seen Elmer Harris—strong powerful and charismatic—it kind of makes you wonder what Harris would think of Feaga’s assessment.

Perhaps drifting back to the deluge of rushed speaking objections, and the defensive speaking objections, Feaga made several mistakes. Of course the jury wouldn’t notice that he pushed Euripides back about sixteen centuries and he changed his profession, but he also said that Jim Allen was convicted (not true-he was not charged) he said something about Richard Scrushy being extorted (which would be another charge against Siegelman and would eliminate all charges against Scrushy) and he made a serious gaff when he was busy re-impeaching Elmer Harris, and he said “Why didn’t Siegelman get up and straighten that out…” I dropped my pen. A very fundamental right in a criminal trial—even in my lay-eyes—is that the defendant does not have to testify, and that the defendant choosing not to testify can not be held against him. It is a fundamental rule, a Constitutional right, but in his zeal to win this case at all costs, Feaga ran right over it. We know the jury will disregard, won’t they? But I heard it. And it spoke very loudly regardless of the impact it may have on this trial, or on what will ultimately happen.

The end of Feaga’s closing went around and around, and dropped into sloganeering. (“Absolute power corrupts absolutely.” This was an odd interjection because there is a lot of power represented in the courtroom, and it is not entirely clear, at this juncture, what and where the nature of the corrupting power is.) He also went fishing because few closing arguments are complete without red herrings lurking off shore. The defense would reel in a couple later on. The problem is that it was an indiscriminate catch. Feaga mentioned the cross-examination of Lanny Young’s pilot, which was a moment when it appeared the prosecution had deliberately tried to deceive the jury; and he also mentioned the check Nick Bailey claimed to see but couldn’t possibly have even been in Alabama on the day he said he saw it. If that one is a red herring, I would say it is a whopper of a fish: When a very unreliable witness claims with certainty, and in detail, to have seen something a crucial moment that he could not have possible seen that it might be time to check the fish ID book to see what kind of fish it really is. Feaga testified it really didn’t matter as it could have been at that meeting or maybe at a meeting in subsequent weeks. Well yes, except Nick Bailey didn’t say that. If either side is allowed to simply fill in all the information it did not get, then what would be the point of holding trials. We might as well skip the witnesses and have the attorneys carry on a monologue with the jury (I suppose in this trial, there were times when we did just that).

Before he got to the end, Feaga said something that might have been better at the beginning. I thought it might have been the most honest, the truest statement that may have been said in all of these proceedings. I’ll paraphrase it to the best of my abilities, as I tired to write fast and don’t have a transcript, but it went something like this: “You can take Truth and lock it up and put it in a canvas bag, and tie it up with thick string. And then drop it in the deepest ocean. Eventually, the salt water will cause the lock to break, and it will disintegrate the string and the bag. And the Truth will come bubbling up.” It went something like that. And he was absolutely right. Sooner or later, the Truth will come out and we’ll know what it is. It may not be what Feaga wanted or expected. It may not be what some of the others wanted. But someday we’ll know.

Before the final lines of saying they are all guilty and sending a message and doing their duty, Stephen Feaga talked about the motorcycle. Ever since Nick Bailey, I knew it would come down to this. The state of Alabama for a motorcycle. And it was the defense’s turn.

In the interlude, over lunch, between the prosecution and defense, remember that one of the hardest things to do with this case, with any white collar or high profile case, is to separate everything you might know about the subject, about the attorneys, about the defendants, about the press reports, and bring it back to the courtroom. It begins and ends on those oak benches. And even if there is a wider contextual setting that may taint what happens in court, there are still wide ranging implications that began when everything began with “all rise” and ended with a gavel. Making order out of chaos is a good thing. Remember that.

Kilborn started his argument by telling the juror his biggest fear. He might as well. We’ve all been stuck in this room now for six weeks, and it is getting to the point in the relationship where you might share your hopes and fears. Kilborn began by telling them his fears. He would end by telling them his hopes. He said that his biggest fear was that “I would be trying my most important case, I get up here, open my mouth and nothing comes out. I know I’m in the right place. I’m with an Alabama jury, and I am defending the honor of my client and his family.” It’s personal. It’s real. Kilborn went on to invoke the troops fighting in Iraq, which was something I did in a recent entry, and something Donald Watkins did a year ago (actually Watkins managed to get in Iraq, the 911 attack, soldiers storming Iwo Jima and Viet Nam in ONE closing). And he also said what it was all about to some of us, “I’m homesick. I want to go home. I want to go back to Mobile where I live, and to go there with the feeling that I’ve been a participant in the greatest trial of my life.”

Well, maybe he says that about lots of trials, I don’t know. It is a long career and interest seems to have waned in this one, but as someone who writes these entries on the web, I know that the experience is truly life changing. I think it is for me, for the defendants, and yes, I would not be surprised if all of the best paid friends money can buy, do not also feel this way.

As would be expected he went over the sins of Lanny Young and Nick Bailey, in detail. To quickly reiterate the Lies of Lanny (as listed by Kilborn) 1) He lied on his ROTC records, including forging his transcript and college degree; 2) He lied to the bankruptcy judge, and he stiffed his parents, his wife, his brother, his kids and his employees; 3) He lied to his partner (Clair Austin); 4) He lied to the IRS 5) He lied to a federal judge in his earlier convictions, including the bribery of a Probate Judge; 6) He lied on his guilty plea; 7) He lied to his pilot, and was stealing money from him. And then Kilborn said, “I say to you that Lanny Young should not be believed at all.” And this may be the crux of much of the case. If the jury is suspicious of Young, in accordance with the jury instructions, and concludes that he has lied so much it would be impossible to tell when he is telling the truth with any certainty, then much of the case goes away.

With Nick Bailey, Kilborn goes over a piece of testimony that I highlighted on these notes when it occurred. Bailey was asked if he ever agreed to do anything illegal, and he said “No.” And he says that Bailey conned the governor.

Kilborn also put up an interesting chart that contained information that was not put into perspective, during the trial: It showed that Lanny Young got $10.2 million out of the agreement, Bailey got about $310K out of it, and Siegelman, if the allegations are true, would have stood to make $14K. It should be interjected that it might be dangerous for Kilborn to put this on a chart, saying Siegelman got anything, because the United States will have a chance to rebut the defendant’s closing.

The rest of the argument centered around talking about legal lobbying, which may be the case with the Talladega beer sales and some of the other things that happened, and some deals that may have shown questionable management decisions, but were devoid of criminal intent. This notably would include the GH Construction project.

Jeff Dean was next on behalf of Paul Hamrick. As he has sometimes done, Deen started out pretty good and then kind of got mired with some things that were kind of disjointed. The afternoon was wearing on during his closing, and the long speeches were taking their toll, so I was drooping a bit in the later half of Deen’s presentation and the jury did not look as attentive either. But maybe they were just taking him up on his opening pronouncement. Deen said, “I don’t know why Paul Hamrick is here. The jurors pretty much want to go home.”

And then Jeff Deen said something that may have rendered whatever else he had to say irrelevant, regardless of how much he may have become bogged down, or how tired the jurors were. He said that, “If you can’t believe any part of what Lanny Young said, then you should check off not guilty, not guilty, not guilty….”

Deen asked, at one point, why they didn’t put on any witnesses to corroborate the testimony of Lanny Young. Assertions about what witnesses were put on or not put on were made during both Hamrick’s and Robert’s presentations. With a rebuttal still to come, this kind of talk is dangerous because it opens them up to the prosecution pointing out that the defense could call who they wanted to, and yet they chose not to. Earlier in the trial, during the prosecutions case, Baxley asked why the government didn’t call Ray Bass to the stand, and they said loudly, “because if they won’t, we will.” The thing is they never did. Ray Bass was never called by either side. And as long as the other side still has a voice in the matter, it might be dangerous to question how the opposition ran its case because it opens them up to similar questions.

Deen meandered a bit, but besides the dishonest of Lanny Young, he talked about the lack of direct evidence connecting Hamrick to most of the activities mentioned in the indictment, including the Waste Management revenue ruling, the GH Construction project and the Cherokee County landfill.

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My fingers are getting tired and it is getting late, so I am going to do Roberts’ closing tomorrow, and I will also have a full report on Scrushy’s closing. And who knows, maybe a verdict too (well no, probably not.)

The one thing that I’ll say about Roberts’ closing, for now, is that if I was handicapping the possibilities of the four defendants, I would put the chances Mac Roberts will be convicted at something like 1%. And I only put it that high because, as I said the other day, predicting what a jury will do with certainty is impossible. But I would say his chances are about as good as they get.

Much more tomorrow, through the verdict and beyond………