Report from Birmingham

A Long Week in a Long Trial
As the bleary-eyed jury would tell you, if they were allowed to have contact with anyone, the trial has slowed down to a nearly imperceptible crawl, but this doesn’t mean there are not many topics to discuss regarding what is taking place in the courthouse. Yes, I suppose that means that unless you really like the steady drone of bankers and of hearing the same thing told to you six or seven or eight times, then it looks like there’s a chance you’ll get more action reading these notes than sleeping through a day of the trial.

The prosecution’s strategy has morphed into an everything-but-the-kitchen-sink approach, and if we’re not careful, they’ll subpoena the kitchen sink too. What has happened is that when there was good reason to believe that a wobbly case would not hold up and justify the expenditure of time and money at the cost of the lives and livelihoods of those involved, the government attorneys decided to use a ploy to convince the jury the case was better then the one they actually presented. Or to use one of Richard Pilger’s favorite words, they wanted to overwhelm, impress and dazzle the jury with their voluminous evidence. For an eleventh hour ploy, no one can really fault them for trying, because it would either be lose with the short version or lose with the long version, and there is the remote chance that they could actually be able to use the juror’s as their hapless captive dupes. But it seems much more likely that this approach puts them on an inverse curve as it appears their best chance of winning was to slap a good closing argument on their original case, but now the longer they have artificially extended the proceedings, the more they have pushed the juror’s faith and patience to the limit. And although I could be wrong, they don’t look like they’re buying this ploy at all, and that their discontent has grown to almost militant proportions. In a couple of weeks, some of the jurors might tell us, and it will be interesting to hear what they say.

As I have indicated, there may have been some aspects of the prosecution’s case that at least had an outside chance of being winnable, and there may even be some aspects that are still winnable, but the case had problems from the beginning to the end, and artificially adding the filler, the voluminous extraneous “evidence,” has negatively improved their chances. It may be too early to launch into a post mortem, so these will only be preliminary comments, but in a conspiracy case the prosecution needed to tell a story, to tell a tale that linked together and could paint a picture in the juror’s minds of how the various elements melded with each other to create a criminal co-operative. And by the time they get to the deliberation room, the jury would want to have at least a few powerful images of money and services changing hands, and then of power being used to influence decisions that would thereby cause the conspirators on one end to have more money to corrupt the politicians on the other end. Picture one of those circular flow charts with big arrows, going around and around. The jury needs to see something like that in their mind. And it would help if some of the corroborating information was actually coming from multiple sources, and that there were at least a couple key witnesses to the corruption who were either not immersed in the conspiracy, or were otherwise reliable. But this picture was never painted. The jury will be confused by the presentation of several baby-conspiracies that don’t include the names Hamrick, Siegelman or Roberts; and the jury was not shown a single piece of evidence or testimony that explains how Hamrick, Siegelman or Roberts actually used their positions to influence some of the things that happened on the other end. And it would be hard pressed for me, if I were a juror, to not see Lanny Young as a privateer who did most of his underhanded deals on his own and for himself (he perhaps corrupted the naïve Nick Bailey) and he liked to buy dinners and things for his politician friends so he could bolster his claims of having connections to them, but the only time he really used the connections he had with these people, in any real way, was when he got caught with both hands in the cookie jar. That was the time for Lanny Young to cash in on the gifts and things he had given to some of his politician friends. How much is a get-years-shaved-off-your-sentence card worth?

The recent story line of the trial began at a point which should have been an ending. When Mac Marcato stepped down from the witness stand, the prosecution had pretty much expended all of the evidence they had, they had told the best story they could, but there seemed to be a problem. Marcato turned out to be practically a nightmare witness for the prosecution. He failed to confirm most of the Siegelman allegations he was connected to, and about the best they could do was to get Richard Pilger to inartfully stuff the words from Marcato’s Grand Jury testimony back in his mouth. So if you are an amateur Stephen Feaga or Louis Franklin, what do you do? There are a few options: 1) Do a quick mop up before resting the case, and work on writing a really good closing argument that might paint the rather lame evidence into a better looking case; 2) Hold a mini-strategy session, and figure out how the limping and bleeding case could be shorn up as succinctly as possible, using available resources; and 3) To avoid ending on a weak note and almost certain defeat, dump tons and tons of extraneous evidence on the jurors and spend a week trying to confuse them into thinking the case is better than it is. The best approach probably would have been (2) but they obviously opted for (3). They were helped with this decision by a fairly lenient judge who is approaching this big case gingerly, and is unable to make any kind of bold decisions—for either side—that might prevent the prosecution or the defense from managing the case as they see fit. It is possible that his cautious approach, although done with the best of intentions, may have introduced reversible error into the case, which would not serve either side well. There have been twenty witnesses since Mac Marcato stepped down, and there will be at least twenty-two before the prosecution rest. They promise to call only two more quick witnesses tomorrow, but I’ll bet there is a better than even chance that there’ll be one or two more that will come to the prosecution as an apparition in a dream.

[Steeeeeeeephhhhen, Steeeephen Feaaaga….I am the ghost of cases past….call another banker, you neeeed to. It's important….your destiny depends on it….]

So one of the things that has happened, is that the jury has heard the same piece of evidence five, six, seven or eight times. Art Leach has thankfully been out of the courtroom lately, working on the Scrushy defense, because he is a veritable objection machine and he believes in fighting for his clients every step of the way. So with the nearly continuous nonstop leading questions (Kilborn said today, “Mr. Feaga could just take the witness stand and testify. I object to all this leading”) the barely there relevance of much of this extraneous testimony and apparently any form of “asked and answered” is non-existent in Fuller’s courtroom. I asked one of the attorneys for a legal clarification about this today, because it seems so blatant, so I asked if it was permissible to ask the same questions about the same evidence, if it was done through different witnesses. I was looking for some kind of explanation about how or why they were getting away with this, and was basically told that in other courtrooms stricter ‘ask and answered’ rules would apply. So let’s do some examples. The prosecution accomplishes this piling on of the same testimony by employing two methods. The first is within the same witness, and the second is by using an inter-witness network to pound home the same points (remember that I said there will have been twenty-two witnesses after they effectually ran out of things to say). Within the same witness, they use some of the methods I have previously discussed, like charting and weaving the charting into a pattern of verbal repetition. So it may go something like this: Prosecutor: How much was the check for? Witness: $1,000. Prosecutor: $1,000? Witness: Yes. Prosecutor: So we’ll take the check for $1,000 and we’ll put it here on the chart. Witness: [nothing] Prosecutor: Is that right? We have $1,000 on the chart here. Witness: [nothing] Prosecutor: So after this check for $1,000, what does the next one say, the one after the one for $1.000? Note that I’ve managed to have the original question answered no less than six times AND slowly written it onto a chart. It should also be noted that there is little wonder why we’re in the sixth week of a trial where the evidence was really not that voluminous. (And a few minutes later, in the same example. Prosecutor: Let’s look at the statement, is that the same $1,000 check you mentioned a minute ago? The same $1,000 that is on the chart right there. Witness: Um, yes.) This methodology wastes a little time with every witness and it is annoying to the jury and everyone else, but to waste wholesale trial time, to whack off time by the hours and days, they can pile-drive more evidence by using the inter-witness methodology. One example could be found in the $40,000 Jimmy Allen was alleged to have given to Siegelman’s campaign fund so he could make $1.5 million, Crum Foshee could make $800K, and some consulting companies could make millions less the kickback to Allen. First Jimmy Allen, under oath, said that he wrote eight checks of over $4,000 and he deposited them into the bank accounts of some PACs. But lets not take the eyewitness testimony’s word for it. Let’s bring up the banker from the bank where the PACs were. Yep, there are them checks. Let’s bring up the banker of the PACs where the money was transferred to. Yep, there are them checks. Let’s bring up yet a third banker to talk about checks going into PACs, but I’m already confused about how that worked out. It seems like it’s some kind of arty surreal movie, and everywhere we go, there are the same checks, the same checks, over and over again, the same checks. So maybe the jury doesn’t quite get it, let’s bring in someone from the Secretary of State to make a chart that pretends Jimmy Allen’s checks are the only checks left in the world, and all PACs lead to Siegelman, we can use her to present a chart produced by the prosecution that shows some kind of spidery-looking money laundering type network with cute little pictures of the same checks going into the same PACs and disappearing into the same governor’s campaign fund. We could also beat the motorcycle and the ATV to death, which at least makes some sense because if there is even a remote chance that the jury will not dismiss Lanny Young and Nick Bailey as not reliable enough to depend on the veracity of their testimony, then they might look for something tangible to hang onto. And there’s Stephen Feaga on a motorcycle and his little-boy-mischievous-grin and his how-could-you-guys-find-anything-wrong-with-that attitude. This piece of their case is a lot less absurd and a lot less obscure than the other voluminous information they dumped on a restless jury, but by doing that, dumping a couple of tons of repetitive information on these things, they may have buried the only tangible aspects they had left in their case.

The Interdict: There are times when the Courtroom just does not make a lot of sense. And in these times, there is a feeling, a dark pallor that seeps down the marble walls, up the pillars, swirls past the bench and envelops the jury. It is a feeling that something just isn’t right, something doesn’t feel right. It happens when it appears the judge is not that much in control—yes it happened a couple of times in Bowdre’s courtroom—or when the prosecution, whom I always hold to a higher standard, appears to be intentionally deceptive, or perhaps when defense attorneys are using tricks to destroy an otherwise honest witness. The attorneys and judges will easily survive to try other cases in other courtrooms, but it is in times like these, when The Interdict is in, that it is harder to bear witness to the process. It is not about what you want to happen in the court; nor is it about the inaccessible nature of the law as it is argued by the attorneys vs. the stream of humanity who struggles daily to live by the rule of law. Just as a skilled detective can bring order back to a chaotic world, so can the court render order to the competing arms of justice. In the end, there is a decision, an answer, and there will always be war until there is peace.

But what happens when the chaos comes inside? What happens when the judge is presiding over a tottering case, an imagined madness? The defense strives to bend reality by locking the doors against anything and anyone who could bear witness against their client. And the prosecution fights equally hard to overwhelm the defense, trying to feed the jury concepts they’ll understand even if the understanding they seek will be erroneous and false. I’ll talk about some of these concepts, and the chances that both sides have, in the coming days, as the prosecution winds up and the defense takes the floor.

This morning there was the resolution of yesterday afternoon’s fight. Besides the piling-on redundancy of recent testimony, the prosecution has literally started ripping up the fixtures and throwing in the kitchen sink. Evidence of this is that several of the recently called witnesses were only recently subpoenaed, pieces of evidence, like Beth Crain’s appointment book, were examined by the prosecution, for the first time, only days or weeks ago. Think about it. The investigation of this case has been going on for at least five years, and they are just now collecting witnesses, they are just now examining pieces of evidence, five and six weeks into the trial. If there is any doubt about the truth of the weakness of the government’s case, and how they ran out of things to say in a poorly designed trial strategy, after Marcato, consider both the voluminous redundancy of the same evidence and consider the fact they are still trying to build their case five years after an investigation began and five weeks into the trial. This morning’s fight had to do with the introduction into evidence of some contractors or consultants who got large road projects after Roberts became the Highway Director. They supposedly got kickbacks from Jimmy Allen but there was no evidence that Roberts even knew of the existence of these arrangements with Allen, and there was certainly no evidence that Roberts got anything out of it. This evidence is what I have come to call “baby conspiracies” that were taking place below the level of the Siegelman-Hamrick-Roberts triad, and the prosecutors have introduced no evidence that the three defendants got anything out of these arrangements, nor is there absolutely any evidence (beyond some extremely vague inferences) that any of these three people actually did anything to influence or affect the workings of these baby-conspiracies. One interesting aspect of the judge’s ruling to keep this testimony was that I was pretty sure he said that the reason for including the Burt-Kleinpeter (the consultant) information was because the dates exactly matched the dates that Roberts was director of ALDOT. However, when the defense later tried to show that the state continues to have contracts with Burt-Kleinpeter, the government’s relevancy objections were sustained.

The person who is most exposed to the understanding of the jury is Paul Hamrick because it is undeniable that he had a direct link to Lanny Young and because it is equally undeniable that he got some things from Young, including a car, some cash and some dinners. I personally think the jury will dismiss anything that has to do with Lanny Young because they should only conclude that the things given to Hamrick are significant, within the confines and parameters of the indictment, if they believe Young and Hamrick were actually in a conspiracy together. I personally don’t think that will happen, but it is not impossible, and there is a far greater chance of this happening to Hamrick than there is with any of the other three defendants. This exposure could also be eroded if not erased by his defense, which is yet to come. This week, as the prosecution (finally) winds up, I will talk about the strengths and weakness of the each defendant’s case. I am working on a new chart, which probably won’t be done as it is already closer to morning than midnight, but should have it up tomorrow.

After the prosecution rests, each defendant will file Rule 29 motions to dismiss, but the judge has all but indicated it is merely a formality for the record, in the event of an appeal, and it is not likely that he will remove any charges before sending the case to the jury. At the end of the day, the prosecution filed a motion (which I haven’t looked up yet) to reconsider an Order Fuller entered before the trial. In that Order, he listed a couple of curative options to deal with Scrushy’s and Siegelman’s motion to dismiss one of their charges because of multiplicity. I believe he said that the prosecution could either pick one of the two charges or he could instruct the jury to only consider one of the two charges. But this afternoon, the government filed a motion to reconsider that Order, which would have the effect of sending both charges to the jury. Because of reasons sprinkled throughout this entry, it is unlikely that Fuller will reconsider his earlier position. If nothing else, Fuller is fairly consistent.

Coming attractions: Tomorrow there will be a report on the prosecution’s wind up and on the Rule 29 hearings, and there will be some discussion on what is right and wrong about each of the defendant’s case. And there will be a new chart. (And I have forgotten the prosecution’s attempt to make a soaring point on the wings of Lanny Young’s airplane, only to have it crash and burn somewhere north of Dothan. This testimony also fit within a wider theme which I will also discuss in the coming days.)