Louis Franklin: “At this time, the United States rests, your honor.”
It’s the end of the prosecution phase of a big trial. The nearly empty courtroom seems to say this isn’t exactly the trial of the century even if it has certain elements, a nice marriage of power and money and an arsenal of legal firepower. And now it is near the end of the government’s case-in-chief, soon we’ll be left with only six weeks of images and eyes turned toward the jury. So you might expect some podium pounding fire and brimstone, maybe some kind of smoking gun and a reeling defense. But not this time, it hasn’t been that kind of trial. The end came after a security guard was questioned about the day he saw Governor Siegelman and his wife ride up to the gate leading to Scrushy’s lakeside estate, and there was also the guy who sold him the motorcycle. In some ways it was fitting because in all of the corruption that has been alleged in this trial, the bribing of a probate Judge for a landfill ruling, the revenue ruling for the toxic waste dump, the grand failure of the GH construction project, it really has come down to this. There are a lot of things the jury may have a hard time getting their verdict around, like exactly what it was that Siegelman or Hamrick did to effect what ultimately happened with the GH Construction warehouses and the waste dump at Emelle, but most people can understand a motorcycle. It may be the last chance for the prosecution to ride on to victory, and perhaps the last witnesses, was an indication the prosecution understands this reality: Years of investigation and it may come down to a motorcycle and an ATV.
The prosecution rested in the twenty-seventh day, after calling sixty-three witnesses. The fatigue of spending eight hours of day in a courtroom and writing a few thousand words ever night has been catching up with me, so I am behind on writing some of the things that need to be discussed or addressed. But for those who have used this site to get some of their information on the ongoing trial, or have enjoyed my observations, I hope to get things mostly caught up over the weekend, so check back for those updates, and then it is on through the defense and the ultimate verdicts.
Two of the four rule 29 hearings were finished yesterday, and the other two will be argued this morning. The rule 29 phase of a modern criminal trial occurs right after the prosecution rests, and the defense has the opportunity to argue for a dismissal of the counts, or what used to be known as a directed verdict. These arguments do not pertain directly to the facts of the case. Trial by jury is a fairly sacred institution in our system of government, and the courts will generally try to avoid making preemptive rulings that would take a trial out of the hands of a jury. So the truth and reasonableness of the facts are not at issue, but instead, the defense will argue that the prosecution’s case does not meet certain legal standards and thresholds, and the case can not support the charges set forth in the indictment. The matters of the case need to be considered by the court in the light most favorable to the prosecution which is an additional safeguard to ensure the judge doesn’t take the case from the jury simply because he doesn’t believe in the facts. In a criminal trial-by-jury there are always two elements at play, the fine points of law which are not really a concern of the jury, and the facts and issues the jury can understand and rule on. One of the reasons why predicting the outcome of a jury trial can be so difficult has to do with at least three things: 1) The jury does not generally know or understand the legal points involved (e.g. what exactly the legal definition of a conspiracy is) and it is hard for the lawyers and other involved people to separate their abundance of legal knowledge from the what the juror’s would know; 2) The juror’s point of view is more sentient, completely unattached from these fine legal points, and mostly reliant on life experiences. The character of the witnesses becomes more important to the jurors than it might be to the investigators. So although we know that a liar can tell the truth, a witness who is a known liar may be disregarded—no matter what he says—just because of this defect in his character. People who are quirky or have odd mannerisms may be given less weight by the jury than people who “look” or talk better. 3) For the most part, the only thing the jurors know about the case is what they learned in the courtroom. If we are interested in a case, then the rest of us know things, maybe lots of things, and it is difficult to scrub all of that out of our heads and see it as if the information coming from the witnesses was all we know, and that we’re hearing it from the first time. This is one of several reasons why I prefer to always be in the courtroom as opposed to watching it on closed circuit TV, down the hall, with most of the reporters. If you want to try to understand what the jurors are seeing and how their impressions might be forming, then it is a good idea to see what they see. Did the judge smile more when someone was talking? Did the prosecution or the defense look particularly glum during a witness? Are the juror’s paying attention?
Although the Rule-29 arguments are fairly passionate and well often well-formulated, it is unlikely that the case will not go to the jury with all of the charges in tact. It has been fairly clear that judge Fuller is determined to let this case go to the jury, and that he hasn’t seen anything that has told him that the indictment is faulty and that the jurors should not decide the facts of the case. So most of the Rule-29 arguments will probably be more for the record, and for a possible appeal, should any convictions be returned. The process can be interesting to watch because the defense arguments are often passionate, well-made and quite well supported by established case law, but the prosecution generally doesn’t even bother to argue against the position’s articulated by the defense. They basically just say it is a good case, there is plenty of evidence, they believe the facts are proved beyond a reasonable doubt, and that the jury will return the verdict they seek. This approach is probably sufficient to get the results they want, given it doesn’t look like Judge Fuller is remotely inclined to rip pieces off of the indictment, although it kind of makes the prosecution look delusional to ignore some of the obvious problems in their case.
Now the prosecution is done, I’ll take a brief look at their case up to this point, and will expand on some of these thoughts over the weekend.
The most glaring deficiency in the Siegelman, Hamrick and Roberts cases that the government did not put forward one little bit of evidence that Siegelman, Hamrick or Roberts actually did anything to effect the situations they are supposed to have taken money and gifts in return for their actions. For Roberts, this is the road contracts and the RainLine situation; for Hamrick and Siegelman, this includes the Cherokee County Landfill, the toxic waste dump revenue ruling and the GH Construction project. There appear to be at least a couple sub-conspiracies going on, but there has been no evidence that the defendants were members of them. This includes a conspiracy between Jimmy Allen, Crum Foshee and possibly some of the construction consultants; and a conspiracy between Nick Bailey and Lanny Young.
Although it appears that Jimmy Allen was sucking money up from various sources, there is very little information that Roberts did anything to help Allen or anyone else in their endeavors. There is an interesting development in the Marcato/RainLine situation. Besides that fact that Marcato said on the stand that he didn’t feel threatened and did not connect Siegelman’s request to RainLine, there is something a little fishy about the government’s spin on his testimony. Mac Marcato decidedly did not say he felt “shook down” on the stand. Richard Pilger said that. After not using this phrase, at one point, Pilger showed Marcato his Grand Jury testimony, and asked him if he had said he felt “shook down” then and Marcato admitted that he had said it then, but still wasn’t adopting it as his present interpretation. But since that moment, Richard Pilger has mentioned that Mac Marcato was “shook down” at least a half a dozen or more times, which seems to suggest that at the Grand Jury hearing, Marcato was only following a Pilger suggestion, which has now being carried into the trial. The entire Mac Roberts situation is riddled with these kinds of problems. Jimmy Allen didn’t say what they wanted him to say on the stand, and the prosecution has been portraying their witness as a liar ever since. It was pointed out, by the defense, that the prosecution put a realtor on the stand to talk about how Allen gave Roberts a sweetheart deal on a real estate transaction, and that this was another “benefit” Roberts obtained, but they never asked Allen about this on the stand. If they had, Allen might have told him that he made a substantial amount of money in the transaction, and that whatever benefit Roberts had in the deal, it was an even greater benefit for him.
—I am running behind in completing this analysis, so I’ll conclude with a couple of quick notes from the rule 29 hearings, and there’ll be much more this evening and over the weekend.
Baxley, on behalf of Roberts: “I believe with all my heart that they can’t meet the legal test and haven’t met the legal test.” He quoted Sir Thomas Moore: “Never can we allow federal prosecutors to make up the law as they go along.” Baxley further said, “The argument about honest services is a convoluted bunch of gobbeldy-gook” Of course, Richard Pilger talked about Mac Marcato being “shook down.”
Blakey, who along with Eastland, gave very eloquent and well-argued presentations, as their reputations might have predicted.
Blakey: “They didn’t ask the right questions of the right witnesses, and consequentially they did not meet their burden of proof.” He basically said that there are separate conspiracies that are not tied together.
Eastland, on behalf of Siegelman: “We can’t subject our public servants to the whim and capriciousness of our federal prosecutors.”
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.)
Errata: I have fixed an error in the timeline chart that was posted recently. I accidentally put Scrushy in a meeting with Jimmy Allen and Mac Marcato. People have pinned a lot of things on Richard Scrushy over the last few years. This one was inadvertent. I have also corrected a couple of minor errors and added a new event in the timeline, so if you have previously downloaded or printed this chart, you might want to re-print or re-download. I have also updated the html version of the timeline. All of the charts are available off the Siegelman tab, on the homepage, or at this link: Link to Siegelman page
There will be more about today’s day in court and the election, tomorrow. So stay tuned.