UPDATED THURSDAY: See below
By Ralph Cipriano
While the government dragnet was closing around Vince Fumo, Fumo's staffers continued to delete emails and wipe clean laptop computers and BlackBerrys.
The government calls it obstruction of justice. Fumo's story is that he relied on the advice of lawyers, who told him that as long as the government wasn't hitting him with a subpoena, he could continue with business as usual in his office. In Fumo land, that meant it was OK to continue deleting the senator's emails and wiping laptops and BlackBerrys.
Today in court, Fumo's alibi went up in smoke. First, Fumo's former lawyer, Richard A. Sprague showed up at high noon to testify for the prosecution as a rebuttal witness. The 83-year-old Sprague, who said he once thought of Fumo as a surrogate son, testified that he never gave Fumo any such legal advice.
Furthermore, Sprague testified that what Fumo's staffers were doing was dead wrong, and had he known about it, "I would have told him to stop."
"If the government has a grand jury operating and you have reason to believe what you have may be wanted by a grand jury, you can't destroy it," Sprague, a former prosecutor, testified. "It's obstruction of justice."
Sprague recalled a meeting with Fumo, when the former state senator explained his theory that as long as he wasn't under subpoena, his staff could continue with business as usual.
Sprague testified that one of the lawyers on his staff asked the state senator, "Where did you get that crazy idea that you had to be subpoenaed?"
Sprague said Fumo's response was, "Well, that's what I thought. Would it help if I had a lawyer who gave me that advice?"
"Sure it would help," Sprague testified he told Fumo. According to Sprague, Fumo made a call, and then disappeared for half an hour. When he came back he told Sprague, "I have a lawyer who will say that he gave that advice."
Sprague testified that he wanted an affidavit from the lawyer because, "I didn't want to have any part of that advice."
On cross-examination, Fumo's current defense lawyer, Dennis Cogan, asked Sprague if he believed his client's story.
"Do you really want me to answer that?" Sprague asked Cogan.
"Yes, I do," Cogan said.
"I doubted the truth of that from the beginning," Sprague testified.
The other shoe dropped when the prosecution called as their second rebuttal witness, Robert Scandone, the lawyer who allegedly gave Fumo the bad advice. Scandone testified that he became concerned he was "being set up."
Scandone, who blessed himself after he settled into the witness stand, testified that he was a friend of Fumo's for 25 years.
"I did favors for Vincent," he told the jury. That lead to a part-time job with the state Senate.
Scandone said Fumo showed him a subpoena in 2004, served on the Citizens Alliance for Better Neighborhoods. Fumo then asked the lawyer what he thought about it.
Scandone said he told Fumo in a three to five minute conversation that Citizens Alliance had a duty to cooperate with the subpoena, but that Fumo was under no legal obligation as he was not named on the subpoena. Scandone then advised Fumo, according to a letter he subsequently wrote to Sprague, that Fumo and his staff could continue to do "what was done in the normal course of district business."
Prosecutor John Pease asked Scandone when he gave that opinion, if he knew that Fumo had a policy of deleting emails. No, Scandone said. Did you know they were wiping clean BlackBerrys and laptops? No, Scandone said.
Scandone said he was talking to Fumo "as a friend."
Were you giving him legal advice? the prosecutor asked.
"No," Scandone said.
Scandone said he forgot about the incident until 18 months later when Fumo called him from Sprague's office, and said he needed Scandone "to do me a really big favor." Fumo then asked Scandone, who was two and half blocks away, to come see him at Sprague's law office at Rittenhouse Square.
Scandone said when he showed up, Fumo came outside and the two men took a walk around Rittenhouse Square.
Scandone said Fumo told him he was "at a very critical juncture" in dealing with the ongoing federal investigation. Scandone said Fumo asked him to give an affidavit to Sprague about the alleged legal advice regarding the subpoena on Citizens Alliance, namely advising Fumo that he could carry on with "the normal course" of business.
"I'm not your lawyer, what the hell do I have to do with it?" Scandone recalled telling Fumo.
Scandone testified that Sprague was preparing a defense for Fumo that the state senator was relying on the advice of counsel when his staff continued to delete emails and wipe BlackBerrys and laptops.
"That's the dumbest argument I ever heard," Scandone testified he told Fumo. Scandone, however, said Fumo pressed him as a friend to do him a favor.
"I'll stick to what I said, but nobody's believing that argument," Scandone testified he told Fumo. From his perch on the witness stand, Scandone sounded like a sage.
"But I'm not giving any affidavit," Scandone said he told Fumo. Instead, Scandone offered to write a letter.
Later, Scandone testified, Fumo called him and told him, "Dick has agreed to a letter."
"Good for Dick," Scandone said he told Fumo. Scandone said Fumo told him Sprague needed the letter for his file, so that he could argue to the feds that Fumo was following bad legal advice when his staff continued with the deleting and wiping.
Fumo called Scandone again, and told him he needed "another favor." Scandone said Fumo told him that Sprague planned to turn Scandone's letter over to the government. Fumo also asked Scandone to waive the attorney-client privilege, and go see the U.S. Attorney.
"I'm no dummy," Scandone told prosecutor John Pease. "That sounded to me like I was being set up."
Scandone switched over to Philly dialect to explain himself. "Yo, something was going on behind the scenes that I was not part of." Scandone said he told Fumo he would go see "the U.S. Attorney by myself."
Court recessed today before the defense got a chance to cross-examine Scandone. But earlier in the day, the defense did get a chance to cross-examine Sprague.
Defense lawyer Cogan asked Sprague about notes taken the day Fumo told Sprague about the bad advice he had received from Scandone. The notes of the meeting, taken by one of Sprague's lawyers, said that Fumo spoke about how he didn't believe he was under any obligation to save anything "unless you have a subpeona." The next line of the notes read, "RAS (Richard A. Sprague) did as well."
Did that note mean Sprague agreed at the meeting that unless Fumo was under subpoena, he had no obligation to preserve evidence? No way, Sprague said. Fumo then asked Sprague about a letter he wrote to Congress, complaining about what he described as a politically-motivated investigation of Fumo.
In the letter, Sprague stated there was "uncontroverted evidence" that Fumo was following bad legal advice when his office continued with its deletion policies. Cogan asked Sprague what he meant by that.
"It was uncontroverted," Sprague replied, that Scandone had given Fumo the advice, because both Fumo and Scandone agreed that's what happened.
"Did I believe it?" Sprague said to Cogan. "Of course not."
Cogan asked Sprague why he didn't share his doubts publicly about Fumo's alibi. Sprague replied by asking Cogan if he should "tell the public I don't believe my client?"
Sprague's testimony was a devastating blow to the defense, which rested its case after Fumo left the witness stand after after six days of testimony. But before he left the stand, Fumo engaged in one last dust-up with Prosecutor Pease. It was like two fighters getting in a final flurry of punches before the bell rang.
It began when Pease questioned Fumo about emails exchanged with Leonard Luchko, a former computer consultant on Fumo's staff who became a cooperating witness for the prosecution. Luchko plead guilty to obstruction of justice, but missed his old boss so much that he kept writing emails to Fumo. Luchko wrote so many emails that prosecutors decided not to call him as a witness.
"Don't let the bastards get you down," Fumo replied to Luchko. Fumo also told his former employeee that all of his employees "were still a family", and that Luchko would "always be a member of the family. Nothing can change that."
After Fumo invited Luchko to a Christmas party, Luchko wrote Fumo, "Thank you for inviting me to your house. It was the highlight of my entire year."
"You're always welcome here," Fumo replied, before asking about the health of Luchko's mother.
After he read the emails, Pease accused Fumo of playing Luchko because "you didn't want him to turn against you."
"No, not at all," Fumo replied. "I don't believe in kicking people when they're down."
"He (Luchko) had been arrested," Fumo said. Fumo charged that the government had turned Luchko's arrest into a spectacle, dragging him out of his house at 6 a.m. "in handcuffs, in front of his sick mother."
Pease objected to Fumo's outburst as non-responsive to his original question. The judge sustained the objection, agreeing to strike Fumo's remarks.
But when Pease asked further questions, implying that Fumo was still playing Luchko to keep him "in the family," Fumo struck back.
"You beat him up," Fumo said, throwing in the accusation that an FBI agent had repeatedly threatened Luchko's 80-year-old mother.
"I did not want to kick him when he was down," Fumo told Pease. "You might be that type of guy but I'm not."
Pease objected again, and Fumo started arguing. That's when Judge Ronald L. Buckwalter yelled, "Both of you, quiet!"
"Stop this line of qustions now," the judge instructed Pease. When Pease remarked that Fumo had made an outrageous charge, the judge admonished the prosecutor.
"You opened the door to this," he said. And with that last exchange, the cross-examination of Fumo was over.
The Fumo trial is scheduled to resume at 10 a.m. Thursday, with Scandone returning to the witness stand to face cross-examination.
THURSDAY UPDATE:
Judge Ronald L. Buckwalter sent the jury home today after they watched Fumo defense lawyer Dennis Cogan cross-examine Robert Scandone.
When the jury returns at 10 a.m. Monday, Ast. U.S. Attorney Robert Zauzmer will give the prosecution's closing argument. He will be followed by Edwin Jacobs, the lawyer for Fumo co-defendant Ruth Arnao, and Cogan, on behalf of Fumo. The closing arguments are expected to take up the remainder of the week.
In court today, Cogan asked Scandone about the letter he wrote to Richard A. Sprague, on behalf of Vince Fumo.
"Let's go through the letter," Cogan said.
"Go ahead," Scandone replied.
In the letter, Scandone told Sprague he could not remember whether the meeting where he gave Fumo legal advice happened at Fumo's district office on Tasker Street, or whether Fumo called him on the phone. But Scandone did recall seeing the subpoena served on the Citizens Alliance For Better Neighborhoods.
If the meeting was at Tasker Street, Scandone wrote, Fumo showed him the subpoena. If Fumo had told him about the subpoena by phone, Fumo followed up by faxing over a copy of the subpoena, Scandone wrote Sprague.
In the letter, Scandone told Sprague that he recalled advising Fumo that Citizens Alliance was "a separate entity," so their lawyers were obligated to comply with the subpoena. Scandone said he told Fumo he was "under no legal obligation," as the subpoena was served on Citizens Alliance.
So Scandone wrote that Fumo and his staff could continue with "what was done in the normal course of district business."
Did you tell the government, Cogan asked, that this advice meant that Fumo and his staff could carry on with "business as usual?" Around Fumo's offices, that meant the routine deletion of emails from the state senator.
"I don't know if that's what I said," Scandone said.
Cogan then confronted Scandone with a transcript of what he had told a federal grand jury, namely that "the senate and he could carry on business as usual."
"You knew about the practice of deleting emails?" Cogan asked Scandone.
"No," Scandone said. He added that to him, "business as usual" meant servicing constituents.
"Business as usual has nothing to do with, uh, can I delete emails," Scandone told Cogan.
Cogan showed Scandone more of the grand jury transcript. Scandone was quoted as testifying that he knew that "for years" that Fumo staffers had an ongoing policy of deleting emails, allthough he added in the transcript that he "can't imagine that Vincent would be a part of it."
Cogan also introduced an email sent out by in April of 2004 by former Fumo staffer Leonard Luchko, saying that Fumo was "stepping up" security measures in response to the ongoing federal investigation. In the email, sent to numerous staffers, Luchko told staffers to send Fumo messages that had been encrypted, or jumbled by a computer program. Luchko also talked about scheduling BlackBerry wipes for staffers.
Scandone was the second name on the list of numerous staffers that the Luchko email was sent to.
And you knew these security measures included "deletion of email?" Cogan asked.
"Yeah," Scandone said.
"Nothing further," Cogan said.
