Categories: Courtroom Buzz
      Date: January 27, 2009
     Title: What Do Fumo's Lawyers Have To Prove?

Maxwell S. Kennerly Esq. reviews the evidence, law and strategy at work in the Fumo trial.

Legally, almost nothing. The burden lies with the plaintiff (or prosecutors) to prove the elements of their claims, and the defense can sit back and do nothing more than poke holes in those claims. (There’s an exception for “affirmative” defenses like Fumo’s proposed “advice of counsel” defense, discussed previously.)

Fumo’s lawyers have certainly done their share of poking holes in the prosecution’s case, with lengthy, often painful cross-examinations of the FBI agents and accountants who performed forensic examinations of the books for the State Senate, Citizens Alliance and the Independence Seaport Museum.

Although these cross-examinations are boring to most observers, even those who have followed the trial closely, their importance should not be understated. As I’ve written before, although I have seen plenty of cases in which I could not understand why the lawyer by being so excessively nitpicky – even when I was the one doing it! – I have never actually heard a juror complain about such a cross-examination, nor have I seen a jury fail to appreciate the deeper meaning of such a laborious exercise if it bears fruit.

And such nitpicking can bear fruit, as it did for Fumo: nitpicking showed the jury that the issues weren’t as simple as the prosecution contended. Since Fumo’s charged with white collar crimes, complexity plays to his advantage. Whether it be appropriate invoicing by a contractor in a white collar criminal case, or the use of a particular technique by a doctor in a medical malpractice case, or the choice between options by a manufacture in a product liability case, at some point an issue becomes so complicated that jurors will respect most any reasonable judgment made by the defendant.

But Vince Fumo can’t sit back and poke holes in the prosecution’s case.

There’s simply too much out there. Intentional or not, the prosecutors have stripped Fumo of the general sympathy and affinity most people inherently feel for one another by portraying Fumo as a thin-skinned creep whose own daughter won’t even speak to him and who spied on his ex-girlfriend’s email. The prosecutors have also shown beyond any reasonable doubt that Fumo received substantial political and personal work from his Senate-paid staff, that Citizens Alliance and Independent Seaport Museum conferred substantial pecuniary benefits on him (even if they didn’t give him any money directly) and, most importantly, that Fumo panicked when he learned of the FBI investigation, after which he took substantial steps to minimize evidence left behind.

Indeed, Fumo’s lawyers didn’t dispute most of that. They couldn’t.

They have something else in mind: they’re going to “prove” the case by framing the context and mindset of Fumo’s actions.

The first few witnesses have been directed towards that context. Surprisingly, perhaps the most revealing context came in response to questions by the prosecution posed to former Montgomery County District Attorney (and currently County Commissioner) Bruce Castor.

Under cross examination by U.S. Attorney John Pease, however, Bruce Castor admitted that he and Marrone discussed a number of political concerns during normal business hours in Castor’s office, which Castor admitted was probably inappropriate.

But Castor’s admission raises a simple question: why has Vince Fumo been indicted for using his staff for political purposes but not Bruce Castor?

Cogan tried to drive that point home with testimony by Paul S. Dlugolecki, one of Fumo’s top advisors, that other Senators frequently did the same around election time. Zauzmer called him out on it, demanding Dlugolecki “name one” who did, to which Dlugolecki demurred, but the point was made. Frankly, as open as the testimony has been, I doubt any juror expected Dlugolecki to spill the beans and I doubt they’ll hold it against him.

Over the next few days we’ll continue to see more of that context: the defense’s goal will be to create enough context to rebut the prosecution’s central assertions underlying the fraud charges, which is that Fumo had staffers and contractors on the senate payroll who did no work for the government and that Citizens Alliance and the Independent Seaport Museum were treated like shams to benefit Fumo. They don’t have to rebut everything, just paint enough context to slant everything else.

Fumo doesn’t have to do much for the fraud charges: once he shows largely legitimate explanations for what happened, and once he challenges the worst allegations – like those made by Marrone – he’ll likely earn back reasonable doubt. The jury knows the FBI dug deep for months, and they’ll expect a case that’s, if not airtight, is at least watertight. If Fumo can show that everyone saw him dipping his hand into the cookie jar, and that the FBI has mislabeled a significant number of cookies, he’ll likely create enough reasonable doubt to avoid most of the charges.

The obstruction of justice charges are harder to fight: as the context for them is an FBI investigation. As such, Fumo’s lawyers will need to show that Fumo’s mindset – his paranoia and rampant destruction of emails – long preceded the investigation, and that he had reason to believe he could continue such destruction even after he got wind of the investigation.

And that’s where the lawyers come back into play. It also presents a judgment call for Dennis Cogan and Edwin Jacobs on how they portray the mindset of the clients, who appear to have deliberately destroyed documents in the face of an FBI investigation: do they reject the prosecutor’s portrayal of the defendant’s paranoia and recast their clients as confused innocents, or do they run with the paranoia and claim the destruction was nothing unusual for them, and so didn’t reflect a guilty mindset?

The former is the safe choice, but their hands are tied by the facts.