Categories: Courtroom Buzz
      Date: March 03, 2009
     Title: What Cover-Up, Defense Lawyer Says

Live from the Vince Fumo trial, defense lawyer Dennis Cogan pokes holes in the government's obstruction of justice case and goes after former Fumo "father-figure" Dick Sprague

By Ralph Cipriano

Vince Fumo's defense lawyer poked some holes today in what once seemed like a formidable dam, the government's obstruction of justice case against his client.

Defense lawyer Dennis Cogan told the jury in his closing statement that documents in the case showed that Fumo was not orchestrating a cover-up, as the government has alleged, but that he was merely relying on the legal advice of his former "father-figure," Richard A. Sprague.

Cogan said the documents back his client's side of the story, that Sprague had formerly advised him that he could continue "business as usual," in his office, which included deleting emails and wiping laptop computers and BlackBerrys, because the records were not under subpoena. In his appearance as a rebuttal witness for the prosecution, Sprague, a legendary former homicide prosecutor, vehemently denied that he had ever told Fumo it was OK to destroy evidence.

Cogan began by showing jurors a Fumo staff email that prosecutors have said marked the beginnings of the cover-up. In the email, former Fumo computer technician Leonard Luchko advises fellow Fumo staffers that it's time to step up security measures in response to a recent Philadelphia Inquirer report about an ongoing FBI investigation of the boss. In the email, Luchko instructs staffers to delete all emails from the senator. Luchko also urges staffers to schedule appointments to come in and have their laptops and BlackBerrys wiped clean.

The first thing Cogan pointed out about the Luchko email was that it was addressed to 29 people, including a couple of lawyers and a former Philadelphia police inspector, private investigator Frank Wallace, then on the state senate payroll.

Is this how you launch a cover-up, Cogan asked the jury, by sending out a general announcement to 29 people, including a couple of lawyers and a former police inspector?

Cogan told the jury that for years, Fumo had maintained a policy of deleting emails and wiping computers, and that the Luchko email was merely reminding staffers of that longstanding policy. To back up his argument, Cogan cited testimony from former Fumo staffer Dan Coyne that the wiping and deleting was "part of regularly scheduled maintenance."

Indeed, Coyne could not remember a time when the wiping and deleting was not done, Cogan told the jury, adding, "It was an accepted practice."

Cogan then placed a blow-up on an easel of a page of notes taken in 2006 by one of Sprague's lawyers. The notes were taken the day Fumo supposedly first told Sprague about his belief that he could continue to delete emails and wipe BlackBerrys and laptops because they hadn't been subpoenaed yet. 

At the time, Cogan said, Fumo was relying on "his father-figure, a lawyer that he looked up to." Cogan then read the notes taken by one of Sprague's lawyers. The notes say that Fumo told the lawyers that he believed he was under no obligation to save emails and documents "unless you have a subpoena."

The next line in the notes: "RAS (Richard A. Sprague) did as well."

"Words say what they mean," Cogan told the jury. "Not what Mr. Sprague and the government says it means."

The next document Cogan showed the jury was a letter from criminal defense lawyer Robert Scandone to Sprague. In the letter, Scandone explained that in response to a subpoena for documents from the Citizens Alliance for Better Neighborhoods, Scandone had advised Fumo that he could carry on with "the normal course of business." That meant "business as usual in the senate office," Cogan said, namely deleting emails and wiping laptops and BlackBerrys.

Cogan displayed more emails from Fumo to Sprague, to show that Fumo had notified Sprague back in January 2004 that his office was "taking things off the server," which meant wiping emails in mass. In one email, Fumo asked Sprague if it was "OK to do this," Cogan said, and that Fumo told Sprague he would continue with business as usual, unless Sprague advised him differently.

In another email on the same topic from Fumo to Sprague, dated Feb. 18, 2005, Fumo wrote, "Dick, I need some direction here. What policies should we start going forward with?"

"He's seeking further advice from his father figure, his closest friend," Cogan said. "He wants to know the right thing to do."

Cogan said that Sprague also appeared before the previous judge in this case, William H. Yohn, and claimed that "no one in the Sprague firm" had any indication that Fumo's staffers were doing any deleting or wiping. The occasion was an April 2005 hearing held to determine whether Sprague should be disqualified from representing Fumo, because of an alleged conflict of interest.

But evidence in the case contradicted Sprague's assertion that he didn't know about the ongoing wiping and deleting in Fumo's office, Cogan told jurors. In December 2004, Cogan said, two lawyers in Sprague's office, Geoffrey Johnson and Mark Shepherd, interviewed former Fumo staffer Leonard Luchko, who told the lawyers about the wiping and destruction of Fumo's PC cards that carried his computer files.

"Luchko tells the Sprague law firm it's been going on since I got there," Cogan told the jurors. 

"The evidence is utterly clear there's no criminal intent here," Cogan told jurors. Cogan also brought up a press conference held by Sprague and Fumo, back when Sprague was still representing the former state senator. At the press conference, "this man, this father figure" told reporters, "My client was relying on advice of counsel" when he deleted emails, Cogan said.

Cogan also produced a letter Sprague wrote in 2007 to Congress, on behalf of Fumo, while Sprague was still Fumo's lawyer. In the letter, Sprague complained to Congress that Fumo was the victim of a political prosecution. But the part of the letter that Cogan wanted jurors to hear was that Sprague also told Congress that Fumo had "a long standing document retention policy." And that it was "uncontroverted" that Fumo had relied on legal advice "albeit erroneous," Sprague wrote, that Fumo's staff could continue to delete emails unless they were hit with a subpoena.

Cogan began his closing statement by telling jurors, "I'm exhausted." Cogan said he's been practicing law for many years, but that he's never been through an ordeal like the Fumo case, now in its 20th week.

Cogan said that in the last nine months, he'd spent more time with co-defense counsel Ed Jacobs, than with his own wife. Then, in an attempt to make some sense out of the long case, Cogan brought up a book his grandmother used to read to him, Alice in Wonderland.

The defense lawyer said a professor in law school once assigned the class to read a chapter of Alice in Wonderland. Cogan said for once, he was ahead of the class because, thanks to Grandma, he knew Alice cold.

What his law professor wanted the law students to hear was when the queen said, "Sentence first, verdict second."

Cogan talked about the presumption of innocence in a criminal trial, and the government's obligation to prove its case beyond a reasonable doubt. He suggested that the government had started out the Fumo case with a conclusion, and had tailored the facts to fit that conclusion.

Cogan said the government began its investigation of Fumo by believing that the former state senator, now facing a 137-count federal indictment, was guilty of extorting $17 million from PECO, and attempting to extort $50 million more from Verizon.

As proof, Cogan went back to the first question asked the first witness at the first grand jury hearing. The witness was told by prosecutor Pease, that he was brought in to talk about what happened with PECO and Verizon, Cogan told the jury.

"They start this investigation believing extortion," Cogan said. "They were wrong."  Instead, what Fumo did with PECO was nothing but "exceptional," Cogan told the jury. Cogan then recapped Fumo's version of the PECO story. That the state senator was worried that the electric giant was going to get a free pass from the state Public Utility Commission when it sought permission to pass on to consumers billions of dollars in bad debts run up on failed nuclear power plants.

So Fumo did something no legislator had done previously, Cogan said. He filed a lawsuit to be included in the PUC hearings as both a state senator and an energy customer. All of a sudden, Cogan told jurors, all those consumer watchdog groups that usually get their teeth kicked in before the PUC suddenly have a new champion.

"There's a new sheriff in town," Cogan said. "All the consumer groups line up behind Fumo."

After some "knock-down, drag-out litigation," PECO knows "they have to deal with him," Cogan said. For PECO, "there's billions involved," Cogan said. That's why they agreed to Fumo's request for a rate reduction of 8 to 10 percent a year, from 1999 to 2006. In 2006, the rates are then rolled back to 1996 rates, thanks once again to Fumo, Cogan said.

During the litigation, Cogan told the jury, Fumo's chief legislative counsel, Christopher Craig, learned that consumer groups had sometimes been successful in striking side-deals with utilities, and securing up to $3 million.

That's when the state senator strikes his own side-deal with PECO, accepting the utility's offer of $17 million, to be donated to the Citizens Alliance.

That $17 million amounts to "pennies on the table," compared to the billions that PECO has at stake with its bad nuclear power debts, Cogan said. And Fumo uses the money from PECO to fund two new charter schools, and rehabilitate several blocks of Passyunk Avenue, Cogan said.

Every PECO customer in the commonwealth owes Fumo a debt of gratitude for his brilliant and daring strategy, Cogan told the jury. But instead of congratulating Fumo, the federal government indicted him, and charged him in a 264-page indictment with 137-counts of fraud, obstruction of justice and filing false tax returns.

But in all those allegations of corruption, Cogan told jurors, there were "no bribes, no kickbacks, no instances of selling one's own office."

Cogan reminded jurors of what he said in his opening statement back in October, that "every aspect of my client's life would be on display in this courtroom." Cogan said that what was on Fumo's mind, and all of his motivations, after 20 weeks of trial, were now also abundantly clear.

Cogan talked about Dottie Egrie, Fumo's former girlfriend that he dispatched a detective to spy on because he was "obsessively jealous" of Egrie after she dumped him. Cogan told jurors that if anybody had the right to be angry with Fumo for his transgressions, it was Egrie. Fumo then reminded jurors of what Egrie told the jury about Fumo. He may have been "socially retarded," Cogan said of Egrie's testimony, but she also said, "I always knew him to be ethical."

Fumo apologized to the jury for some of the state senator's often obscene emails, that also "revealed a boorish and dictatorial nature."

But the evidence in the case also showed that Fumo operated "with no intent to defraud," and that all the f-bombs in the world won't change that, Cogan said.

Cogan is expected to conclude his closing statement when court reconvenes at 10 a.m. Wednesday. He will be followed by Ast. U.S. Attorney Bob Zauzmer, who will offer the government's rebuttal. The judge is expected to give some final instructions to the jury. And then the jury will begin deliberating the fate of Vince Fumo, and his co-defendant, Ruth Arnao, former executive director of the Citizens Alliance.