Fumo's Future

What you can expect to hear in the state senator's trial.

by Tom Namako

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Published: Sep 10, 2008

Evan M. Lopez (CLICK IMAGE FOR LARGER VERSION)

We already know where to find the high drama of the federal government's case against state Sen. Vincent Fumo — spied-upon ex-girlfriends testifying! Once-loyal consultants turncoating! Ed Rendell! — because God knows, the daily papers, television stations, blogs and, yes, City Paper itself have been touting them.

And in all fairness, some of these salacious moments could actually prove substantial, especially when it comes to Fumo's former co-defendants-turned-prosecution-witnesses Leonard Luchko and Mark Eister. If they take the stand with guns blazing, their intimate knowledge of Fumo's everyday life could prove very persuasive to the jury, once its 12 members are assembled later this week or early next week.

But there are other, arguably more important pieces of this trial. Prosecutors will try to convince a jury of 12 regular Joes/Janes that the secrets of public corruption can actually be found in e-mail messages, while defense attorneys claim that all of these alleged shady dealings are nothing more than one big, possibly ill-motivated misunderstanding.

It is in this argument — some of which, says Peter Vaira, the former U.S. attorney who indicted Fumo nearly three decades ago for mail fraud, many viewers will consider to be "inaction" — that Fumo's freedom and future will be determined.

It's important to first understand what, exactly, federal prosecutors say they have on Fumo, beyond general terms like mail fraud, wire fraud and obstructing justice. Fumo, they say, used the public's money to buy an amazing array of stuff for himself, and then tried to hide that from authorities.

This happened, the government says, in three main parts. First, Fumo allegedly used staff members — who were technically employees of the state Senate and whose paychecks were paid by taxpayers — to act as his personal servants and political operatives. A Senate clerk was actually his house cleaner and a budget analyst acted as Fumo's farm supervisor, the indictment says, citing one e-mail from Fumo to his Senate secretary allegedly asking, "Where are we with the pasture fencing?"

Second, prosecutors say Fumo used the coffers of a nonprofit organization, Citizens' Alliance for Better Neighborhoods, to buy personal items ranging from shampoo to power tools.

Finally, the government says that once Fumo realized investigators had caught on to this alleged behavior, he tried to cover up the paper trail by having his staff delete e-mails, and wipe out BlackBerry data.

There are 139 total charges of this stuff.

But for prosecutors, just proving to 12 people that these alleged illicit transactions actually happened isn't enough: They have to prove that Fumo knew it was happening and that he made it happen. "Disbursements that just seem questionable isn't all there is to it," says Daniel C. Richman, professor at Columbia Law School in New York City. "It's critical for the government to show that the defendant well knew that what he was doing was wrong."

How does the government intend to pull that off? In the Corey Kemp case — the one that involved the bugging of Mayor John Street's office and landed city Treasurer Kemp in jail — there were juicy wiretapped conversations for the jury to listen to. The government's evidence in Fumo's trial is mostly e-mails — or, to be cynical about it, boring text documents. The prosecutors have to make jurors feel like the evidence is so overwhelming that Fumo must be guilty, while at the same time making sure those jurors actually understand what the evidence is saying. They expect to take about two months to do this.

And what will Fumo's lawyer be doing? In complex white-collar cases, the defense usually takes a broader approach than the prosecution, trying to convince the jury that all this stuff is too complicated, and that the defendant was too busy to notice that anything beyond normal business transactions was going on. "This happens often in white-collar cases," Vaira, who now works on criminal defense matters, says. "They'll say, 'Usually, these transactions appear normally, and the prosecutors are just putting a spin on it, and this is how it works and there's nothing wrong with it.'"

This is why it's crucial for the prosecution to prove that Fumo wanted incriminating e-mails deleted, Richman says. "When there's a question of whether someone intended to commit a fraud, the jury finds it helpful to learn that they obstructed justice. When someone tried to destroy evidence, it implies that the person is guilty of something serious."

That's where the possible testimony from two computer technicians — and recent chatter about Fumo's former defense attorney and estranged friend, Dick Sprague — comes into play. All three witnesses, prosecutors hope, could shed some insight on Fumo's role in the alleged e-mail destruction.

It's still not clear whether Fumo thinks he can counter that testimony by taking the stand in his own defense. (Dennis Cogan, Fumo's attorney, didn't say last week whether Fumo would be called as a witness.) Legal experts are split on whether it would be a good strategy.

On one hand, because Fumo is intelligent and can be disarmingly charming, he could elicit sympathy from the jury.

But testifying could also backfire. Jack Meyerson, a local attorney who cross-examined Fumo for the government in the 1980 trial (the jury convicted Fumo but the judge overturned the decision), says, "I remember cross-examining him. Frankly, I don't have a memory of him being anything exceptional. If you ask the right questions and don't let him be evasive, you can accomplish your purpose. There's no magic — just stick to facts."

The other thing both sides need to worry about is political theater, and its potential effect on the jurors. In the time of Michael Nutter and Barack Obama, says Lawrence Lustberg, a Newark, N.J.-based attorney who in 2005 defended a Commerce Bank executive in the City Hall corruption trial, Americans (and therefore juries) "are disaffected and want reform of our government. ... Now, a criminal case is not the place for reform. But even so, jurors may find crimes even when there's nothing more than the appearance of something wrong." This, he says, is making white-collar cases increasingly hard to defend.

There is a possible rhetorical defense that the Fumo camp could use, though to do so would require some courtroom creativity: Fumo's attorneys may try to tell the jury, as his former attorney once argued in a memo, that the senator is a victim of selective prosecution by an out-of-control Bush administration. That line of argument would be barely, if at all, admissible in court, says Richman. "It'll all pretty much depend," he says, "on how far the judge lets it go."

(tom.namako@citypaper.net)

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