Was a high-profile Alabama public corruption case doomed by the sheer complexity of trying nine defendants at once?
Or did Washington-directed Justice Department attorneys miscalculate their strategy as they parachuted in to try the case?
Those are questions being asked by attorneys and others who kept a close eye on the first trial, which resulted in acquittal on many counts and a hung jury on others.
“There is no doubt these lengthy examinations and re-examinations tested the jury’s attention and patience,” the department said in a recent court filing signed by a trio of Washington DOJ officials –Section chief Jack Smith, Criminal Division chief Lanny Breuer and Eric G. Olshan, a trial attorney in the Public Integrity Section.
“Hotshots” is what the Birmingham News’s John Archibald called the Washington-based prosecutors from the Public Integrity Section who took a leading role in the politically polarizing Alabama case, in which lobbyists were accused of bribing state lawmakers to get a referendum on whether electronic bingo machines should be allowed in state casinos.
“The Justice Department blundered by minimizing the role of Alabama prosecutors Steve Feaga and Louis Franklin, by forcing them to be led by Washington-imposed hotshots who couldn’t tell grits from gravy,” wrote The Birmingham News’ John Archibald in a column Aug. 12. “It failed to trust those who know the landscape best.”
But a DOJ spokeswoman said the public integrity section has had many successes. “From courtrooms in Puerto Rico to Alabama and hundreds of places in between, Public Integrity Section prosecutors have convicted public officials and others all across the country,” said spokeswoman Laura Sweeney. “That’s what the office was created to do, and has done well for decades.” Sweeney said that convictions of 13 people in ten trials since the first of the year in several states, including Kentucky, Virginia, Alabama and Georgia demonstrate the section’s success.
Critics of the prosecution say the Washington prosecutors — which included Brenda Morris, now stationed in the Atlanta U.S. Attorney’s office and who also took a beating for her role in the bungled public corruption case against the now-late U.S. Sen. Ted Stevens (R-Alaska) — didn’t understand Alabama politics and made prosecutorial blunders.
The government admitted to one error in its Aug. 17 filing before Judge Myron Thompson in the Middle District of Alabama: It now says it shouldn’t have tried all nine defendants at once. The arrangement led to “juror confusion” in a two-month trial that led to the acquittal of two defendants on all counts, the acquittal of seven defendants on a variety of counts and a deadlocked jury on the remaining “core bribery allegations,” the filing said. The government is now asking the judge to split up a retrial into more manageable units of defendants.
The government also wants the judge to oversee a meeting between prosecutors and the members of the hung jury, so prosecutors can get a better understanding of the outcome of the trial.
In the bingo case, prosecutors sought to persuade jurors that Alabama casino owner Milton McGregor abandoned legal lobbying efforts and turned to bribing state lawmakers.
“This was a big case for the department – this was one of their marquee cases – and it has been a bungled mess from the beginning,” said Doug Jones, a former U.S. Attorney for the Northern District of Alabama during the Clinton administration.
Jones – who represented accused casino owner Ronnie Gilley for part of the case but withdrew in March before Gilley pleaded guilty and agreed to testify for the prosecution – said lawyers from the Public Integrity Section seemed not to be on the same page as their agents and supervisors during discovery proceedings.
“Public Integrity made representations to the court early-on about reports and discovery that just were not true, and we knew they were not true when they were made,” Jones said. “They said they had searched and provided everything to us … when in fact they had not done that.”
Another episode of the section’s difficulties features a face familiar to those who have followed the Public Integrity Section’s tribulations: Morris, a senior litigation counsel with the Justice Department’s Public Integrity Section who also helped lead the prosecution of Alaska Sen. Stevens that was dropped after the government said it failed to turn over certain evidence to the defense.
During a detention hearing on March 7, 2010, Morris seemed to have particular trouble with the facts and statutes involved in the case.
“Unfortunately, we’ve probably wasted a lot of time,” District Judge Myron Thompson said in court transcripts. “Ms. Morris has really sent us down a rabbit trail on this.”
And things got worse as the trial progressed, Jones said, with one of the prosecution’s star witnesses, state Republican Sen. Scott Beason, caught on tape calling black people “aborigines” in recorded evidence that was played before the jury in this heavily African-American state.
Former Alabama Rep. Artur Davis, a Democrat who served as an Assistant U.S. Attorney for the Middle District of Alabama in the 1990s, used less inflammatory language than Archibald the newspaper columnist. But he still faulted prosecutors for failing to show jurors that “this wasn’t business as usual” and thinking they didn’t need to learn local politics.
“Alabama is a very racially divided state, and it’s a state with strong political alignments,” Davis said. “To overcome that … you have to understand that a lot of the African American jurors are very pro-bingo… The only hope you have to overcome that as a prosecutor is to make the case about corruption and not get caught up on bingo.”
Now, as the DOJ prepares for a retrial slated for Jan. 9, 2012, the going looks tough for the section’s prosecutors. But Public Integrity isn’t without defenders, who say the recent failures have far more to do with difficult circumstances than the prosecutors themselves.
“It’s not necessarily a coincidence that these same prosecutors are showing up in these cases, because they’re viewed internally as the most capable,” said attorney Peter Zeidenberg, who formerly spent 17 years with the department, including working in the Public Integrity Section. “But that does not necessarily translate into winning the case.”
For all its high-profile troubles, Zeidenberg said the Public Integrity Section’s troubles in Alabama simply reflect the challenges prosecutors face by taking on tough cases. Section lawyers must work in unfamiliar jurisdictions and often face well-resourced opponents, he said.
“The outside lawyers don’t know the area very well, and everyone doesn’t know them very well – that’s part of the job,” Zeidenberg said.
“They’re good trial lawyers,” he added. “It’s just that these cases – whenever it goes to a jury it’s a bit of a crap shoot. And when you get a deep-pocketed defendant or these people who can’t take pleas due to their position in life, you just know it’s going to be a slugfest.”
Sweeney said that in many cases, Public Integrity lawyers work with local assistant U.S. attorneys. That was the case in Alabama.
“Our prosecutors often work with AUSAs who, along with their legal acumen, have important experience with local practices and rules. Differences in how courts operate, public perceptions, jury pools and the general culture of a community are commonplace for PIN attorneys, and they know how to adapt,” Sweeney said, using the internal Justice Department abbreviation for the Public Integrity Section. “In fact, PIN prosecutors are hired because they thrive in a diverse array of cultural and geographic atmospheres. While they may have an office in Washington, D.C., they come from all over the country and bring credentials from prosecuting in jurisdictions from coast to coast.”
And she said it often is easy to play armchair quarterback. “Outside observers will often have thoughts on how a case could be handled, but we typically find that those with first-hand knowledge of the entire case - its witnesses, defendants and evidence – are the best judges of how to manage the case,” she said. “Certainly there are always things we can learn when a trial results in a hung jury – our prosecutors adjust as necessary and we move forward.”
This article was corrected to reflect that former Rep. Artur Davis served as an Assistant U.S. Attorney in Alabama, not as a U.S. Attorney.