Fumo Trial Post 12: A Criminal Trial Is Not A Popularity Contest
[Ed - I originally accidentally posted an uncorrected draft with some truly interesting (and incomprehensible) voice recognition errors, hopefully now corrected below.]
And so 62 days of ugly testimony comes to its ugly end. Fumo's defense was short -- largely his own testimony -- and the prosecution's rebuttal was his lawyers, called to rebut Fumo’s testimony that he had been advised he could continue and step up his deletion policies, a rebuttal the lawyers were all too willing to give.
As one observer told me, "I did not think it was possible, but they actually got me to feel sorry for Vince Fumo." Indeed, Fumo has left this saga a pathetic figure, a wealthy and influential man with few friends, no relationship with his own child, spying on those closest to him, surrounded 24 hours a day by people paid to be there, a Citizen Kane on trial for the excesses of his last few years in power.
Which is really a shame. Far be it from me to defend Fumo's conduct on a personal or ethical level, but we don't arrest and convict people for who they are, but rather for what they have done, and Fumo is not on trial for abusing his legislative position to extract multimillion-dollar private (and secret) settlements from major industries, nor is he on trial for lying to everyone in the Philadelphia-area about his connection to Citizens Alliance, nor is he on trial for the dysfunctional and sometimes abusive way he treated his staff, friends and family.
He is on trial for fraud against three particular entities and obstruction of justice. He is on trial for what appear to have been an open secret.
Let's start with part of the Third Circuit Court of Appeals in model jury instructions for criminal fraud, the basis for what the jury was told this morning:
The first element that the government must prove beyond a reasonable doubt is that (name) knowingly devised (or wilfully participated in) a scheme to defraud (the victim) of money or property (or the intangible right of honest services) by materially false or fraudulent pretenses, representations or promises.
A ''scheme'' is merely a plan for accomplishing an object.
''Fraud'' is a general term which embraces all the various means by which one person can gain an advantage over another by false representations, suppression of the truth, or deliberate disregard for the truth.
Thus, a “scheme to defraud” is any plan, device, or course of action to deprive another of money or property (or the intangible right of honest services) by means of false or fraudulent pretenses, representations or promises reasonably calculated to deceive persons of average prudence.
…
The false or fraudulent representation (or failure to disclose) must relate to a material fact or matter. A material fact is one which would reasonably be expected to be of concern to a reasonable and prudent person in relying upon the representation or statement in making a decision (describe relevant decision; e.g., with respect to a proposed investment).
This means that if you find that a particular statement of fact was false, you must determine whether that statement was one that a reasonable person (or investor) might have considered important in making his or her decision. The same principle applies to fraudulent half truths or omissions of material facts.
In order to establish a scheme to defraud, the government must also prove that the alleged scheme contemplated depriving another of money or property (or of the intangible right of honest services).
Does that bear any relationship to what happened with the Pennsylvania Senate, Citizens Alliance and the Independence Seaport Museum?
What, really, should Fumo have told Citizens Alliance, and who would he have told? He was in constant contact with the director, who approved all of these expenses, and the board never even met until well after all of the allegedly criminal activity occurred. Same goes for the ISM – would they have done anything different if he had gone out of his way to tell each and every board member what he planned?
The Senate has a similar problem. It’s not as if Fumo wrote his own checks out of the Senate; did no one ask why he had three drivers? Have they ever asked?
Put simply, the "fraud" that occurred here doesn't bear much of a relationship to how we normally perceive fraud. Fudging the duties of politically-appointed government employees is a disreputable tradition with a long history stretching directly to the present, but only a single example of anyone in the past actually being prosecuted and convicted for it in Pennsylvania, the Habay case.
More tomorrow.
Even if there is no history of someone like Fumo being held accountable for his actions, that doesn't mean that we can't start now.