Last week, Fumo and Arnao joined the thin ranks of defendants not in jail who want their trial done faster, with a motion by Fumo's lawyers to split the Independence Seaport Museum charges, for which no evidence has yet been presented, into a separate trial.
Before the trial, Judge Yohn denied a similar request (though disfavored, it's a discretionary call to bifurcate a trial), which I think was the appropriate decision, given how the alleged obstructions of justice arose as a response to the totality of the circumstances, including investigations into, and press reports about, the ISM. I doubt they'll succeed now, but it's worth reviewing why they're trying.
Partly for psychological reasons, most civil and criminal defendants who don't have an immediate concern – like sitting in jail or suffering continued damage to their reputation – will use every available legal mechanism to slow down the rush to judgment. Why, then, is Fumo moving to speed up his trial? (Other than, obviously, to combat the sheer boredom of hearing weeks of testimony from every gardener and computer technician who ever worked for him.)
I see two primary issues. First, the defense wants to disarm the government's strategy of proving Fumo's intent through circumstantial evidence that his whole lifestyle was framed by the use of "OPM" for personal gain. One of the biggest weaknesses in the prosecution's case is the lack of smoking guns compared to most white collar criminal trials. Enron, for example, had Chewco, the obvious purpose of which was to hide liabilities, enabling Enron to inflate the profits it stated to investors. In the only other prosecution for a Pennsylvania legislator for misusing legislative staff, the Habay case, the facts were straightforward. Here's an example:
Rebecca Coleman testified that she was employed in the defendant's office from June 1999 through January 2000. Her first assignment was to plan a fundraiser for July 29, 1999. She spent approximately one half of her working hours on this campaign related activities. She did this work at the defendant's direction. In performing these duties, she used the office facilities provided to the defendant for his official duties. She also used the telephone, fax machine and computer located in the district office. She did the same for another fundraiser in November, 1999.
Commonwealth v. Habay, 2006 Pa. Dist. & Cnty. Dec. LEXIS 482 * 19. That's quite different from the case here, where there's no dispute that Fumo's staff usually worked well beyond the 37.5-hour workweek imposed by Senate staffing rules. Did Fumo's staff put in their 37.5-hours for the Senate every week and then, say, 13 more hours for Fumo? That wouldn't be illegal. More importantly, if the numbers became uneven at times – say, a staffer sometimes putting in only 30 hours for the Senate – can we really say that shows Fumo had the criminal intent to defraud the Senate?
The Citizens' Alliance and Independence Seaport Museum charges have similar problems, which I'll address more in-depth later. For now, consider that The Franklin Institute spends over a million dollars a year on fundraising, a perfectly respectable amount that nets it more than 20-times that in contributions. There would be nothing wrong per se with The Franklin Institute compensating a fundraiser with a wide array of telescopes and molecular models, so what's criminally wrong with Fumo's power tools?
Even the more egregious examples -- what business does a South Philly nonprofit have with dunes on the New Jersey shore? -- lose their sting in the absence of direct evidence of intent. Arnao didn't keep two sets of books or a separate account for "OPM." Fumo didn't tell the Senate staffers that they had to keep quiet about the trips to Martha's Vineyard. Thus, the prosecutors have little choice but to throw everything in the pile to arrange a bonfire by the end, a sense of inevitability that Fumo must have known the wrongfulness of what he was doing, that Fumo's "OPM" really was code for taking money belonging to others.
In that context, it's easy to see why the defense wants to keep any logs they can out of that bonfire, to prevent the prosecution from drawing what they contend is a comprehensive picture of fraud. Moreover, Fumo's life was downright embarrassing, particularly in these economic times. He made taxpayer-paid staffers work on his house while a community organization bought him half of Home Depot and a museum gave him free rides on their yacht? Citizens' Alliance paid for his trips to McDonald's? I've argued before on this blog that, in general, jurors take their duties very seriously and do not ordinarily resent (or take out their resentment on) defendants like oil companies or corporate executives, but it's always a concern nonetheless. The more of that they can keep out, the better.
Second, once a trial goes more than a week or two, the length of the trial itself becomes a variable. In the fourth week of the Fledderman trial this summer, at sidebar I started arguing an objection when the judge sharply cut me off, told me that I was misrepresenting what happened, and ruled against us. I was shocked (and offended by the accusation) so, at the next break, I went back to the transcript. Lo and behold, I saw what the judge probably had in mind. I even found it in my notes.
How did that happen?
Consider cognitive science.
For one thing, pursuing the notion of a memory as a thing has yielded a surprisingly small set of principles by which we can understand the causes of remembering and forgetting (Kihlstrom & Barnhardt, 1993):
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Elaboration: Memory improves when an event is related to pre-existing knowledge.
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Organization: Memory improves when events are related to each other.
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Time-Dependency: Memory fades with time.
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Interference: The cause of forgetting is competition among available memories, not the loss of memories from storage through decay or displacement.
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Schematic Processing: Memory is better for events that match our expectations than for events that are irrelevant to them, but memory is best for events that violate our expectations.
Memory, Autobiography, History, by Prof. John F. Kihlstrom, UC-Berkeley.
For lawyers, trials begin with intense organization that easily enables elaboration and schematic processing. If they're not careful, everything that happens -- no matter how garbled, incoherent, or illogical -- will appear in their own minds (but not anyone else's) to "fit" their theory of the case.
For juries, trials begin with poor elaboration, minimal organization and no schematic processing: the trial starts with a jury chosen specifically because they're barely aware of the facts and have minimal expectations, then proceeds through awkward sequential question-and-answer sessions. Making matters worse, in a criminal trial the defendant typically goes last. To put that in context, imagine watching The Sopranos not as 86 chronological episodes, but as a collection of multi-hour interviews played back to back, with a third of the witnesses intentionally misleading the jury, a third telling the truth, and a third unintentionally misleading the jury, with Tony Soprano going last.
As such, at trial the jury has to create their own context (the opening statement occurs at the worst time, when the jury has no context whatsoever in which to elaborate, organize or process what they hear), weed through interfering details, and uphold their duty not to judge until they've heard all the facts. It's a tall order. In fact, it's impossible, resulting in more failures of attention, memory and understanding than anyone wants to admit. That's part of why we have so many jurors up there, in the hopes at least one juror has picked up and properly processed each fact presented. I doubt that ever actually happens; there's too much going on.
Rarely does anyone -- judge, jury or attorney -- remember testimony verbatim, they remember themes, perceptions, and a handful of details. In time, details fade, and certain themes and perceptions become more pronounced. In the Fledderman case, I remembered the testimony in the context of our theory of the case, which did not include the parts relevant to the judge, who likely had a broader context in mind when he listened to the testimony.
As the Fumo trial drags on, the passage of time has an increasing impact on the juror's view of the case. Part of Cogan and Jacobsí concern right now is that, after enough time, details and perceptions will fade, leaving jurors with the prosecutors' themes in their mind as if they were their own. Think of Ronald Reagan erroneously recalling the climax of Wing and a Prayer as an actual WWII war story.
Another concern is simply faulty memory. By the end, Zauzmer, Cogan and Jacobs' closings will all reference facts that at least some jurors don't remember or remember differently. Most of that is worked out in deliberations - where one juror has forgotten, others usually remember, and the consensus usually wins. But the longer the trial goes, the more important these variables become, despite having nothing to do with whether Fumo is guilty or not.
Does the length of the trial inherently bias the case against Fumo? That's hard to say – there are simply too many variables to say if trial length helps plaintiffs/prosecutors or defendants, and there are plenty of long cases won by plaintiffs and defendants. But it represents an uncontrollable variable, which both sides tend to avoid. Here, however, the prosecution believes it is worth that risk given their circumstantial case; the defense, unsurprisingly, believes exactly the opposite.
Posted on December 8, 2008 by Maxwell Kennerly
