Alabama: Defense Rests

Taking a gamble, defense rests case in corruption trial
Written by Sebastian Kitchen

Lawyers representing defendants in one of the most significant public corruption trials in the history of the state said they know resting their case Friday without presenting a defense was a gamble, but they do not feel the prosecution proved its case.

Susan James, an attorney for former Country Crossing spokesman Jay Walker, acknowledged it is a gamble, but said she has gambled before and won.

"Sure, there's a risk in everything you do," Joe Espy, lead attorney for VictoryLand owner Milton McGregor, said leaving the courthouse.

Espy and other attorneys also were clear there was a risk with moving forward, with the possibility of a witness for another defendant hurting their client.

"When we rested, we knew the case was over," Espy said.

Lewis Gillis, an attorney for Sen. Quinton Ross, D-Montgomery, said "there's always that risk" by not presenting a defense.

"It's not over. We still have some work to do," Gillis said. "... They're going to get in there and throw some mud and hope it will stick."

Jim Parkman, an attorney for Sen. Harri Anne Smith, said "everything in life is a risk," and it was clear that they were the last ones to go along with the decision to rest in the case.

The other defendants are former state Sens. Larry Means of Attalla and Jim Preuitt of Talladega; lobbyists Tom Coker and Bob Geddie; and Ray Crosby, who was an analyst and attorney for the state Legislature.

They are charged for their alleged role in a scheme in which casino owners and their lobbyists bribed state lawmakers to support legislation that would, if also passed by voters, have legalized electronic gambling in the state.

The nine defendants in the case announced in court Friday that they were resting their case after calling just one witness.

The prosecution presented its case over eight weeks, ending Tuesday after calling 17 witnesses.
U.S. District Judge Myron Thompson said he would hear arguments on pending motions at 9 a.m. Monday.

He said closing arguments would begin Wednesday, when the jury will be sequestered until they complete their deliberations.

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He instructed the predominantly female jury not to read media reports or search the Web.
Espy said he expects closing arguments to be concluded Thursday.

Thompson met individually with each defendant before they left the courthouse Friday.

Prosecutors, unlike several defense attorneys, have not talked to the media during the trial so there was no comment on the defense resting its case.

James said the government has asked for six hours for its closing argument and said she was surprised that prosecutors did not ask for nine hours, one for each defendant. She said defense attorneys have asked for an hour to 90 minutes each.

While some were shocked by the defense's decision to rest its case, Espy said they were close to making that decision Thursday.

He said Bill Baxley, the former state attorney general representing Coker, and attorneys for Ross felt that the one witness called was necessary.

"It was the unanimous decision of the defense that we stop," Espy said.

Espy said they evaluated the evidence and had attorneys working overnight Thursday examining it again until 6 a.m. Friday before finalizing the decision. He said the attorneys talked, and they talked with McGregor and his family before making the decision. But Espy said not presenting a defense was a consideration since they first saw the indictment in October.

Parkman said the reaction of the jury being let out early one day this week also helped with his decision. He said they clapped when they were allowed to leave early. Parkman said that told him "they're through."

"They know the issues," he said. "... That told me they had enough."

Espy said he and his team now have two months of proceedings to go through.

"We feel like we have a fair and impartial jury who has listened to the cross examination," he said.

Espy said the testimony from "two crooks" and "three amigos failed." The "amigos" Espy was referring to were state Sen. Scott Beason, former state Rep. Benjamin Lewis and state Rep. Barry Mask, who cooperated with the FBI and secretly recorded conversations. The "crooks" are Country Crossing developer Ronnie Gilley and his lobbyist, Jarrod Massey, who were arrested with the other nine defendants in October, but then pleaded guilty.

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Espy said those and other witnesses were discredited and that tapes played by the government fell flat. He said that a prosecutor even told the jury in his opening statement that they would not hear a direct bribe on the recordings.

Gillis said Gilley, Massey and Jennifer Pouncy, a lobbyist who worked for Massey who also has pleaded guilty, said they did not talk to Ross about his vote on the gambling legislation and that he made no promises to take any action.

He said they also admitted not returning Ross's phone calls. Gillis also pointed out that, despite Ross's requests, he did not receive a contribution from McGregor or Gilley in 2010.

As a result of all of that, Gillis said, "there was no reason for him to put on a defense."

He asked what else they could have done to improve their standing in the case.

"They just did not have a case against us," Gillis said.

Defense attorneys said leaving the courthouse Friday that they did not feel that prosecutors had met the burden of proof.

"There's plenty of doubt in this. There's a lot of questions," James said.

She said they had talked about not presenting a defense for three weeks, but there were two defendants holding out.

"I would have loved to ... say what I want to the jury," Smith said.

Parkman said they wanted to present a defense, but questioned how it would look if Smith was the only defendant who did. He also said they did not want one of their witnesses to hurt another defendant's case.

"We didn't want to be the only ones to put on a case," Parkman said.

Smith said she would be telling her story through Parkman.

Espy said they began the process of considering whether to present a defense when the prosecution rested its case Monday.

James also said that they were not pleased with the judge's ruling about some of the questioning that was allowed of the sole witness for the defense, Richard Whitaker of the Medical Association of Alabama.

Whitaker talked about a contribution from the association's political action committee to Ross, but federal prosecutor Edward Kang asked him about issues related to Crosby's work and him receiving $3,000 a month from McGregor while also working for the Legislature. Kang grilled Whitaker for hours.

Defense attorneys objected to the questioning.

Gillis said he was shocked that the FBI or federal prosecutors never sent an investigator to talk to Whitaker, who signed the check, about the contribution to Ross.

Prosecutors allege that Coker, a McGregor lobbyist, directed the contribution to the senator to secure the senator's vote on gambling legislation. But Coker also represented the medical association, and Whitaker said it was a physician who requested the association's PAC contribute to Ross and that a panel of doctors approved the contribution.