Friday, May 20, 2005

Official Misconduct

Media, prosecutors, and pols grope for fairness, consistency, and "the right thing."

Posted By on Fri, May 20, 2005 at 4:00 AM

The potential jurors, 150 of them, had been summoned to the Mid-South Coliseum to hear their orders. Most of them had made arrangements, at some hardship, to miss a week or more of work. A block of hotel rooms had been booked for the jurors and alternates who would be chosen from the jury pool and sequestered while they heard the case. The judge, Criminal Court judge Paula Skahan, had cleared her busy court calendar for trial. Defendants Shep Wilbun, Calvin Williams, and James Fellows and their attorneys were prepared to fight the charges of official misconduct.

And on the second day of jury selection last week, the case suddenly and unexpectedly collapsed. You can all go home, jurors. You too, defendants. But don't say anything, because you're under a gag order until November.

No trial. No dismissal. No comment.

It was the latest in a series of cases involving allegations of corruption in Memphis, Shelby County, and state government that have raised more questions than answers.

The list includes Senator John Ford, under fire from state and federal investigators for business dealings and campaign contributions; former Shelby County medical examiner O.C. Smith, accused of staging an attack on himself but freed after a mistrial in federal court; former high school football coach Lynn Lang, who got no jail time after pleading guilty to selling a star player; former Juvenile Court employee Darrell Catron, who still has not been sentenced more than two years after pleading guilty to federal charges; the late Chancellor Floyd Peete, accused post-mortem of fixing a case; and day-care brokers WillieAnn and John Madison, whose 21-month sentence in March was deemed so light by U.S. attorney Terry Harris that the prosecutor made a rare public objection.

Wilbun, a former Memphis city councilman, Shelby County commissioner, and candidate for Memphis mayor, set the tone for his aborted trial when he held a brief mini-press conference outside the courtroom on the morning that jury selection began.

"Shep Wilbun is about doing the right thing," he said.

The problem is that no one -- including the media, prosecutors, and politicians and government employees themselves -- seems to know exactly what that is. Enforcement of laws against public corruption has, in several cases, been inconsistent, indecisive, and interminable. Overlapping state and federal investigations, recusals by Harris and Shelby County district attorney Bill Gibbons in some cases, and the media's thirst to get to the bottom of things have added to the confusion. Here's a closer look at the cases mentioned above and where they stand today.

· Despite the gag order, the Flyer was able to cobble together a reliable account of what happened in the Wilbun-Williams-Fellows case from interviews with various parties.

The accusation involved a $1,500 payment to the family of a female employee of the Juvenile Court clerk's office to hush up a sexual-assault complaint. Wilbun was clerk from 2000 until 2002, when he was defeated, 49 percent to 48 percent, by Steve Stamson following a mud-slinging campaign.

The accusation was investigated by the Tennessee Bureau of Investigation. Gibbons was briefed on the case and promptly recused himself because of a close friendship with Williams, the former chief administrator for the Shelby County Commission. Gibbons is a former commissioner and, like Williams, a Republican Party activist. Special prosecutor John Overton took the case and presented it to a Shelby County grand jury, which indicted Wilbun, Williams, and Fellows.

The defendants declined an offer of diversion, which would have amounted to dismissal of the charges if they stayed out of trouble. Almost a year later, the case came to trial. Meanwhile, the judge to whom it was assigned, Bernie Weinman, retired and was replaced by Skahan. The trial was first set for February 14th, which was the day Skahan was sworn in, so it was reset for May 9th.

Jury selection progressed slowly, with attorneys for the three defendants challenging several potential jurors and making the sort of arguments usually heard at trial. It became apparent, as one participant said, that "we could have been there forever" because each of the attorneys had multiple challenges, or opportunities, to strike jurors.

In the middle of the second day, Overton and defense attorneys made a deal similar to the diversion offer that had been on the table earlier: The case is officially continued for six months. The defendants will pay court costs and must obey the gag order. There will be no criminal charge on their record if the deal holds until November.

"It's unusual but it happens," said Overton, when asked about the timing. For his part, Gibbons said, "nobody in this office to my knowledge has had any contact with the special prosecutor."

Williams plans to write a book about his government adventures and settle some old scores. He and friends say he has a contract with Simon and Schuster to publish it. Gibbons said, "I guess I'll be in his book."

Burning question: Why didn't prosecutors ditch this case before taking it to the grand jury or bail out of it before starting jury selection?

· Darrell Catron pleaded guilty to federal charges of embezzlement while he was working for Wilbun in the Juvenile Court clerk's office. He made his plea in January 2003 and was a likely witness against Wilbun had he gone on trial.

Catron's sentencing has been set and reset four times and is now set again for July 26th.

Burning question: If there's a right to a speedy trial, how about a speedy sentence?

· Senator John Ford has taken the heat off Mayor Willie Herenton as the public's favorite whipping boy. The year's most popular wedding video shows Ford's wedding reception for his daughter at The Peabody, which was paid for in part with $15,000 of campaign funds. For this, the state Registry of Election Finance fined Ford $10,000 last month.

The line doesn't get much thinner than the one between proper and improper use of campaign funds. Three years ago, then Shelby County mayor Jim Rout's family used campaign funds for a Father's Day surprise party, but the registry and the local state prosecutor did nothing.

Burning question: Can Rout continue to dodge bullets?

· The last chapter of the Lynn Lang and Logan Young football recruiting epic is scheduled to be written June 9th, when Young is sentenced in federal court. However, Young's health (kidney dialysis) makes that date uncertain. Lang, the government's star witness against Young, got a no-prison sentence from U.S. district judge Bernice Donald, based on erroneous information in his probation report, which said he had a job at a school in Michigan where he had actually been fired. Young will be sentenced by U.S. district judge Daniel Breen, who presided at his trial.

Burning question: Could Young mis-state his job/financial status or his much-reported drinking habits in his probation report and get away with it?

· Judge Donald handed out another light sentence in the day-care case against WillieAnn and John Madison, but this time federal prosecutors sent out a press release noting that "the court imposed sentences below the guideline ranges over the objection of the United States." The guideline sentencing range was 41-51 months incarceration. WillieAnn Madison got 21 months in prison and restitution of $751,832, while John Madison got 10 months in prison and $564,833 in restitution. Because of a change of federal policy, judges can override sentencing guidelines.

Burning question: Why is Donald such a light sentencer? And why do prosecutors selectively object to her sentences?

· O.C. Smith will not be retried on charges of staging his own bizarre attack with a bomb and barbed wire, despite the protests of the Bureau of Alcohol Tobacco and Firearms. A federal court jury was unable to reach a verdict in his case. Smith says the attacker is still out there.

Burning question: Why isn't anyone taking Smith seriously or, alternately, demanding that he be retried and, if convicted, forced to repay the substantial cost of investigating a bogus case, as in the "runaway bride" from Georgia, Jennifer Wilbanks?

· Floyd Peete is charged by association with conspiring with businessman William B. Tanner to fix a case in which Tanner was involved. Tanner's next report date is June 3rd, but his health -- he is battling cancer -- makes the trial date hard to peg. A key witness is Peete's former son-in-law. Peete died in Florida in 2002, and the investigation began after that.

Burning question: If a judge is the type who fixes cases, does he fix just one? ·

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