Wednesday, April 11, 2007

The Ford Trial: Do the Scales Balance More Than Expected?

Posted By on Wed, Apr 11, 2007 at 4:00 AM


The one thing all observers of the John Ford trial have noticed is the night-and-day difference between the astute defense – both tactical and strategic -- of Ford’s lawyer Mike Scholl compared to the inept rollover performed by lawyer Coleman Garrett at Roscoe Dixon’s expense last year.

Garrett, who spent the first few days of trial utterly unable — either from incompetence or indifference — to find any ground on which to defend his client, finally gave it up when, on direct examination of ex-state senator Dixon, he himself forced the poor man into abject confession, then flailed away at the government for wickedly creating the bogus E-Cycle computer firm as a means of entrapping hard-pressed legislators.

The result? A win by default for the federal prosecutors, who — on the degree-of-difficulty scale — have been shooting fish in a barrel with these Tennessee Waltz cases. That’s a hard truth, maybe, but it’s a home truth. How can you lose when you devise the crime itself, go looking for the softest touch you can find, then stay after him until he succumbs to your arsenal of temptations, then, posing always as the prefabricated perp’s confederate, tape and film him in the act from every conceivable angle on every conceivable occasion. Then: Gotcha!

Shorter version: Roll out a barrel, fill it with water, throw in some fish, and fire away!

No, this is not meant as disparagement of the U.S. Attorney’s office, nor of the F.B.I., nor of the courtroom prosecutors (of whom the hard-working, no-nonsense Tim DiScenza may be the very model). But consider: Which of us should rejoice at the bust and subsequent public degradation of a known drug addict — one who might even have privately resolved to go cold turkey but for the fact that a tray loaded down with his favorite jones was shoved in front of him by friendly hail-fellow-well-met types, repeatedly, until he partook of it.

Which is to say: There is public corruption out there that is far more dangerous, committed by perpetrators of vaster influence and empowerment, who are more cautious, more protected, more mercenary, and considerably less likely to be caught without the expenditure of serious investigative effort. Barrel-proof, as it were. Consider only the highly placed persons, public and private, responsible for the misappropriation of $6 million in federal money so as to build the NBA Grizzlies’ owners a for-profit parking garage? Isn’t that, more than arguably, a federal offense?

The fact is that the cornucopia of documentary evidence that has been, and will be, introduced to prove John Ford’s guilt will not, by itself, guarantee a successful outcome for the prosecution. That was amply illustrated by attorney Scholl’s skillful handling Wednesday of the government’s very first witness, FBI special agent Brian Burns.

In his cross-examination of Burns, Scholl made the agent appear hazy as to just what the FBI’s own procedures were in two important matters: which public officials are legitimate targets for a sting and what standards should apply to the recruitment and conduct of undercover informants. Then Scholl demonstrated that the Bureau’s mandates for both issues had shifted over the years and might not have been applied in any rigid sense, anyhow.

Well-paid informant Tim Willis, it turned out, had operated beyond FBI oversight in two important ways — by using the government-furnished “E-Cycle” office in downtown Memphis for his own profit, treating the facility as a set and base of operations for a private film project of his own, and by smoking marijuana with one of the subjects of the larger FBI probe. (Reporters who’d been in the courtroom fell to speculating out loud later on: Who smoked dope with Tim Willis?)

Willis, who had already managed to exculpate outstanding felony charges of his own by working with the FBI, and who received a government stipend of $6000 a month, plus expenses, for doing so, was by Burns’ account barely even chastised for the rogue film venture, and went unmolested for the drug use.

Through his cross of Burns, Scholl was able to construct a larger portrait of a operation whose principals, to further their sting, lived lavishly — consuming mountains of public money, driving “high-end” luxury cars, imbibing impressive quantities of food and drink, entertaining their marks aboard confiscated yachts, and staying only in the finest hotels. All of that, Burns testified, was necessary to further the image expected of them by the legislators and lobbyists they were after. When in Rome, etc.

The problem was that the resultant storyline blurred distinctions and gave the jurors, all stoutly working-class in appearance, a plausible alternative to the usual cops-and-robbers, Good vs Evil scenario. Romans here, Romans there, and just what, exactly, is the difference? Scholl forced an admission from Burns that a greedy Willis even put in for reward money in the aftermath of the Tennessee Waltz indictments.

Then there was the issue of how it came to pass that defendant Ford — not targeted on the front end of the operation, as the government readily conceded — ended up being a person of interest at all. That’s where Scholl made the government’s formal procedures appear most anomalous. How, in the jargon made locally famous in the Roscoe Dixon trial, did the senator become “predicated”? I.e., what fact established the prior disposition to commit crime that the FBI’s procedures called for and without evidence of which the entire pursuit of Ford and the avalanche of incriminating recordings might be invalidated?

That issue formed the basis for much the afternoon’s Q and A, and it continued after jurors were dismissed for the day with a 30-minute sidebar that ended with both sides getting half a loaf apiece. The government won the right to present a recording in which Ford bragged to the FBI agents about receiving an expensive watch from local developer Rusty Hyneman. The idea was that he’d used his influence on Hyneman’s behalf and got that payoff for it. (One problem: As was already noted in a preliminary hearing, Ford didn’t get the job done for Hyneman up in Nashville.)

What the defense received from presiding Judge J. Daniel Breen might turn out to be an even more valuable gift, however — express permission to pursue the very defense of entrapment that had been denied Dixon. If Scholl is able to make that defense work, the multiple others which he also got license to pursue won’t be necessary — all those heaps of recordings and other evidence notwithstanding.

Be not mistaken: The smart money’s still on the government. But don’t be surprised if this trial turns out to be a closer contest than expected.


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