For Kilpatrick's sake, the best defense may be a good offense - New York News

For Kilpatrick's sake, the best defense may be a good offense

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Kwame Kilpatrick walks into federal court on Monday. Kwame Kilpatrick walks into federal court on Monday.
DETROIT (WJBK) -

This is the second in a two-part series on what lawyers should consider when they deliver their closing arguments this week.  As someone who has witnessed almost all of the trial, I am the closest the lawyers can get to a jury.  And, as a reporter, I am trained to focus exclusively on the facts -- just as the jurors have been ordered to do.

For the sake of argument, each installment will come from the perspective of the arguing party. Today's installment comes from the perspective of the defense attorneys, who will give their closing arguments today and Thursday.  The prosecution gave their closing argument Monday and, because they have the burden of proof, can give a rebuttal Thursday before the case goes to the jury.

There's an old saying in journalism that may serve all three defendants well: Consider the source.

First, there was Emma Bell. The political operative who said she reached into her bra during private meetings in the mayor's office and forked over tens of thousands of dollars skimmed from the money she raised for Kilpatrick's campaigns.

Of course, she also admitted to being a drunken tax cheat with a gambling problem who testified that she took the stand hoping to avoid going to prison.

Weeks later, Karl Kado took the stand to tell jurors that keeping his contracts at Cobo Hall involved letting Kwame Kilpatrick and his dad fleece him out of hundreds of thousands -- Bernard Kilpatrick even stiffed him on rent for his lobbying firm.

He also was forced to acknowledge that he thought he had dementia, paid bribes to lots of folks connected to Cobo in order to hold onto lucrative contracts that gouged exhibitors, and agreed to cooperate with the feds only after receiving a target letter informing him he was in the feds' crosshairs.

Late in the trial, former Kilpatrick best friend Derrick Miller told jurors he acted as the mayor's bag man.

But he also copped to taking bribes and described how he set up a scheme to cash in on a city property management deal that only involved the mayor after he realized he needed Kilpatrick to make the plan work. Ignoring for a moment that his testimony could help put one of his closest friends in prison for most of the rest of his life, Miller's attempt to explain away his cooperation as a way of making amends probably didn't resonate with jurors as much as his admission that he hoped to receive a lesser sentence after the trial is over.

Finally, there was James "J.R." Rosendall, who came across almost as conniving as Dallas' J.R. Ewing -- only without the cowboy hat, cunning, or charm. Recordings showing how he lied to everyone, even conspiring to double-cross the father of the mayor he needed to make the deal happen, left some of us feeling like it would take an acid bath to remove the film that covered us just by being in the same room with him.  

This is hardly a novel approach, I know, but the jury instructions Judge Nancy Edmunds read Monday -- including one that says jurors can find Kilpatrick guilty even if they can't link a payment he accepted to a specific action he took or intended to take or would have taken whether or not he got greased -- must have left prosecutors smiling.

Edmunds said jurors can find Kilpatrick, his dad and his best bud guilty of running a racket even if it didn't have a structure, regular meetings or even a name. (For the record, the feds have been calling it the Kilpatrick Enterprise, but rechristened it the Kilpatrick Incorporated in their closing argument, making me wish I'd copyrighted that term way back when I first started using it 5 or 10 years ago!)

There are other questions defense attorneys can raise that may help establish the reasonable doubt needed to spring their clients. Among the most provocative are:

-- Why would someone as smart as Kilpatrick deposit cash bribes into his bank accounts? This is an especially troubling question because Kilpatrick was not only politically savvy, he was a lawyer who, presumably, knew at least a little about the kind of things that could get him in trouble with the law. Also, he was paranoid. Remember the testimony about buying anti-bugging devices? And Kilpatrick was an acolyte of Coleman Young, perhaps the most investigated mayor in Detroit history.

-- If Bernard Kilpatrick was part of a criminal enterprise involving his powerful son, why couldn't he deliver for his clients? Some of the strongest evidence against Pops, as his son and Ferguson called him, included video of the elder Kilpatrick telling Rosendall he never wanted people to see him taking money. That's just common sense. If people saw the mayor's father taking cash from someone lobbying for a city contract, they might think he was on the take ... and he could end up facing extortion charges (hey, wait a minute ... !).

-- When did it become illegal for hard-nosed contractors like Ferguson to drive bare-knuckle bargains? There's no question Ferguson was a rough customer. But even with his sharp elbows and ties to the mayor, he got squeezed out of a city deal by a suburban firm. This must have been especially galling for Ferguson who, unlike many other Detroit headquartered businesses, had a lot of Detroit residents on his payroll.

The defense should continue to press the point that text messages could be taken out of context and that the government is overreaching.

And even the $90,000 Bobby Ferguson gave Mahlon Clift to deliver to Kilpatrick is not, on its face, criminal.

If others gave Kilpatrick money or gifts hoping to influence him -- but failed to do so -- that's their problem.

While I'd stop pushing how much Kilpatrick got in cash gifts at events celebrating him (I suspect jurors can't relate), I'd remind jurors about the credible people who testified that the mayor's non-profit civic fund DID send them money for benevolent causes.

But my best piece of advice is to ignore any advice from unofficial co-counsel Kilpatrick.

There's little doubt in my mind that he told his attorney, Jim Thomas, that he could have met with mayoral officials in Denver during a tryst with his mistress that was funded, in part, by civic fund dollars. And I suspect Kilpatrick is also behind the Florida A&M honorarium fiasco, in which Thomas tried to explain away a $5,000 tax deduction Kilpatrick claimed that he was not entitled to. The feds showed that the dough came from the civic fund. Thomas said it could have been a proper deduction if Kilpatrick declined or returned a speaking fee at his alma mater. Not long after, he conceded that he had made a mistake.

But the true mistake may have been listening to his client. If he ignores Kilpatrick this time, and is rewarded with an acquittal or hung jury, I'm fairly certain Hizzoner won't hold it against him.

Follow M.L. Elrick's coverage of the Kilpatrick & Co. trial daily on FOX 2 and at www.myfoxdetroit.com. Contact him at ml.elrick@foxtv.com or via Twitter (@elrick) or Facebook. And catch him every Friday morning around 7:15 a.m. on Drew & Mike on WRIF, 101.1 FM. He is co-author of "The Kwame Sutra: Musings on Lust, Life and Leadership from Detroit Mayor Kwame Kilpatrick," available at www.kwamesutra.com. A portion of sales benefit the Eagle Sports Club and Soar Tutoring. Learn more at www.eaglesports.com.

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