A word to the wise in the Kilpatrick, Inc. trial - Dallas News | myFOXdfw.com

A word to the wise in the Kilpatrick, Inc. trial

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DETROIT, Mich. (WJBK) -

This is the first in a two-part series on what lawyers should consider when they deliver their closing arguments next 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 prosecutors, who will give their closing argument first. Tomorrow's installment will come from the perspective of the defense, who will offer their arguments on Tuesday and Wednesday.  -- ML

Prosecutors Need to Make Jurors Understand that THEY Are the Real Victim.

It's not sadism so much as human nature that makes everyone chuckle when they see someone step on a banana peel -- everyone, that is, but the poor schmo who took the unfortunate step.

Beyond a recitation of the facts and how they line up against the law, prosecutors need to convey to jurors that even if they didn't live in Detroit during Kwame Kilpatrick's Reign of Error, they aren't among the giggling practitioners of Schadenfreude -- they're the ones who wiped out.

This isn't some high-minded philosophical point, as in "an injury to one is an injury to all" or "as Detroit goes, so goes the region" -- even though Detroit's problems are like that fart in an elevator that you can't escape as you make your way to the penthouse.

It's a very practical point: Because of the expansive reach of the Detroit Water and Sewerage Department -- which serves about half of Michigan -- virtually every juror has footed part of the bill for Kwame Kilpatrick, Bernard Kilpatrick and Bobby Ferguson's misdeeds.

Consider:

Delays and payments for work that was never done hit all of us in the pocketbook.

Hiring Ferguson even when he wasn't the lowest bidder discouraged qualified companies from bidding on jobs, increasing the cost of projects and potentially lowering the quality of the finished product. This also left fewer tax dollars available to fix other problems -- and there's no shortage of problems in Detroit.

Forcing companies to "pay-to-play" not only rewards unethical and weak-willed business owners, it means they come to view corrupt public officials as their true clients, and not the people who live, work and visit the city in which they're working.

Simply put, prosecutors need to take a lesson from my friend and former colleague Rod Meloni, who says the most important person in every story is YOU.

Prosecutors need to find a way to say: "Ladies and gentlemen of the jury, YOU were the victims. YOU paid the price. YOU need to put an end to this."

This also provides an important counter-punch to one of the defense's most powerful arguments -- that the fat cats who testified they were shaken down can't possibly be victims because they still made millions on city deals.

I found it very hard to feel sorry for any of them. In fact, I felt cheated that THEY weren't on trial, too.

Assuming they told the truth when they said they didn't like getting their arms twisted, they sure got with the program fast! And while they testified that they contacted everyone they could think of to help figure out why they were getting iced out of deals, they never called the authorities who might have done something about it that didn't involve breaking the law.

That said, prosecutors need to acknowledge the government's OWN shortcomings. Specifically, they're slow. REALLY slow. It's tough to expect a business owner to risk losing a contract, get labeled as a trouble-maker and then wait years to see if the feds will bring charges -- with no guarantee there will be a speedy trial or a conviction.

(The slowness is not all the feds' fault; making a strong case takes time and, as they've seen, juries are reluctant to return a guilty verdict without dead-nuts proof that something wasn't on the level. In the case of former Detroit City Councilman Lonnie Bates, the jury convicted him of almost everything but a count accusing him of forcing a city contractor to do free work on his house. Bates never explicitly said: "If you don't do this, I will screw you." But he accepted the free work without question, and the contractor testified that while Bates wasn't specific, he was utterly unambiguous in what he wanted.) 

Still, many of us believe doing the right thing sometimes requires sacrifice. Besides, all of these business folks came to court impeccably dressed, described how fabulously well their companies are doing and stepped out of court into fancy cars that no doubt ended up parked in spacious garages at the end of ridiculously long driveways. Some were downright matter-of-fact that they wanted public officials as friends and the best way to make them friends was to give them stuff. Expensive stuff.

Prosecutors need to acknowledge that these folks are Gucci barf bags who could have been charged with bribery -- if the feds didn't need them as witnesses.

Which brings us to the people who WERE charged with crimes and cut cooperation deals to lessen their punishment.

Prosecutors must show the jury that they don't condone their actions -- or consider them heroic. They must simply say: "The sad fact of the matter is that when you're trying to get the straight dope on how a bank robbery went down, the best way is often to make a deal with the guy driving the getaway car."

In this case, they flipped Derrick Miller, a former best friend and top aide to the mayor who pleaded guilty to public corruption charges. He was arguably the government's strongest witness among the folks who copped pleas.

Do I believe Miller was sincere when he said another reason he cooperated was to make amends? Yes.

Do I think he would have tried making amends if hadn't been caught? Hell no!

Then prosecutors need to appeal to jurors' common sense. This jury is very diverse, but they all have one thing in common: They're lower- and middle-class folks who have had to work for everything they've got -- or are working in hopes of someday having something worth having.

I think it's safe to say few of them have ever spent $10,000 on a car, let alone on suits. So it's worth asking them if they've ever given their boss cash as a gift. Then ask them if they gave or received cash as a gift, what would their expectation be? A better assignment? A raise? A contract?

They also need to remind jurors what the defense promised, but never delivered:

There was no evidence Kilpatrick did any official business in Denver when he used money from his non-profit Kilpatrick Civic Fund for a tryst with his mistress.

There was no evidence that the aggregate of all the tiny strips of metal embedded in $90,000 worth of bills would set off an airport metal detector.

There was no evidence that Kilpatrick was offered, and returned, a $5,000 honorarium at his alma mater that would explain the $5,000 contribution he claimed as a tax deduction -- a contribution the feds say really came from the non-profit Kilpatrick Civic Fund.

There was no evidence anyone received training or shelter or counseling from the state grant money that went to Ferguson and Kilpatrick's wife, Carlita. (Even though the defense says such evidence exists, and they were prevented from putting it before the jury, the fact is the jury never heard it -- giving prosecutors an edge they need to take advantage of.)

While they're talking about the defense's positions, prosecutors need to put a stake through their outrageous and offensive notions that things have worked this way for years, so it's unfair to punish these men.

For starters, I never heard of these kind of things happening during Dennis Archer's 8 years as mayor. But there's no need to go into that. A simple analogy should lay bare why someone caught committing a common crime should be punished: If your home has been broken into repeatedly, but you've only caught the last guy to ransack your jewelry box, would you let him go just because all the other cats got away?

It may be tricky, but prosecutors also need to get jurors to buy into the notion that this trial has given them an opportunity to put an end to the culture of corruption in Detroit (and Michigan in general). They need to make jurors feel that their verdict will send a message: We're sick of dirty deals and corrupt officials, and we're going to do something about it. They need to take a cue from the movie "Network," and find a way tell jurors: "I want you to get up now, I want all of you to get up out of your chairs, I want you to get up right now and go to the window, open it, and stick your head out, and yell, 'We're as mad as hell, and we're not going to take this anymore! Things are going to change!' "

Which brings us to my final point: The prosecution needs to show some emotion.

Their resumes are just as impressive as the defense team's, but they too often seem like they're treating this case as an academic exercise. They are polite to a fault, sometimes seeming bloodless.

They need to remember that the ability to stir passions, to connect with the masses, is why the quarterback almost always beats the president of the chess club in high school elections.

If prosecutors truly believe that Kilpatrick, his father and his best bud pillaged the impoverished city they pretended to champion, they need to work some of that outrage into their final performance for the jury.

If not, they run the risk that jurors who invested 5 months of their lives in these matters may feel like the feds -- who invested nearly 10 YEARS -- don't care.

And if they sense that the feds don't care, there's a chance they won't, either.

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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