Lawyers on both sides of the Alabama bingo corruption case have the weekend to prepare to square off again in federal court. When the first trial ended in August, jurors returned 91 not guilty verdicts and acquitted two defendants. The jurors were hung on the 33 remaining counts. Those are to be decided in a trial before a new set of jurors lawyers will start selecting Monday in the court of U.S. District Judge Myron Thompson.
VictoryLand owner Milton McGregor, Slocomb state Senator Harri Anne Smith, former state Senators Jim Preuitt of Talladega and Larry Means of Attalla, lobbyist Tom Coker, Country Crossing spokesman Jay Walker and former legislative analyst Ray Crosby are all again to be tried together in the vote buying case.
The government’s original indictment says political contributions were used to bribe politicians to vote for a bill to authorize a statewide vote that could legalize electronic bingo in Alabama.
Attorneys on both sides kept Judge Thompson busy since the jury verdicts.
Just days after the trial ended in August, prosecutors asked the judge to break the case into three trials. The judge refused to let the prosecution flip-flop on earlier arguments. Thompson’s response said, “I think the real issue is the acquittal, it’s not the process.” He warned his court will not to be used to favor to one side or the other.
Before the first trial, prosecutors argued trying all the defendants together simplified the process for jurors and would make the case less expensive for the government to prosecute. After failing to get a single conviction, government attorneys said three trials would simplify the case for the jurors.
“The real motive behind the severance request appears to be that the government believes convictions are more likely in three separate trials,” Thompson wrote in his order denying the motion.
Thompson also denied motions for acquittal brought by defense attorneys.
The judge said he saw enough evidence to retry the case, but in his October post trial report Thompson took aim at parts of the prosecution’s case.
Thompson wrote state Senator Scott Beason and Houston County Judge Benjamin Lewis’ statements presented at trial demonstrated a “deep seated racial animus and a desire to suppress black votes by manipulating what issues appeared on the 2010 ballot.“
That may be one reason prosecutors appear to have dumped Beason and Lewis from the prosecution witness list. Both wore wires for the FBI during the investigation and Beason testified he even took the initiative to start recording conversations on his own.
Beason was hammered on the stand about his comments to fellow GOP officials referring to Greenetrack casino customers in Eutaw as “aborigines.” He and fellow Republicans were caught in recorded conversations saying if the electronic bingo bill was brought to a vote, blacks would be driven in “HUD financed busses” to the polls. Beason issued a public apology last year before announcing he was going to make a run for the U.S. Congressional seat currently filled by Gardendale Republican Spencer Bachus.
The defense could still call them to the stand.
Another lawmaker who wore a wire for the FBI, Wetumpka Republican state Representative Barry Mask, says prosecutors have him to be on standby to testify.
Another high profile witness told by a judge to be ready to take the stand is former Governor Bob Riley. He sent his attorneys to court last fall to try and fight a subpoena to get him into the courtroom.
Riley said he was trying to avoid “setting a precedent.” He told a group in North Alabama, “It’s about whether or not you can call the governor when the governor has no knowledge of anything and put him on trial.”
U.S. District Magistrate Judge Wallace Capel, Jr. called those efforts to sidestep the subpoena were premature. First you have to hear the questions asked before deciding the testimony is improper. Riley will have to take the witness stand in order for those questions to be asked and the proper objections made.
McGregor’s attorney Joe Espy, said he had a list of potential topics he might explore with Riley.
Another potential star witness is former Country Crossing lobbyist Jarrod Massey. He spent days being grilled by both sides last summer. Before the trial began he pleaded guilty and flipped on his former boss, Ronnie Gilley.
Gilley also pleaded guilty and is also expected to be a witness in the re-trial.
Massey apologized to a defense lawyer for making wisecracks on from the stand in mid-July. After breaking down while telling the prosecutor why he asked to be sent to jail early, an emboldened Massey told McGregor’s attorney Bobby Segall, “I have a dislike for you and I was getting a little fun out of aggravating you.”
Massey asked the judge to put him in jail to begin serving his sentence. But Thompson released Massey in August after the former lobbyist said jail proved to be tougher than he expected. Massey’s lawyer says his client was “terrified to talk to anyone on the phone, including his family. His family’s financial condition continues to deteriorate and he would like to find employment to help support them.”
“A defendant should not be able to come and go as he pleases,” prosecutor Justin Shur told the court during Massey’s hearing about his release.
Shur is another last minute change to the case. Just a week ago it was announced he jumped ship from the Justice Department Public Integrity section and joined a private law firm. He was the second lead prosecutor to leave the case.
Defense attorneys expect Justice Department attorney Kendall Day to take the lead role. The two Montgomery-based prosecutors that shepherded the initial investigation were to play near non-existent roles in the re-trial. Assistant U.S. Attorneys Steve Feaga and Louis Franklin were labeled in October as “conditional representation” for the government.
Former U.S. Attorney Doug Jones described the loss of Franklin and Feaga as critical. Jones says the lawyers from the Public Integrity Section have been under fire from the beginning in the case. It is yet to be seen if the Washington based prosecution team will now bring in the local prosecutors back onto the team full time.
The trial last summer took 10 weeks to reach a verdict. There’s no indication if the next trial will take that long or longer.
The defense attorneys only called one witness before resting in the first trial. This time around things are expected to be much different.