Although he and I had been on the same stage at programs for the American Association for Justice, I’d never met Geoffrey Fieger. Tall, long-haired, dynamic, often outspoken, even at times outrageous, he was one of the country’s great lawyers and had an enviable record of winning for the people. Now he was in trouble and asking for my help. He’d been charged with violating election law by funneling money to the tune of $127,000 to John Edwards’s 2004 presidential campaign. According to the indictment, Fieger had reimbursed his employees for their contributions to Edwards. This was a common practice across the land, and when the issue came up it was never dealt with criminally. At most, fines were imposed. Imaging thought the case was surely some kind of political vendetta, and I agreed. But I don’t like political cases, because I don’t like most politicians. Usually they represented only themselves. And it seemed to me that if Fieger had done what he was accused of, he had, in fact, broken the law. “I looked at the statute,” I said to Imaging. “It prohibits giving money to a candidate in the name of another—against using straw men, like Fieger’s employees.”
She was unconvinced. “All your cases don’t have to have blood and gore. Maybe you should take a case like this to show the people what’s really going on in this country’s political wars.” The people only know what the politicians tell them. “Isn’t there a difference between using a fictional name to make a contribution, and reimbursing someone who uses his own name to make the contribution and who simply gets reimbursed?” I’d always thought Imaging would have been a great lawyer.
I’d heard how George W. Bush’s Republican “Pioneers,” his largest fund-raisers, routinely solicited bundles of contributions from employees of banks, brokerage firms, and corporations. Some of these employees later received bonuses that more than made up for their contributions. There was never any suggestion that anything illegal was taking place when Bush did it. Still, I didn’t like political cases.
Imaging kept at me. “Fieger is one of us. He’s a people’s lawyer. And the country needs good lawyers to fight for the people. If he gets anyone but you to defend him he’s likely a goner—he loses everything, and his kids and his wife will be out on the street. They’ll keep him in prison for the next twenty years just to prove to lawyers like you that their fight for citizens’ rights is over. You have to defend him.”
Fieger had seemed unbowed on the phone. “My crime wasn’t the bonuses given to our employees. My crime was butting heads with George W. Bush.” I liked the part about butting heads with Bush. And it was true that in Michigan from the governor on down, the state was controlled by a political party that Fieger characterized as “the new brand of Republicans—political reactionaries, throwbacks to the witch-hunting days of Salem.” I listened while Fieger made his case. He said, “I threw myself into a political holocaust during the nearly ten years I represented Dr. Jack Kevorkian.” Kevorkian—Dr. Death, as he’d become known—was the unremitting champion providing assisted death for fellow human beings who were in terminal, incurable suffering and were begging to die. Fieger had successfully defended Kevorkian in half a dozen murder cases that resulted in the big political guns being turned on Kevorkian’s lawyer.
“I took on their Republican governor, [John] Engler, who was Catholic. I took on their legislature that was Republican. I took on their Supreme Court of Michigan that was both Catholic and Republican. I took on their Oakland County prosecutor, Richard Thompson, who was Republican. I took on the police. Looking back, I must have been out of my mind to think I could survive.” Was Fieger courageous or just unwise? The line between is narrow. He said, “The words of my former law partner Michael Alan Schwartz still ring in my ears: ‘Never be a victim.’ I was determined not to be a victim.”
Fieger told me that one day while he was driving home listening to a radio talk show, Michigan governor John Engler was on, and a listener called in and asked how they could stop Dr. Kevorkian—the said Dr. Death. Engler’s answer came without hesitation: “Disbar Fieger, that’s about the only way.” Fieger said, “Soon after that, grievances were filed against me by the boatload, and they all bore the fingerprints of Engler and the radical Republican religious right.”
Describing his attitude in those days, he alluded to Arthur Miller’s The Crucible, in which an eighty-three-year-old man is put to death as a witch. The method of his execution is slowly crushing him under a mounting load of boulders. “The old man’s last, defiant words were ‘More weight!’ I was young then,” Fieger said. “And I was rebellious. And I could take more weight than those bastards ever imagined. I was at war with everyone, including the Attorney Grievance Commission.”
As if he hadn’t already poked the hornet’s nest enough, in 1998, Fieger declared his candidacy for the Democratic nomination for governor, and to everyone’s surprise but his own he beat the preordained candidate of the Democratic power brokers. The Democratic power brokers wanted no part of this controversial lawyer and promptly walked away from Fieger, leaving him to battle the incumbent Governor Engler on his own. Fieger launched a frontal attack on Engler, who he believed was unfairly claiming personal credit for the national prosperity created by Bill Clinton. That war would earn him the further enmity of Michigan’s powerful Republicans.
Fieger lampooned Engler in his campaign ads. He portrayed the man as a corpulent political animal and a hypocrite who claimed to be antigovernment but who had only held government jobs himself. Fieger said Engler was gifted with the vindictiveness of Richard Nixon. He kept an enemies list. And Jack Kevorkian and Geoffrey Fieger were at its top. Fieger lost.
In the 2000 presidential primary, Governor Engler volunteered to head the George W. Bush campaign in Michigan against the then-maverick senator from Arizona, John McCain, who was posing a threat to the anointed Bush as the Republican presidential nominee. Engler publicly guaranteed he’d deliver Michigan to Bush. Fieger said, “That promise by Engler was like dropping chum into a tank of sharks. I took the bait.” Fieger ran a series of radio commercials taunting Bush and tying him to Engler. In a parody of the then-hit movie Dumb and Dumber, he created and narrated ads entitled “Dumb, Dumber, and Dumbest,” referring to Bush, Spencer Abraham (the Michigan Republican senator running for reelection, who later lost), and Engler. His ads gained the attention of the national press, and NPR did a half-hour special on how Fieger, a Democrat, was sticking his nose into the Michigan Republican presidential primary. Fieger even urged Democrats to vote in the Republican primary for McCain, and when McCain won big in Michigan, Bush and his hatchet man, Karl Rove, were furious. And Engler was humiliated.
Predictably things got dirty. How dirty? Rove even began suggesting that McCain had fathered a black child, when, in fact, McCain and his wife had adopted a dark child from Bangladesh who had been given to them by Mother Teresa. In Bush’s Michigan concession speech he railed against Fieger, stating at least three times that good Republicans couldn’t let “that Kevorkian lawyer” mess in their politics. “Now I had some new and even more powerful enemies,” Fieger said. And when Bush was reelected in 2004, he chose as attorney general Alberto Gonzales, whom Fieger had previously dismissed as an “intellectual peewee.”
Fieger’s prosecution began with a complaint by a disgruntled former employee named Eric Humphrey who appeared in the Detroit FBI office and claimed that Fieger had reimbursed employees for political donations to presidential candidate John Edwards. According to Fieger, within hours Humphrey’s story was run up the political flagpole to the highest levels in Washington, D.C. And within a few days, on May 18, 2005, and unknown to Fieger, the feds called a grand jury to investigate him.
This brand of secret investigation can go on for months, even years. First, the FBI secretly serves a warrant on your bank, and up pop all of your personal bank records. You thought your bank would protect you—at least give you notice. But no. The FBI gained access not only to Fieger’s bank records and canceled checks but also to those of every employee, friend, or family member who’d given to Edwards and who had later been reimbursed by Fieger.
The grand jury had already been in secret session for about six months investigating Fieger when, on November 30, 2005, roughly eighty FBI agents were flown in from all over the country for a coordinated raid on Fieger’s office and the homes of his employees. One agent even flew in from Iraq. The sheer size of this operation was unprecedented. This is more bodies than the government threw against Osama bin Laden at Tora Bora. The cost was astronomical.
At seven o’clock sharp on the evening of November 30, this army of government agents attacked Fieger and his employees. Some agents came stomping into his law office, where employees were still at work, and pairs of FBI agents pounded on the doors of other scared employees, some of whom were home alone. It was dinnertime for most. Some had children at home, and parents and children alike were in shock. Surprise and intimidation are the agents’ stock-in-trade, and as they marched into citizens’ homes they inspired utter, unremitting fear.
“Why are cops at my door?” the Fieger employee wondered. “This must be a mistake.” But the message would soon be clear from the G-men: “Listen, chump, you’re as guilty as Fieger. You got reimbursed, didn’t you? This was Fieger’s money to Edwards, not yours, right? Admit it. Do not lie to the FBI! That’s a federal crime.” They were told that unless they cooperated they’d be accused of joining a conspiracy to violate federal law, and the FBI expected the said “subjects” to flip and become witnesses for the government against Fieger to save themselves—standard government procedure in this land of the free and the home of the brave.
On August 24, 2007, almost two years after the FBI’s original raid, the foreman of the grand jury signed an indictment against Fieger. The indictment was drafted under the direction of an assistant U.S. attorney by the name of Lynn Helland. Fieger would face ten criminal counts along with “obstruction of justice,” the charge that’s almost always thrown in when the government wants to make sure it hits the target with something. The thirty-page indictment charged conspiracies to violate federal election campaign laws, each of which carried a maximum of five years in prison and a quarter-million-dollar fine. “Obstruction of justice” carried another ten years and another quarter-million-dollar fine. If you ever got out of that hole you’d be old, broke, and broken. In spite of my initial resistance, the facts of the case and Fieger himself grabbed me. Dirty politics is like a deadly virus. It keeps changing forms. It can’t be eradicated. But individuals can be saved. I told him I’d take his case.
No trial date had yet been set, but the media circus began immediately, and Fieger was cast as “that Kevorkian lawyer.” Every photo caught him with his mouth wide open—a raging big mouth. When I took on the defense, the media provided detailed accounts of some of my controversial cases and noted that “the famed lawyer” had never lost a criminal case, implying, of course, that the guilty Fieger had brought in a hired gun, namely me. The government of the United States of America was being portrayed by the media as the underdog, like a crippled Boy Scout out there just trying to earn his merit badges.
The Detroit Free Press published a readers’ comments section. Two came forth with these dandies: “Fieger’s arrogance finally caught up with him. Using low paid employees as straw donors? That’s just stupid.”
The second commenter reflected, “OK, this is just smarmy. I always thought Fieger was just this side of the law, but I think he crossed the big old line this time that is going to bite him in the butt.”
In an interview with the Detroit Free Press Fieger said, “I picked Spence because he’s the greatest trial lawyer who ever lived, except Darrow. [Why did he ruin the fantasy with that exception?] I couldn’t pass up the honor of being represented by him.” The truth: I was seventy-eight years old, and I wanted peace, and I needed my afternoon nap, and I felt about as able to take on the U.S. government as to fight Muhammad Ali in his prime. A smidgen of good sense would have probably kept me from taking the case in the first place.
The case would be tried in Detroit, but it would be months before the trial date was set. In the meantime, we argued that the case should be dismissed. We had a library full of decisive motions against the case we wanted to file. And in the meantime, what about the others who had endured this two-year living nightmare—not only Geoffrey, but his wife, Keenie, and all of his employees and friends who’d contributed to Edwards and had been reimbursed by Geoffrey? What about his mother? He even reimbursed his mother. I was often to argue, “I suppose Mr. Fieger, a brilliant lawyer, understood that when his mother gave money, and he reimbursed her, that he knowingly and intentionally transformed her into a criminal, a member of a conspiracy to violate federal law?”
In one pretrial argument I told Federal District Judge Paul D. Borman that this two-year investigation could have been completed in two weeks. But week after week the prosecutors often subpoenaed only one Fieger employee to the grand jury. Who would be called next? Such is one of Power’s favorite tortures. Even Geoffrey’s employees couldn’t talk with him lest the feds would claim they were involved in a conspiracy to obstruct justice. Employees were afraid to talk to one another for fear they’d be indicted along with Geoffrey.
These were folks who needed their jobs, and jobs in the law business are hard to come by. They had families to support. And the feds were stretching them on a rack of conflict. They could probably earn freedom from any threatened prosecution if they turned on Fieger and helped the feds convict him, but they were loyal employees, and they’d never intended to commit a crime. Several of his employees hired lawyers they couldn’t afford to pay. Geoffrey offered to pay their lawyers, but even that might be used by the feds against him as evidence supporting a charge of a conspiracy.
After a couple of Fieger’s lawyers stood up to the feds, the FBI began its usual intimidation. The feds threatened to prosecute the children of one of the lawyers who worked for Geoffrey. The kids had given to Edwards and had been reimbursed by their father. That lawyer told the feds, “Bring it on!” Surprisingly, the feds backed off.
Geoffrey’s fees, of course, were contingent on his winning his client’s cases. If he didn’t win he couldn’t pay his employees and keep his law office afloat. No doubt the feds believed Fieger, awaiting trial, would fold under the pressure and go broke. Who’d hire a lawyer who’d been indicted by a grand jury for violations of federal crimes? Hire him today—he’d probably be in the pen tomorrow.
I learned to admire Geoffrey Fieger even more as I saw him fight on without the first willingness to give an inch. “More weight” seemed to be his answer. How his wife, Keenie, was able to survive with her young family was also inspiring. While her husband continued to fight and win his cases, she continued to be a quiet, loving mother. What must a woman do whose nest filled with children is in serious jeopardy, and whose husband is being attacked from every side by the prosecutors and the media? Her husband needed help. But who was there to help her? I saw a calm, powerful woman with a quiet smile. I saw kids living a normal life. I saw Keenie absorb her husband’s frustration and anger and not take it on. It made me proud to be their lawyer.
In the meantime the Bush gang, with Rove jerking the reins on Attorney General Gonzales, was using its power to play its usual politics across the land. With a vindictive fire, the likes of which I’d never seen, this bunch expelled eight U.S. attorneys who refused to buckle under their demands to bring certain political prosecutions. “Do what we say or get out” was their message. Attorney General Gonzales had been absorbing the heat from the national press for his abuse of the system and was about to resign. He stayed on just long enough for the grand jury to return an indictment against Fieger, after which, the next day, Gonzales slipped back into the fog of anonymity, from which he has never reappeared.
I, too, needed help. I called on my old friend David Nevin, whom we remember from the Weaver case. We knew how to work together. He made quiet, kind space for my sometimes troublesome ego and filled in where I got frustrated with the technical stuff of the law. Besides, he was a great trial lawyer in his own right, with a genius for organizing and telling an effective story.
My impression was that we could have done worse than Judge Borman. He was a man who offered a pleasant demeanor accompanied by a ready smile, and he was one of those rare judges who had been a criminal defense attorney. Our first motion was to have the case dismissed because it was clearly a “selective and vindictive prosecution.” What do those words mean in the law?
Suppose, for example, there are a hundred citizens out there who from time to time park in a certain spot marked BUS STOP, and they’ve been doing so for years. Then one day Billy Jones insults a prosecutor at the town picnic—called him “a sold-out mother-maker,” or something. When Billy is subsequently charged by the prosecutor for parking in that same spot, it’s clear that it’s payback. The law says, “No. No. That is a selective and vindictive prosecution.” We began our own prosecution—one against the feds for their “selective and vindictive prosecution.” Indeed, it had become common practice in politics for interested parties with money to reimburse those without funds for their campaign contributions.
We had support for our claim from unlikely political allies. Jack Beam, a former Republican assistant U.S. attorney appointed by President Gerald Ford, commented on the Fieger case: “This kind of politicization is a shame. I’m embarrassed that this is my old Justice Department. It is reminiscent, and I don’t think I exaggerate, of Nazi Germany.” And Michigan’s Republican Party chairman, Saul Anuzis, inadvertently admitted to the underlying politics. He expressed hope that Fieger’s indictment would “give pause to members of the trial bar about the nature of their apparently too cozy of a relationship with liberal Democrat candidates.” In plain words he was saying, “If you trial lawyers are hanging out with those liberal Democrats, your goose will get cooked.”
In our pretrial brief we argued that the Justice Department had been “hijacked” by Republican political operatives and “turned into a weapon to silence political dissidents like Mr. Fieger and others threatening the Republican stronghold in this country.” We cited a recent study by two academicians, Donald Shields and John Cragan, who examined the number of public corruption investigations and prosecutions brought by the Bush Justice Department under its Public Integrity Section chief. Shields and Cragan concluded that under Noel Hillman’s leadership between January 2001 and December 2006, U.S. attorneys nationwide investigated seven times as many Democratic officials as they did Republican officials, “a number that exceeds even the racial profiling of African Americans in traffic stops.” If this wasn’t selective prosecution, I don’t know what was. By the time of our case, Hillman had been rewarded for his work with a federal judgeship in New Jersey. We also noted the disproportionate resources that had been dedicated to Fieger’s case. Ninety-nine percent of campaign finance disputes had been resolved civilly by the Federal Election Commission. On what grounds had the Justice Department selected Mr. Fieger and his firm as the target of the largest campaign finance investigation in the history of America?
In one of our pretrial motions we pointed to the fact that the U.S. attorney’s Manual for Election Crimes held that campaign finance violations “are either not crimes or do not warrant criminal prosecution” and proposed that the vast majority of statutory violations should be “handled non-criminally by the Federal Election Commission under the statute’s civil enforcement provision.” In other words, don’t use the election laws to put people in jail. If there are violations, treat them with fines. We listed twenty-one cases with facts similar to Fieger’s that had been resolved without a criminal prosecution.
Judge Borman held us all at bay while he asked Assistant U.S. Attorney Lynn Helland why it had taken so many federal agents to conduct their investigation. Smiling, the judge said, “I’m just trying to figure out how it went down.” He said he couldn’t recall that many agents involved in any other raid during his thirteen years on the federal bench. Still smiling, and to our complete bewilderment, he ruled against us on our motion to dismiss the indictment. We hadn’t established sufficient cause to dismiss this sham? Perhaps we shouldn’t have been bewildered. Judges are human, and they have an incentive to pass the buck to juries.
* * *
Now we faced the upcoming trial and a jury panel composed of citizens who’d been barraged with the feds’ propaganda against Fieger. The top dogs in the Department of Justice in Washington, D.C., must have believed that Assistant U.S. Attorney Helland needed some help. If Helland needed help, the government had hundreds of experienced, highly skilled prosecutors from whom to select his co-counsel. So why would that office tap a nice, innocent-appearing young man who ought to provide little competition for any run-of-the-mill criminal defense attorney? The young trial lawyer’s name was Kendall Day. But behind Day’s youthful innocence lurked an experienced prosecutor who had been involved in some major criminal cases, including the prosecution of the notorious Washington lobbyist Jack Abramoff. I thought his choice was a smart tactical move by the powers that be in Washington, D.C., who saw Day as a rising star. Juries liked him. Besides, throwing an apparent kid in to fight Spence would shore up the illusion that the government was, indeed, the underdog.
Day didn’t disappoint. On his first day before the trial, Day, in open court, complained to Judge Borman that Fieger was airing TV ads attacking the government’s investigation. He asked Borman to put a gag order on Geoffrey to stop him from taking his case public. Our David Nevin replied: The government had been using the media for months telling the potential jury pool what a vile, conniving criminal Geoffrey was, and in turn Geoffrey shouldn’t be allowed to speak back? Nevin argued that the Department of Justice’s own handbook said prosecutors should consult with the department’s Public Integrity Section at headquarters before opening a criminal campaign in a finance case, to which Helland confessed, “I screwed up.” But the mistake was inconsequential, Helland argued, because the Public Integrity Section in Washington, D.C., itself had independently opened an investigation of Fieger at almost the same time.
We called Judge Borman’s attention to the Third Reich tactics of Helland himself, who actually had asked grand jury witnesses whom they had voted for in certain elections. Whom a witness voted for? “Is this a political case or not?” I asked the judge. Helland claimed such questions were relevant because “they could identify inconsistencies between financial and voting support,” whatever that was supposed to mean. “Was it invasive?” Helland asked. “Yes. Was it improper? I don’t think so.” Judge Borman just kept on smiling.
Then Helland’s boss, the local U.S. attorney Stephen Murphy, and two of his assistants stepped up and asked to speak to the judge. The judge smiled back and said, “Of course.” For the first time these three lawyers were suddenly claiming they were disqualified from overseeing the Fieger case. Why? I asked. All three of these prosecutors had apparently been involved in this case for the last seven months. Why did it take them seven months to conclude that on some unspecified grounds it would now be wrong for them to try to put Fieger away? “None of this really passes the smell test,” I argued to Judge Borman. But we were being stonewalled by the prosecutors.
Then Helland advised us that he had been talking to the judge in one of those forbidden, secret ex parte conferences we’d encountered in the Singer case. The feds, because they deal in matters of national security, have the right, in rare cases, for such clandestine conferences, but this wasn’t such a case. The question seemed to come down to exactly who was running this case—the judge or the prosecutors? We would soon find out.
Harper’s Magazine took a look at what it unabashedly called “a political prosecution,” pointing out that “using the office of U.S. attorney to wage a political vendetta is a crime under sections 1505 and 1512 of the Criminal Code. In fact, it’s a far more serious crime than the allegations brought for campaign finance violations.”28
Judge Borman took more than three months to write his thirty-page opinion. He acknowledged what appeared to be the political motivations behind the case, noting that Helland, the lead prosecutor, admitted this was the first prosecution involving reimbursement of campaign contributions that he knew of in the twenty-some years he’d been working in the department. In the past, purported violations of election laws had been left to the Federal Election Commission for appropriate sanctions, if any.
Judge Borman also questioned why Murphy and his assistants had disqualified themselves after seven months. He also noted he’d been essentially stonewalled. The judge gave the prosecutors a few more days to come clean. In response, the prosecutors filed their response claiming the judge had made substantial errors in his opinion without specifying the same, and at last revealed that their recusals were because Murphy and the other two had contributed small sums of money to Stephen Markman’s campaign for the Michigan Supreme Court. It took them seven months to remember that?
The judge backed off. He overruled our pretrial motions, including our claim that the feds’ prosecution of Fieger had been “selective and vindictive.” Why did the judge overrule our motions? I make no claim to know.
The pretrial publicity fight in the media accelerated. Yes, both sides wanted to influence any citizen who might later be called as a juror in the case. Geoffrey, who could never be silenced, not with a gun at his head, claimed in an ad that the George W. Bush administration had declared war on lawyers and compared that to the Nazi campaign to rid Germany of Jews, Gypsies, Catholics, unionists, and lawyers. The ad featured unpretty photos of Bush, Vice President Dick Cheney, and former attorney general Alberto Gonzales.
Day and Helland complained that this publicity could set potential jurors against them. They asked Judge Borman to order Fieger to pull the ad. Judge Borman, referring to Fieger’s ad, said, “This one is just totally off the wall and outright blatant given that we have a jury trial coming up.” He ordered Fieger to pull the ad. And finally he ordered our trial to begin on April 14, 2008.
We filed a motion for a change of venue because many potential jurors might hold deep animus against Geoffrey because of his defense of Kevorkian. In support we handed over a bulging scrapbook of newspaper clippings of virulent comments made in readers’ columns against Fieger, stories and photos that showed him to be someone we’d lock the front door against, and affidavits demonstrating that Geoffrey’s reputation in the community had been sullied by the media and that a fair trial in Detroit would be impossible. Our motion was promptly denied. We next contested the jury panel. It didn’t contain a proportionate share of black jurors. In addition to the fact that Geoffrey and Keenie had adopted two black children, Geoffrey was something of a folk hero to the black community for his work on behalf of African Americans. Judge Borman said no—but kept on smiling.
* * *
The trial began as scheduled, and as his first judicial act Judge Borman dealt Fieger a death blow. He ruled we couldn’t even intimate to the jurors that Geoffrey had been the victim of a political witch-hunt instigated by the Bush people. Then the judge ordered a media blackout for both sides. The prosecutors immediately used a tactic to subvert his order. They filed a forty-one-page document they styled as “a trial brief” that was brimming with hate-Fieger material, a diatribe that had been designed for the media’s eyes. The media took to the prosecutors’ “brief” like starving street waifs invited to a feast at McDonald’s. That “brief,” which was supposed to be under seal for the judge’s and our eyes only, was filed as an ordinary paper in the court documents and had been left naked for the media to read and report.
The “brief” included the names of the government’s witnesses and what they were likely to say. It claimed Fieger had been warned by one of his own lawyers, Todd Weglarz, that the practice of reimbursement was illegal. Weglarz had made a contribution to Edwards and had been reimbursed by Fieger. And it quoted Weglarz: “Should there ever be any type of investigation into those contributions, I am greatly concerned about the effect it would have on my ability to maintain a license to practice law.” According to the “brief,” Wensdy White, a consultant for Fieger’s newsletter, would testify that Fieger also called her to warn her not to talk to the FBI. Fieger was quoted as saying, “Just tell them you donated to the John Edwards campaign and that you support him.”
Quotes from the brief immediately appeared in local papers. According to Day, he had made a mistake in failing to file the brief under seal. I argued for a dismissal of the case. I told the judge, “If we filed a forty-page press release with a gag order in effect, you’d have me down there in the crossbars hotel. There’s no end to their dirty tricks.”
“Overruled,” said Judge Borman with his kindly smile.
I asked for at least an apology from the prosecution.
No, Judge Borman said. He thought his mere admonishment of the government would do. I thought their misconduct had the potential to permanently poison the case.
As is usual in federal courts, the judge questioned the jurors as to their qualifications to sit on the case. No, the judge ruled, I couldn’t ask a single question to any juror. Many federal court judges allow counsel to question jurors, since the lawyers know their case better than the judge, and the right to question jurors is nearly always allowed in most state courts.
Jury selection and the opening statement are the two most important phases of any jury trial. It’s during these times that the attorney is able to create a tribe with the jurors and to create trust and establish credibility. I have often said, “Give me a fair and honest voir dire [jury selection] and a well-delivered and truthful opening statement, and the case is over so long as I never betray the jurors’ trust.” That first opportunity is lost when, as in this case, only the judge can question jurors. Although Borman had once been a public defender, it didn’t mean he knew how to select a jury or that he’d ever been an effective trial lawyer. He asked the same questions one most often hears from judges in the federal courts.
The Detroit Free Press ran a story that would further emphasize the government’s underdog status, quoting Wayne State law professor Peter Henning, a former lawyer in the U.S. Department of Justice, who said, “Gerry Spence is one of the most celebrated lawyers in recent times. He is legendary, and it will be interesting to see how he handles himself.” The article laid out my well-known cases and noted that I’d hired David Nevin, who “played by the rules, but who also won by the rules,” implying, of course, that Spence won by the use of unspecified tricks and improprieties.
The paper published another series of op-ed letters that revealed, in part, why we’d asked for a change of venue. One reader wrote that “a lying, cheating son-of-a-b#*ch is finally getting his due.” Another wrote, “Fieger is a self-serving blowhard. He got caught with his hand in the cookie jar and I hope he gets what he deserves. Disbarment. A little jail time would be nice too. It would be cool to see Fieger and Kilpatrick [the former mayor] in the same perp walk.” The paper ran only one letter that opposed an immediate hanging: “Give Spence a chance to get a fair trial for his client. He represents what is right about good lawyers, and let’s see if he can teach his client and D-town about the abuse of power that seems so pervasive in this case on both sides.”
After the judge had finished his jury selection, both sides had six peremptory challenges, meaning that each side could dismiss a total of six prospective jurors from the case without stating a reason. I’m not a big fan of jury consultants, but Fieger wanted me to use Lou Genovic, who’d often helped him in civil cases. He and Genovic chose the jurors we’d excuse. The case would be heard by sixteen citizens—the standard twelve plus four alternates—eleven male and five female jurors. Two were African American.
Next, Judge Borman delivered a list of persons we were forbidden to mention by name to the jury. “Do not mention George W. Bush, Governor Engler, Karl Rove, or Attorney General Gonzales.” Moreover, we were ordered not to argue to the jury that the law does not prohibit reimbursement. The judge gave us one defense, and only one: I could try to persuade the jury that Geoffrey Fieger didn’t know he’d violated the law when he made his reimbursements. I could try to convince a jury of intelligent citizens that a great lawyer, one of the brightest persons I have ever known, didn’t understand that reimbursing one’s employees was a crime when, to the contrary, Judge Borman would be telling the jurors that reimbursement was a crime? I saw the marshals slapping the cuffs and chains on Geoffrey Fieger and hauling him off to some concrete hole.
* * *
In his opening statement Helland, in a floor-flat monotone, said the case was about deception and illegal fund-raising. Helland was as jovial and appealing as a reawakened mummy. He didn’t need to be charismatic and a Mr. Nice Guy. He was doing the public a service, prosecuting a known crafty criminal, this Fieger individual, who thought he could violate the law and get away with it.
When it came my turn to make my opening statement to the jury, I asked Fieger’s wife, Keenie, to stand up with the Fieger children. She held their new baby in her arms. I introduced them to the jurors. With a sneer Helland asked if they were going to give testimony. I said I wanted the jury to see the real people behind our case. “This is no place for babies and mammas to be,” I said. “I’m going to ask that they be excused at this time.”
Then I told the jury that Mr. Day, that nice young man, was under the direction of a Mr. Welch from Washington, D.C. And I motioned to Assistant District Attorney Lynn Helland, and I told the jury that he, too, was under the direction of Mr. Welch of Washington, D.C. I thought that might tell the jury who the real parties were on both sides of the case: Mom and the kids on our side; Mr. Welch, a head honcho in the Department of Justice from Washington, D.C., on theirs. The judge stepped in. No, Helland was not under the direction of Washington, D.C. But the judge was wrong. Helland took his orders from Welch in Washington, D.C., the same as Day. But who was the jury to believe, the judge or that crafty, slick lawyer from Wyoming?
I told the jury that they’d seen Geoffrey on television, and some might not like him, but he fought for the little guy. “He fights big government and corporations that stomp ordinary people under.” Then I held up an enlargement of what became known as section 441f of the law.
“Let’s read this together,” I invited the jury as I held up the cardboard in front of the jurors: It read: “No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution.”
I said, “The contributions in this case were made in the name of the persons who gave the money, and they were reimbursed by Mr. Fieger.” I told the jury the people’s contributions were totally voluntary. Only half in his firm contributed. He decided to reimburse those who wanted to give but couldn’t afford to. In the end he treated everyone alike and reimbursed even those who could afford it. It was that simple.
I took my argument to the edge by contradicting the judge’s position: There was nothing on the books, I told the jury, that said that reimbursement was illegal. “We don’t have secret laws in this country,” I said. “The word ‘reimbursement’ doesn’t appear anywhere in these statutes.”
I told the jury that Geoffrey had reviewed the law, and that in forty years there had never been a case that said reimbursement was a crime. Nor was there a U.S. Supreme Court case that said so. I said, “The prosecutors see Mr. Fieger with only one eye, and that’s an evil eye, and it’s their eye.”
I pointed out that if reimbursement were a crime, then the government could make criminals of all of us. A husband reimburses his wife. A parent reimburses the child. Mr. Fieger reimbursed his mother. Were all of these people—wife, child, and mother—part of some evil conspiracy? And if the law is as clear and clean as it’s written there, and as Mr. Fieger saw it, I asked them, who would expect that you would be dragged into a court of law and charged with ten counts as a criminal? There are no secret crimes in this country, no secret crimes. I likened it to driving up to an intersection where there was a blank sign. Then a cop pulls you over and claims you violated the law. Should you have known what was written on that blank sign?
“Every contribution here was made in the name of the person who made it, not in the name of another as the law prohibits. Their contributions were made by their personal checks, not some phony check, and those checks were delivered to the Edwards campaign.
“So Mr. Fieger didn’t believe it was a crime, and sixteen lawyers in his firm gave, intelligent men and women, and none of them saw reimbursement as a crime. If you read the law as we have read it together, you can see that there is no crime stated on the face of the law. So there can’t be a crime.”
I waited for that truth to take hold.
Finally I said, “On November 30, 2005, came shock and awe. At least eighty FBI and IRS people descended upon Mr. Fieger at night. You would have thought he was Osama bin Laden at Tora Bora, or that they were trying to get the head of the Mafia family. It was seven o’clock at night. Some of the lawyers were working late. Can you imagine how it would be—innocent people sitting there working at night and in storms the FBI? The people were frightened. The FBI went into Mr. Fieger’s private files and took away eighty-seven thousand—that’s how bad they wanted to get him—eighty-seven thousand documents from his office, most of which had nothing to do with this case whatsoever.
“At the same time, other agents of the FBI, along with the IRS, went to the homes of those who had given to Edwards and knocked on their doors. Can you understand how that would be—at night, and you’re a single mother at home with your baby, and here come two government men knocking on your door wanting to ask you questions. These agents had no right there except to serve the person with a subpoena to appear before the grand jury. But the people didn’t know that. The people opened their doors and the agents burst in. And they began to interrogate these folks about something that had happened two years before.
“Some of the folks couldn’t remember anything. Even the lawyers, most of whom are civil, not criminal, lawyers, were frightened. The people were told they were felons; they were told they had violated the law. One agent asked a lone mother, ‘Is this a picture of your son?’ ‘Yes.’ ‘Well,’ the FBI agent said, ‘he needs a mother.’ What was the implication? Then he asked, ‘Did you let Mr. Fieger use your name?’
“They questioned a man named Lloyd Johnson: ‘Well, Mr. Johnson, you have two boys?’ ‘Yes.’ ‘Your boys gave money to Mr. Edwards?’ ‘Yes.’ ‘And you reimbursed them?’ ‘Yes.’ The FBI went to see the boys, and one of them had just started a job as a high school wrestling coach. The FBI came to the school where he was working with his team and they said, ‘We want to talk to you.’ The boy said, ‘Please, please. I’m in a meet. What do you want to talk to me about?’ Finally, he was able to get them to go to his little apartment later.”
At this point, Judge Borman interjected, “You have ten more minutes.”
“Thank you. I didn’t know I used so much time,” I said. “They were threatening to charge Mr. Johnson. They even went to his girlfriend, who’s now his wife.
“And who are the real conspirators here? There are eight charges here, but within those charges there are many other charges. Obstruction of justice. Mr. Rees, the head FBI man sitting right here [I pointed at him], called Mr. Fieger on the phone the night of the raid. ‘What are you doing?’ Mr. Fieger asked. Rees was babbling, excited and in charge of this huge invasion with all of those agents. Finally he asked Mr. Fieger, ‘Did you give any money?’
“Mr. Fieger said, ‘I didn’t give any money to anybody. I gave money to my employees.’
“‘Well, what about Mr. Kenney?’ Rees asked, referring to a former partner.
“‘You’ll have to talk to Mr. Kenney,’ Mr. Fieger said. Of course, Mr. Kenney had died some time before. And the FBI knew he’d died and Mr. Fieger knew he’d died. Everybody knew. But Geoffrey Fieger was thereafter charged with obstruction of justice because he told the FBI to talk to a dead man.
“I want you to know that these people [referring to Fieger and Ven Johnson, his partner who was charged with him] are not criminals, they’re good, bright men. Mr. Rees knows that, but they’re charged as common criminals, charges that will take away their freedom for long periods of time.”
Helland: “I do object to that.”
Judge Borman: “I’ll sustain the objection to that.”
I pressed on. “They [I pointed to Helland] say Geoffrey was deceptive. They showed you the books. When you take out the employee’s tax and all the rest, the employee was reimbursed a sum exactly equal to what they gave to Edwards. And he [pointing to Helland] didn’t show you the document in which all of this was revealed. The books were open. The books showed exactly what happened. There was no attempt to cover it like you might see with GM or Ford, who would have hundreds of employees give and at the end of the year they’d get covering bonuses. The accountants and the IRS found there was nothing wrong with what Mr. Fieger did from a tax standpoint. But they also had these IRS agents out there that night scaring these people.
“Well, who are the real conspirators here? Who is really out to get Mr. Fieger in any way they can get him? We don’t need the powers that be in Washington, D.C., telling us what we should do here in Michigan; not those people. [I pointed to Helland and to Rees sitting next to him.] These are not the people we answer to.
“Thank God we’ve got juries like you. And we don’t have to answer to anybody, not to anybody.
“I’m about to leave you, but I’ll be with you for the next weeks. I hope you’ll see that what was done here was done innocently and honestly. Mr. Fieger and the others may have disagreed with the powers that be in Washington, D.C. But that isn’t the test. The test is did they knowingly, willfully violate the law?
“I think you’ll find, when all of the evidence is in, that Mr. Fieger, Mr. Johnson, and none of the lawyers and none of the people who are all good citizens, who all live here, who fight for ordinary people like you, that none violated the law in any way. And I just have to say again, thank God for juries. Thank you for being here.
“We can say good-bye to the FBI.
“We can say good-bye to the powers that be in Washington, D.C.”
I sat down.
* * *
It was the first thing in the morning following my opening statement. The jury was still in the jury room. Helland stood in front of Judge Borman shouting objections to my opening statement. It violated the judge’s order about mentioning politics. He wanted the judge to tell the jury, in effect, what a bad person I was—to make it a case between the judge and Helland on one side and this misbehaving, untrustworthy Wyoming lawyer on the other, and, further, to tell the jury to disregard what I said in my opening about the powers that be in Washington, D.C., and further still to tell the jury that what Geoffrey did was a crime.
Judge Borman responded, leaning down over the bench and shaking his finger at me. He admonished me thoroughly for having disregarded his earlier rulings. I wasn’t even to whisper to the jury about Washington politics. I told His Honor that I intended only to convey to the jury what Geoffrey Fieger believed to be the law. His beliefs were germane to whether he willfully and knowingly violated the law, right? Besides, Helland hadn’t objected then and waited until now, the morning after, to complain. You learn in the first year of law school that if you don’t object at the time of the supposed offense you can’t come whimpering to the judge afterward.
The judge ordered the jurors in. After they were seated, the first thing the judge did was to smile over to the jurors and say, “Mr. Helland works for the U.S. Attorney’s Office in Detroit, not the Justice Department in Washington.” That made me a judicially decreed liar, right? But who, in fact, was giving the ultimate orders in the case? Was his name Karl Rove?
Now Steve Fishman, the lawyer for Fieger’s partner, Ven Johnson, followed with his opening statement and made substantially the same arguments to the jury. “It makes no sense to think Johnson knowingly broke the law,” he said. “Among those Johnson reimbursed was his own daughter. Why would a successful lawyer, with nothing to gain, intentionally put his own daughter in legal jeopardy?” Fishman also claimed his client had no responsibility anyway because of a phenomenon that became known as “the Johnson pencil defense”: Although Ven Johnson was a partner, Fieger ran the firm, and Johnson “couldn’t buy a pencil without Fieger’s approval.”
* * *
The time had come for the prosecution to make its case. A talented young clerk, a lawyer-to-be whom I liked a lot, a kid named Jim Harrington, was called by Kendall Day as the prosecution’s first witness. Jim admitted that his $2000 check would have bounced but for his reimbursement by Fieger. I cross-examined the young man. Had he been forced to give the money? No. He said he had looked into John Edwards and found he was a trial lawyer. “I thought this was a great guy,” Harrington said of Edwards. “I was excited.” He told the jury he’d been asked to contribute by Ven Johnson, and he knew that Johnson wouldn’t “put him in harm’s way” if Johnson had believed reimbursement was illegal. He was stunned when the FBI came to his door. We were off to a good start.
But Kendall Day seemed undaunted. He called a former police officer named Paul Broschay, by then a lawyer in Fieger’s firm, who admitted that not only did he give to Edwards in his own name, he had his wife and two daughters give in their names. Fieger had reimbursed them all, and all had been pursued by the FBI. Going after Broschay himself hadn’t been enough. The feds sent its agents after his daughters. Yes, that’s one way the FBI gets a witness to flip to the government’s side of the case—go after his kids. Broschay said that when one of his daughters called home to Daddy, hysterical, he’d had enough. He told the FBI to get out of his house.
Tania Rock, Fieger’s former personal secretary, was a potentially dangerous witness. I’d tried to interview her before the trial, but she wouldn’t talk to me (as she’d no doubt been instructed by the prosecutors). This case could blow up in our faces; Lord knew what she might say. I’d made a lot of Geoffrey’s home life and displayed his wife and children in court to the jurors. What if Tania now admitted to some clandestine affair? After such a betrayal of both Keenie and the kids and the jurors as well, the jurors would stampede to the jury room to convict Geoffrey.
The prosecutors served Tania with what is known as a “Kastigar letter.” It provided her “use immunity,” which meant the government couldn’t prosecute her based on the facts she testified to. However, in terms that would make a polar bear shiver, it also required that if she didn’t cooperate with the government her immunity agreement would be no protection. Although she sought to be sophisticated and professional in her demeanor, I saw how frightened the poor woman was—there in a public courtroom testifying against her former boss.
Under leading questions from Helland, Tania told the jury that she’d warned Fieger that his reimbursements were illegal and that he’d shrugged off her advice. I demanded that the prosecutors produce the infamous Kastigar letter. I projected it up on the screen for the jury to see and asked Tania to read the letter, word for word, out loud to the jury. I was gentle with her. I said that the letter must have frightened her. Was she afraid? Yes. I liked the young woman and felt sorry for her, and I suspected the jury felt the same way. I didn’t think the jury appreciated the chief prosecutor dragging a scared woman into the courtroom to testify against her former boss, for whom she must have still retained certain feelings of loyalty.
On cross-examination I asked her in a friendly manner if Geoffrey had ever turned to her for any legal advice in other matters. No, she said, and she admitted she hadn’t wanted to testify against her boss. I’d learned from other sources that the FBI had gone so far as to ask her if she and Geoffrey had ever engaged in an extramarital affair. I asked her if the FBI had questioned her on that subject.
Helland objected—supposed affairs had nothing to do with making contributions to Edwards, he argued. Precisely, I agreed. We were demonstrating that the government was so bent on getting Geoffrey Fieger that they’d grab at anything to get him, to sully his name, to embarrass him, to put his marriage in jeopardy, anything to put more pressure on him, even to harass and embarrass this witness. I thought the jury got the point. The judge permitted her to answer. She denied ever having had any such relationship with Geoffrey and that ended her testimony.
Helland next called Eric Humphrey, the former employee who’d started the whole mess. He testified that Fieger fired him because he wouldn’t contribute to the Edwards campaign. He said he’d warned Fieger that reimbursement was against the law and even showed him a newspaper article that reported how some other lawyer had been charged by the feds with these same crimes and had been put under house arrest.
Humphrey had been warned by Fieger about dragging into work late. He’d been let go by Fieger in 2004 for other reasons. There’d been threats by Humphrey of a suit against Fieger. By the time I’d finished my cross, I thought the man seemed belligerent and defensive. Ordinarily we do not relate well to contentious people. We are less swayed by what people say than by how they say it. An unfriendly demeanor turns us off. Why had Humphrey waited two years to complain about Geoffrey to the FBI? I thought the jury might wonder as well.
Changing pace, the government then called SueEllen Sandner, one of Fieger’s paralegals, who had been reimbursed by him. Why they called the lady remains a mystery. Under my cross-examination Ms. Sandner ended up saying she was so disgusted with the way FBI Agent Jeffrey Rees treated her that she had refused to meet with the federal prosecutor in advance of her testimony if Rees were there. Rees had called her shortly after his agents raided Fieger’s law firm, and at one point the prosecutors asked her to sign a statement, but the statement didn’t include what she’d said—that “Mr. Fieger never asked me to lie or hide what I’d done.” And, as she stepped down from the witness stand she said, “I don’t think Mr. Fieger would ask me to do anything wrong.”
We learned from Geoffrey’s partner, Ven Johnson, that along the way the FBI had actually tried to use him to set Fieger up. They’d enlisted the help of a lawyer, another former employee. As planned in advance, the former employee had called Ven Johnson while the FBI was secretly recording the conversation. This lawyer told Johnson that he was concerned that Fieger’s reimbursement had been illegal. Repeatedly during the recorded conversation he tried to get Johnson to admit there was something wrong with reimbursing, and Johnson as often asked, “What’s the problem?” Finally Johnson got weary of the conversation and told him to talk to Fieger if he thought there was something wrong. That ended the intended trap.
Back again in the courtroom, Jeffrey Rees finally took the stand for the prosecution. He testified as to the planning and execution of their raid on Fieger’s office and his employees, and about the law and the reason for the law—to keep big money out of politics. He came off professional, like the stereotyped FBI agent who was interested only in the facts. His testimony was truncated and curt. I had Rees on cross-examination for parts of four days.
I asked him why, on the night of the raid, he hadn’t recorded his conversation with Fieger. Rees said it was against FBI policy to do so. I made the point that because the FBI doesn’t record its conversations, its agents are free to edit their memories and their reports, without fear of contradiction.
I had Rees tell the jury about the mass preraid meeting of the FBI and IRS agents when Rees and the FBI actually gave a PowerPoint presentation preparing the agents for their invasion of Fieger and his employees. There had been a room full of FBI and IRS agents being taught together like schoolchildren in a government class how to conduct the raid, what questions to ask, and how to behave themselves. I was shocked. I asked Rees, “Have you ever been at a meeting with eighty to a hundred agents discussing a campaign contribution case?”
“Not before this one, no,” Rees admitted. After Rees’s testimony the prosecution rested its case.
We wanted Judge Borman to dismiss the case. The feds had failed to prove that any crime had been committed by anyone. I wanted David Nevin, our legal guru and ace trial lawyer, to argue our motion. His presentation to Judge Borman asking for dismissal was solid and powerful. He pointed out that the prosecutors had called only eleven of the sixty-four witnesses the government had listed. Not a single witness claimed that Fieger or Johnson believed he was committing a crime. If they knew they were breaking the law, Nevin argued, would Fieger have asked his late mother to contribute, and would Johnson have asked his daughter to give? Under the government’s theory of the law, that would have converted both mother and daughter into criminals. But, as usual and as expected, the judge denied the motion, smiled at us, and ordered us to continue.
I wanted to rest our case without calling a witness. I argued that the jury was with us, that Geoffrey’s testifying was dangerous. I pressed him with the obvious: He would be cross-examined by Helland, and he’d get angry and fight back and come off testy and belligerent, and we’d lose the goodwill we’d earned with the jury. I argued he should not testify.
But one can imagine how revved up Geoffrey was after those years of torture, and now these weeks in trial—the negative publicity, all the sleepless nights, and the senseless war the government had dragged him through. Geoffrey wanted to be heard, to be vindicated, to fight back. He was a warrior, and it is hard to disengage warriors from battle. He insisted on testifying.
I spent many long hours going over his testimony with him. I was not concerned about the facts of the case but about how he presented the facts. He would surely argue with Helland. Lawyers argue like ordinary folks breathe. Arguments between lawyers are often not pretty, and such a confrontation would not endear Geoffrey to the jurors.
I warned him that he had to treat Helland with kindness. But how can you be kind to someone who’s been trying to destroy you? And how does one such as Geoffrey avoid appearing arrogant, even demeaning, when confronting one who has displayed lesser talents? I was asking him to conduct himself beyond his embedded personality. In short, he had to show his vulnerable human side, failing which the jury would reject him, and the doors to the pen would swing wide open without a squeak in the hinges. Over and over I reminded him, “Every time you raise your voice in anger, or wrestle with Helland, you’re losing. And we know what losing means, don’t we?”
He took the stand. He looked ready, eager. I began by asking him why he was testifying, given the fact that he knew he didn’t have to. He gave the jurors a friendly Fieger smile. “I think it’s important that the jury hear from me about what happened in this case. I know I have a target on my back.”
I had him describe the raids on his office and against his employees and friends. He said it had been his worst nightmare. “I didn’t know what was going on. I knew I had always been a target, but I never thought they’d actually do something like this.”
He told how he’d grown up with a father who was a civil rights lawyer and a mother who was a teacher and an organizer for the teachers’ union. She’d led the first teachers’ strike in Michigan. He said his life was dedicated to fighting the powerful on behalf of underdogs. And, yes, in the process of his thirty-year career he’d gained powerful enemies.
“Would you knowingly do anything illegal?”
“I wouldn’t start at the age of fifty-five to become a criminal,” he answered, “and certainly not after the birth of my three children.” Then he said it. “No court in history had ever said that reimbursement is a crime.” Helland jumped up screaming his objection, his hands striking out at the innocent air. The judge could stop me from mentioning Bush or Cheney or Rove or the rest of the Republican gang, but he couldn’t gag Fieger without opening a new door to a lot of trouble with the jury. Fieger was the defendant. The jury wanted to hear from him. His livelihood and family were at stake. Yes, his life was at stake. He had a right to be heard.
Geoffrey launched into his interpretation of the federal campaign finance law. Helland objected again in a loud, petulant voice arguing that the judge had already ruled on the issue. But even Judge Borman now saw that Geoffrey was entitled to tell the jury how he read the law. It was his interpretation. Before Geoffrey could be held criminally liable, the government had to prove that he knew his conduct was illegal.
“Does the word ‘reimbursement’ or any word like it appear in the statutes?” I asked.
“No, the word ‘reimbursement’ doesn’t appear anywhere. And no court ever ruled that reimbursement was a crime,” he said once more.
Judge Borman was glaring down at Fieger. His smile had vanished. He’d told the jury at the start of the trial that reimbursement was illegal. And here was this defendant in his court telling the jury about his view of the law to the contrary. Geoffrey might as well have donned the judge’s robe when he said, “If Congress is going to make something illegal, they have to give us notice of it. We have to be able to know that what we’re doing is wrong; otherwise we’re all living in a fun house.”
As we finished the second day of his testimony I thought he was doing fine—he had been respectful and warm and resisted the impulse to vent his anger and frustration. But what would happen when Helland began to wrestle with him? I told him that when he was cross-examined by Helland he’d be walking a tightrope across the River Styx. One misstep and he’d fall off, and that would be the end.
Helland began his cross of Geoffrey during his third day on the stand. He asked whether Fieger had written a memo setting out his legal theories on reimbursement. “I’m not in the habit of writing memos to myself,” Fieger replied. “If I’d known what you were going to do I would have—and plastered it all over the wall.” I saw a juror suppress a smile.
Helland asked Geoffrey why his employees might want to “voluntarily’’ write checks to support political candidates. That was a mistake. Fieger’s quiet, sincere response: “You mean other than just being good Americans?” Helland was struggling. I didn’t want him to struggle too much, though. Sympathies in a jury trial can flip in a hurry.
But Helland was no match for Fieger. When he asked a question, Fieger answered with little gems like this: “Your agents terrorized my staff, and to make sure that the public knew all the details, you alerted local television stations so their cameras could follow you around.” Fieger called the FBI “politically motivated thugs” and went on to comment: “If somebody robbed a bank, you couldn’t get more than three FBI agents on the case, much less the eighty or more who came down on us.” Then he pulled up George Bush’s infamous words: “It’s called shock and awe.” As Helland wrapped up, I wondered whether Geoffrey had gone too far. Did the jurors revert to some original distaste for him that might be lingering? It was too late to worry.
Fishman questioned Geoffrey on behalf of Ven Johnson. In response to his soft questions, Geoffrey described Johnson as meticulous and careful and cited those traits as reasons he hired him. Johnson wouldn’t do anything to put himself, his co-workers, or his family at risk, Fieger said. “I couldn’t get Ven Johnson to cross the street in the middle of the block if he thought it was jaywalking.”
One must occasionally let levity lighten the morbid shadows of a criminal trial. The Free Press reported, “Despite the serious nature of the criminal trial for big-name lawyer Geoffrey Fieger, there have been plenty of funny moments—many of them caused by Fieger’s famous, and mischievous, 79-year-old lawyer, Gerry Spence of Jackson, Wyo. As the jury was about to be called into the courtroom after a break in testimony today, U.S. District Judge Paul Borman asked lawyers if he should turn on the ceiling blowers to circulate air.
“‘Mr. Fieger’s already here,’ Spence retorted, prompting laughter from spectators.”
The Free Press went on to report, “Fieger, who has his own ideas about how his case should be tried, told Spence from the witness stand today that Spence hadn’t asked him questions about a particular topic.
“‘Wait!’ Judge Borman interrupted. ‘Who’s the lawyer and who’s the witness?’ Spence simply shrugged his shoulders, sparking more laughter from the gallery and jurors.” One must be careful with humor. If it pops up naturally, if it’s appropriate and not mean-spirited or cute, it can be a welcome relief in such a heavy, often dreary expedition as a criminal jury trial.
The Free Press itself was looking for something more interesting to write about than the one-sided contest that was going on between Fieger and Helland. The paper reported, “A herd of lawyers, many of them alumni of Gerry Spence’s trial lawyers’ college, piled into the federal courtroom Wednesday, starry-eyed admirers of the defense lawyer who at least one of them called ‘the greatest lawyer in history.’” I say, if a “great lawyer” was one who weary to the bone, operating on worn-out cylinders, couldn’t remember names, too often misspoke, and was never certain how the case was coming down, then, yes, I fully qualified.
I thought the judge might retain his own sentiments concerning Fieger. The last I heard there is no brain switch that turns off the judge from himself. How might any judge feel about Fieger? In the past, if Fieger felt justified, he’d been willing to take on a judge in a full frontal assault, even a high court judge. Why, I wondered, would a judge, down in his deepest folds of feelings, retain anything but animus against this man? It is hard to be a good judge. It is much easier to criticize a good judge.
On May 22, 2008, we rested our case. I’d ended up taking Geoffrey’s case because a free people require the likes of a Geoffrey Fieger to fearlessly take on Power. Many who wanted to watch the final arguments were turned away. Attorney Will Burke, who flew from North Carolina to watch my final argument, said he arrived at the federal courthouse at 4:30 A.M. to make sure he got a seat.
Now it was time for closing arguments. Kendall Day gave the government’s opening argument against us. As usual in a criminal case, the prosecution gets two shots at the jury, the defense but one. After I made my argument, Helland would have the last word with the jurors.
“This isn’t entertainment,” Day told the jury. “This isn’t Law & Order.” Day told the jurors that Fieger was a liar who believed he was above the law. “Fieger thinks he’s smarter than you,” Day said. “However, no one is above the law, especially a lawyer whose profession is to serve the law.”
The advantage of Day’s youthful appearance seemed to melt away in the heat of his disdain. “Fieger,” he cried, “showed that he knew he was illegally funneling money to Democrat John Edwards’s 2004 presidential bid. Fieger testified that he’d done extensive research into campaign finance law.” Such research, Day claimed, amounted to “guilty conscience evidence” that went to the heart of the government’s case. In substance Day’s argument was: If you’re careful and research the law you are obviously a criminal.
When Day finally sat down, my turn came to speak to the jurors. I laid out a simple formula for fair play. “You noticed that I did not object once to Mr. Day’s opening statement. Why didn’t I object to objectionable things? I wanted you to hear what he had to say. I didn’t want to interrupt his train of thought. I didn’t want the judge interjecting in response to my objections. And I hope that he will give me the same—”
MR. DAY (Jumping to his feet and waving in the direction of the bench): “Objection, Your Honor!” Day said on the edge of a shout. (There was laughter from both jurors and the audience.) “We have a duty to object!”
JUDGE BORMAN: “I’ll sustain the objection.… Please proceed, Mr. Spence.”
His Honor had sustained an objection to my mere hope that the prosecutor would give me the same fair treatment that I gave him?
Day followed what I thought had been the judge’s clear invitation to continue making objections. He interrupted my final argument twenty-four times by actual count. That the judge occasionally overruled one of Day’s objections made little difference, for the flow of the story and the drama the jurors had been waiting for after long weeks of dreary testimony were stopped cold.
Sometimes during an especially indecorous objection I would gaze off into space like a patient father enduring the carryings-on of a misbehaving child. At other times I would smile at the young prosecutor with forgiveness. At still other times, when I knew an objection was about to burst from the prosecutor’s lips, I’d stop my argument, turn to him, and with a gesture offer my silence until he rose to make his objection. Sometimes I toyed with the judge in tired but good-natured exchanges, and although all of this tended to rip apart the structure of good argument, nevertheless, in the end I gave the government room to do itself in.
Day had used PowerPoint to gather up and present snippets of facts on a large screen, facts I thought that were out of context. So I asked, “How do you prove a case by snippets? That’s an important word, snippets. Every time Mr. Day punched a button, we got another snippet on the screen. Snippet after snippet. If you took each small piece of the evidence that you heard, and pasted them together, don’t you think you could make anyone look pretty bad?
“This is a case, ladies and gentlemen, about the intimidation of witnesses. They’ve even charged Mr. Johnson, who’s done nothing, who ought to be home with his family and his daughter. They charged him hoping that he would flip against Mr. Fieger.
“It took courage for Mr. Fieger to take the stand. And the answer to his courage from Mr. Day is, ‘You are a liar, Mr. Fieger. The jury should convict you because you are a liar.’
“They said Mr. Fieger was a savvy politician because he once ran for governor. Yes, he was a savvy politician. What does that mean? Does that mean that he violated laws knowingly and willfully because he ran for governor? Isn’t that what you call profiling? Isn’t that what you say about a kid walking down the street with his hat on backwards and his pants hanging and the shirt that comes down past his knees, and you say he must be a gang leader? It’s called profiling. And they profiled Mr. Fieger without proof. How is it in America we try to put people away based on profiling?” I looked at the two black jurors. And waited.
MR. DAY: “Objection, Your Honor. The whole suggestion we profile—”
JUDGE BORMAN: “I’ll sustain the objection.”
I decided to put it all on the table and see what Day and the judge would do with this truth. “So let me ask you a question,” I said to the jurors. “Where did they get the power, the permission, to bring at least eighty federal agents down on Mr. Fieger? Where did that power come from? The authority to raid a lawyer’s office has to be approved by the attorney general.”
MR. DAY: “Objection, Your Honor.”
JUDGE BORMAN: “I’ll sustain that objection.”
MR. SPENCE: “Well, I guess you won’t sustain this one, Your Honor. This inexperienced young man was sent here by the powers that be.”
I pointed at Day.
“And he suggests there’s nothing to be taken from that? I can remember when I was a young man, very young. I used to tell people how young I was, how inexperienced I was. And in hopes that that would gain me some advantage. Now at this time, I’m old. I tell everybody how old I am, hoping that I’ll get a little advantage from that as well. But the people in Washington, D.C., aren’t dullards. I mean, it was a brilliant move. This is a brilliant young lawyer. He’s personable in a hateful case.”
MR. DAY: “Objection, Your Honor.”
JUDGE BORMAN: “I’ll sustain the objection as to the term ‘hateful.’ The rules of civility apply.”
MR. SPENCE: “Let me see if this is all right. He’s a nice young man in a political extravaganza.”
MR. DAY: “Your Honor?”
JUDGE BORMAN: “Overruled. This is argument, so let’s go ahead.”
MR. SPENCE: “What better, smarter decision was there than they send him here. Let’s get this straight one last time. It’s all right for them to examine every hidden, every single thing that Mr. Fieger did or said or parts of testimony and snippets along the way. Snippet here, snippet there, snippet someplace else. It is all right to test Mr. Fieger’s honesty and his integrity, but it is not all right for us to test theirs? I listened to Mr. Day’s argument and I thought to myself, ‘If it’s a snippet, let’s nip it.’”
I looked up at the judge.
“Now, having caused all this trouble, Your Honor, I find that this is a case about silencing a citizen. And I find it is a case about freedom of speech. What would it be like if we don’t have freedom of speech? If we don’t have freedom of speech, we don’t have freedom.”
MR. DAY: “Freedom of speech and those kinds of things—”
JUDGE BORMAN TO MR. DAY: “Counsel, this is argument in a political campaign contribution case. Overruled.” (Was the storm passing, the sky clearing, the sun peeking through?)
MR. SPENCE: “So I’d like to talk with you a little bit about the facts of the case. I’m thinking about my friend Geoffrey Fieger, and who he is, where he came from. He’s a man who has risen to some height in our community. Why?”
I said he was a man who wanted to carry on the work of his parents, to fight for ordinary people, a man who cared about them. The prosecutors asked what credit he expected to receive for his contribution to Edwards. Here’s how Geoffrey answered that question. He said, “I will tell you what credit I got. I got an indictment with ten counts of felonies. That’s the credit that I got.”
I pressed on. “And of the eleven witnesses that they brought in here, not one of them ever said that he asked them to do anything that was dishonest. Not one witness in this case.”
I read from the courts instructions. “‘The requirement that Mr. Fieger and Mr. Johnson acted knowingly and willfully means that the government must prove beyond a reasonable doubt that they were aware of what the law required and that they violated the law.’ Not snippets,” I added.
“‘How could reimbursement be illegal?’ Fieger asked. ‘My wife works at home. If she wants to contribute and I reimburse her, she’s suddenly a criminal, and so am I?’ Mr. Johnson has a grown daughter in college. I think she’s sitting in the courtroom. I can see her. When she contributes and he reimburses her, she is a criminal? Mr. Fieger’s mother, your mom, Geoffrey, wanted to contribute. And she did. She’s on Social Security. She didn’t have enough and you reimbursed her.
“Geoffrey looked at the statutes. ‘How do you interpret that?’ he said to himself. ‘It must mean that you can’t contribute in the name of people you take out of the phone book—go down, buy checks, and say this is from them.’ That’s what that statute said to him. Very frankly, it also said it to me.
“I was lying awake last night thinking about this case. Hope you were sleeping,” I said to the jurors. “I thought about when I was a kid and we’d go down to the riverbank in the mountains of Wyoming. And we’d lie down on the bank with a snare. It was just a wire with a loop on it. There’s the trout nice and innocent swimming against the current a little bit. I’m flat on the ground so the trout can’t see me. I let the snare down real easy over the trout’s head. And when I get it over the head, just behind the gills, I jerk it up hard, and out comes the trout. That political contribution law is a snare, a law to get unsuspecting people like Mr. Fieger.
“One day a fellow named Humphrey visited the office of the FBI to tell them that Fieger fired him because he wouldn’t make a contribution to Edwards. The people from the government were so eager to get Geoffrey that they forgot to ask any questions about Humphrey’s past or why he had waited two years to lodge his complaint with the FBI.
“Now the government agencies rushed in to open their case files against Geoffrey. Not only the United States Attorney’s Office in Michigan, but at the same time, the Public Integrity Section in Washington, D.C., opened their files. In one day, Mr. Rees got both to open files, they were so excited. They had their star witness, Mr. Humphrey, and finally they were going to be able to prosecute Mr. Fieger.
“Mr. Fieger didn’t know that they were investigating him. This was all secret. Wouldn’t a fair person pick up the phone and say, ‘Mr. Fieger, we’ve got a man in here by the name of Eric Humphrey. Do you know anything about him?’ What do you think Mr. Fieger would have said? They didn’t talk to Mr. Fieger. They didn’t talk to anybody that knew Humphrey, didn’t talk to his wife, didn’t talk to his police chief. They didn’t talk to anybody. They just got this investigation going that became the largest investigation of its kind in the history of campaign contribution law.”
MR. DAY: “Object.”
MR. SPENCE: “That’s the law.”
JUDGE BORMAN: “I’ll sustain the objection to the historical fact. Let’s go ahead.”
“Now after Humphrey comes in, Mr. Fieger is still going along his merry way, kind of like the trout lying peacefully in the clear water in the rapids—just there doing his thing. But while he’s doing that, Rees is sending out secret subpoenas to the banks and to everyone who contributed. Mr. Fieger doesn’t know that they’re subpoenaing records from all over the country—getting those checks from everywhere. And this goes on for seven full months.”
I turned to the judge.
“I can tell, Your Honor, that this jury is getting awful tired. Could we have a recess?”
JUDGE BORMAN: “Go on for twenty more minutes.”
MR. SPENCE: “They are probably getting sweaty bottoms.”
JUDGE BORMAN: “Let’s not go there.”
Smiles from the jurors.
MR. SPENCE: “So what did I end up saying before the sweaty bottoms?” Whereupon the reporter then read back my last statement.
“Now, Mr. Rees testified there was no pressure put on the witnesses. Reading the FBI’s reports, we never saw a single reference to any kind of intimidation, including the FBI telling witnesses they could be charged with felonies. You heard witnesses say they were told by the FBI that they were felons. That they could go to the penitentiary for what they did. No pressure?
“Now comes a raid with eighty or more government agents. Counsel doesn’t want me to call it a raid. How about we call it a nightly visit? We’re going to make a nightly visit with two FBI guys in trench coats and their guns and their badges and their files—make a nightly visit on these folks and tell these folks that they are felons. That they violated the law. That they could go to the penitentiary.
“And that grand jury was in session for a matter that could have been resolved in two weeks, or at least two months, not two years. Why did it take that long? Why do you think they did this? ‘If we can’t convict him, we can destroy him.’
“The people in their own offices in the Fieger firm were afraid to talk to each other. These are teams that work together trying to help people. Now they couldn’t talk to each other. ‘If we talk to each other, we might get charged with obstruction of justice.’
“There is a word called betrayal. We all know what betrayal is. All of us have one time or another been betrayed by somebody. But our government can betray us as well.”
MR. DAY: “Objection, Your Honor.”
JUDGE BORMAN: “This is argument. Overruled.”
I continued, “When the government, with all of its power, misuses its power, it’s called betrayal. Every one of those poor people who came into this courtroom under those compulsion agreements believed they were potential felons, and that they could be put in prison. None were told by the prosecution that they, nor Mr. Fieger, nor anybody else involved in the case, could not be guilty of a felony unless they knew what they were doing was illegal and did it anyway; ‘willfully’ is the word. That these government agents did not so advise the people seems like blatant betrayal to me.
“Mr. Fieger has been charged in this case with doing things secretly. Who is the mother of all secrets here? The mother of all secrets is the government. The grand jury was secret. The papers that were served on the various banks were all secret. The Paychex records, you saw them, those were all secret. They descended upon these people with those agents at night, secretly. The rights of the people were held secret from them. They were never told they didn’t have to talk to the FBI. They got the IRS in as well to make sure that there wasn’t any escape.”
Over Day’s objection I read to the jury the closing statement in the files of the IRS. That agency concluded, “This investigation should be discontinued.”
I read to the jury the court’s standard instruction: “‘The defendant has no obligation to present any evidence at all.’ None. ‘Or to prove to the jury in any way that he is innocent.’ The instruction goes on to say: ‘The government must prove every element of the crime charged beyond a reasonable doubt.’”
I read further: “‘The indictment is not any evidence at all of guilt.’ I had Mr. Fieger bring me some of his children’s play blocks. I’m going to play with them because there’s part of me that’s still a child.”
I told the jury that the indictment was a document that stacked charge on charge, the basic charge being giving in the name of another. “The first two charges in the indictment were based on that. Sixty-four different people made up these first two charges. And out of sixty-four different persons supposedly involved, only eleven came to court?” I stacked up the first two blocks. “Then the next two blocks are for causing a corporation to give, and I’m going to challenge Mr. Helland here.”
JUDGE BORMAN: “Counsel, that’s inappropriate to challenge other counsel. Just argue to the jury. Don’t make it personal.”
I continued, “Section 441b of the law says it is unlawful for a corporation to make a contribution in connection with any federal election. I challenge the record in this case to produce a single check that was written by the Fieger corporation to John Edwards. The checks were from Mr. Fieger personally to his employees that he reimbursed. So the next two blocks [I put two more on the stack] are the two charges that the prosecution brought for his corporation giving to Mr. Edwards. So now we have four blocks, one for each charge.
“These next four charges are for causing Edwards to file false reports. Mr. Fieger never saw a single report that was ever filed by Mr. Edwards, and never talked to anybody. Mr. Baldick from the Edwards campaign was on the stand and never said a word about it. How could Mr. Fieger be guilty of causing Edwards to file false reports when Mr. Fieger didn’t even know they were made? Four reports, one for each quarter?” I pointed out that if there had been sixteen quarters there would have been sixteen charges, each one a felony. With the last four, there were now eight blocks stacked up.
“But of course, that’s not all. There’s a charge of conspiracy. Now, a conspiracy, the judge tells us in his instructions, is an agreement to do something unlawful. In the beginning one must ask whether it was an illegal act. You can’t have a conspiracy to not commit a crime. So there’s your conspiracy. It sounds like they’re dealing with the Mafia and there are bodies in the bottom of the river.
“There’s one more charge to make the ten. You know what I’m going to do here, don’t you? [I am reaching for the bottom blocks.] When you take those two bottom blocks out—that he violated the law by giving in the name of another, and you find that he is innocent because he had no knowledge that that was wrong, this is where the indictment goes.” I pulled the two bottom ones out and the whole stack came tumbling down. Several jurors nodded in amusement.
“Now I want to talk about the last charge, which is obstruction of justice. There’s an old adage among trial lawyers that if the prosecution doesn’t have a case you’ll hear lots about obstruction of justice. This is a charge that the prosecution can manufacture themselves. Let’s see what has been manufactured here.”
JUDGE BORMAN: “Wait. Sorry, Mr. Spence, just wanted to make sure.” I couldn’t guess what the judge was worrying about. I continued.
MR. SPENCE: “Let’s start with Mr. Rees.” (Day interrupted, likely thinking that the court had been giving him a sign.)
MR. DAY: “Your Honor, that’s not how charges are brought.”
JUDGE BORMAN: “Overruled. This is argument. You can respond.”
MR. SPENCE: “Mr. Rees sure taught Mr. Fieger something. You better not tell an FBI man to take a hike or you’ll be charged with the worst crime—the one with the heaviest penalty—obstruction of justice. Mr. Fieger obstructed justice with Wensdy White when he talked with her?” (I read from Wensdy’s testimony.) “She said, ‘He reiterated to me that he thinks that the charge isn’t valid.’ That was obstruction of justice?
“You remember … innocently, she didn’t know she could even talk to Mr. Fieger, because she thought if she talked to Mr. Fieger she would then have to call up Mr. Rees and tell him what he said.”
JUDGE BORMAN: “Sustained.” The judge was now taking on the role of both prosecutor and judge by sustaining objections that Day hadn’t even been made.
MR. SPENCE: “So the question comes to me, who’s guilty of obstruction of justice? Who threatened the witnesses? Who told—”
MR. DAY: “Objection, Your Honor.”
JUDGE BORMAN: “This is argument. Overruled.”
MR. SPENCE: “Who told witnesses they were guilty of felonies? Who told witnesses that they should admit to crimes that they didn’t commit? Who held secret from the witnesses that they couldn’t be guilty of anything unless they knowingly, willfully violated the law? Who’s really guilty of a conspiracy here? Are these two here [I point to Day and Helland] guilty of a conspiracy? Or do we have a joining of hands between the powers that be in Washington, D.C., and the United States Attorney’s Office in Michigan?”
No objection.
I went on to say, “You know this law may be imperfect. It’s been on the books for forty years and was written by a bunch of politicians in Washington. But they didn’t want a law to be used for improper purposes. And so they put in words that say you have to knowingly and willfully violate this law. And that’s the protective device.
“Most of us learn that ignorance of the law is no excuse, but that’s for laws like robbery and murder—laws where we all know what the law is. But this is a law that’s hard to understand. And the politicians who wrote it surely must have known that. Yet, during all of this testimony, I don’t think I ever heard the words ‘knowingly and willfully’ ever leave the lips of Mr. Day or Mr. Helland. Of all of the things they put up on the board, I never saw them put those words up there. Of all of the witnesses that testified, none of them were ever advised about that absolute heart of the law. They kept it secret from everybody.
“The bottom-line question is this: Have they, with their snippets, proved that this man is a criminal? If you find that there was no knowing and willful conduct on his part, the answer to this is very simple and very quick.
“I have a vision here, folks. I came a long way to defend a good man. And I have a vision here that we can all walk out of this courtroom together free, all of us. That Mr. Fieger can go home free to his Keenie and to his family. That Mr. Johnson can go home to his family and his daughter. We can all walk out of this courtroom feeling proud. Because, folks, seldom do citizens have an opportunity to do something that’s great.
“This case stands for American citizens fighting against corrupt power. It stands for courage. It will be taught in the law schools of this country, a guide to justice as envisioned by our founders. It stands for the proposition that juries like you are the last wall against an invading tyranny. And that the people, juries, ordinary people in a democracy, are the ones who keep us free.
“I am about to leave you. This is my last case. I will be eighty in January, and it’s time for me to put down the sword. But I am humbled and I’m proud that it’s been with you in this case for this good man.”
* * *
Here is a trial lawyer’s definition of helplessness: the moment when I’m forced to sit as silent as a tomb and listen to the prosecutor’s attack with no chance to reply. It’s like a fighter forced against the ropes with his hands tied behind him while his opponent pummels him mercilessly. But still we assert with pride that in America the accused gets a fair trial.
Clearly, Lynn Helland and Kendall Day had devised a plan going into the final arguments. Day would disrupt my argument with continuous objections so an effective closing argument would be impossible, and whatever points I might make Helland would obliterate in his final argument without fear of any response from me. Get ready for the marshals to drag Geoffrey Fieger off to the nearest federal pen.
Helland began with a frontal attack. He stared at Geoffrey sitting next to me. “On every important point in this case Geoffrey Fieger isn’t worthy of your belief,” Helland hollered, his tone hard and filled with contempt. “But the most offensive thing that happened in this case was when Geoffrey Fieger testified and lied.” His arguments sounded reasonable, but they came off like pancakes without the butter and syrup. He was speaking into his notes when he said to the jury, “Fieger knew that reimbursing other people’s contributions is wrong.”
Helland referred to the night of the raid, of “shock and awe” as we called it, when Rees of the FBI had Fieger on the phone. Rees asked, “Did you reimburse your employees, Mr. Fieger?” Then Helland quoted Fieger, who supposedly answered, “Nobody got reimbursed. It’s absurd to say I funneled money.”
Helland had no choice but to embrace Humphrey. “Eric Humphrey—we’re all uncomfortable with him. But Eric Humphrey is human. Eric Humphrey tried to warn Mr. Fieger about the illegality of what he was doing … as did at least seven witnesses, all of whom put him on notice that he was violating the law.”
Helland turned to metaphor. He said, “Suppose Mr. Fieger asks you to take a potential client out for a nice dinner in order to get the person to hire his law firm. He tells you to go to this really fancy restaurant. But you say, ‘I can’t even afford the appetizers at that place.’ Mr. Fieger says, ‘Don’t worry about it, I’ll take care of it.’ So you go to dinner. You put it on your credit card. You give Mr. Fieger the bill for it. A week later, three hundred and fifty bucks, the cost of the dinner, shows up in your bank account. The question is, who paid for that dinner—was it you or was it Mr. Fieger?
“Mr. Spence and Mr. Fieger have said that the word ‘reimbursement’ does not appear in any of the statutes we’ve been looking at. Well, let me suggest that’s another attempt at lawyer trickery. You need to know a reimbursement of a political contribution is a crime. Judge Borman said it earlier in the trial. The law says you can’t make a contribution in the name of another.” Helland shrugged off my stacking of the blocks as misleading since each crime charged was independent of all the other charges. That said, he argued on.
“Ask yourselves, if Mr. Fieger thought he was doing the right thing, why did he lie to Jeff Rees? Why did he tell Wensdy White and Shant Gharibian [who owned the gym where Fieger worked out] to just say you supported Edwards? Why did he tell those folks not to talk to the FBI? Why did he pay an extra $35,000 to make these reimbursements look like bonuses? [He was talking about paying withholding and Social Security on the reimbursements.] The reality is Mr. Fieger knew all along that he was doing the wrong thing.
“The defense would like us to apologize for bringing this case. But we don’t apologize. Our job is to enforce the laws, and we do it fairly, we try to do it effectively. We didn’t bring this case for political reasons or because anybody was out to get Geoffrey Fieger. If he was a Republican or an unknown and sitting there, we’d be bringing exactly the same case. Lawyers shouldn’t be able to deliberately break the law and get away with it.
“But after you deliberate, after you’ve had a chance to look at the evidence, we do ask you to return verdicts of guilty as to both defendants and on all the counts they face. Thank you.”
Judge Borman: “Thank you, Mr. Helland.”
I hadn’t objected once.
* * *
It was the twenty-eighth day of May. The judge had instructed the jury about all the ramifications of the law, especially the law of conspiracy and obstruction of justice. He again told the jury that Geoffrey had violated the law with his reimbursements. The only question remaining for the jury’s determination, after twenty days of trial and pages and pages of the judge’s instructions, was whether Geoffrey knew he had violated the law.
After the judge had completed his instructions, the jury trudged out. I thought they were exhausted physically, mentally, and emotionally. Taking his instructions as a whole, I wanted to shake like an old dog covered with fleas. I wanted to roll in the dirt and get rid of all of the language, the charges and exceptions, and exceptions to the exceptions, all of which, in the end, made the charges more biting. It had been many hours since my last words were spoken to the jurors.
But I thought there was too much for the prosecutors to overcome. The toxic trail of politics had been revealed. As in nearly every jury case, the unspoken question from the standpoint of the jurors is, which side is more credible? And that meant, which lawyer would the jury follow? That question was reduced even more: Which lawyer cared the most? And was his caring genuine? And even further, was his caring justified? In the end, each juror’s own feelings would dictate his or her vote. Would a conviction of Geoffrey Fieger protect them, or would it simply forward the interests of Power, which looms as an ever-waiting leviathan that can attack and destroy a citizen at will?
After two days of deliberations the jurors went home for the weekend, without a verdict. Geoffrey knew and I knew that quick verdicts are not the rule for an acquittal. But Geoffrey was shaken. “What’s going on?” he asked. “Will we win? What’s taking them so long?” Over and over these same questions came tumbling out of troubled lips. This is one of the most fearless lawyers I have ever known. But he was human, and the case was beyond his control. He was a man who had always been in control. He was helpless, and his life was in the hands of twelve strangers he’d never met outside the courtroom, and a judge looking down with that smile.
I told him this jury would never convict him. If I had any doubt it was smothered by the weight of the case on our side—and the jurors had to embrace Helland and Day at a deep emotional level to convict. I thought that both Helland and Day had failed to move the case out from under the shadows of partisan politics. I also thought that both Helland and Day had failed to gain the trust that jurors require before they are willing to destroy another human being. A conviction here was not screaming out as the right thing to do.
But during nearly every hour of each day it was the same: “What’s taking them so long? Will we win?” My answer to Geoffrey was always the same. “We will win. Trust the jury.”
The media wasn’t so confident. One commentator raised an alarming possibility: “In a mesmerizing performance [Spence] commanded the room as can few others.… Spence is charisma personified. But Spence made one mistake in his argument that could cost Fieger his freedom. ‘If this prosecution can happen to Fieger, it can happen to any of us,’ he said. It is a powerful argument in the right case. But … who was Spence talking about? The fact is most Americans cannot conceive of giving more than $100,000 to a political candidate by using employees as strawmen. This is not a case of the Government versus Everyman. Much though it pains me to admit this, there was power in the Government’s assertion that ‘Fieger thinks he is smarter than you.’ With wealth comes, alas, arrogance.”29
Geoffrey wanted to know if the journalist’s comments would influence the jurors. I said no. The fellow writing the news story was selling newspapers. The jurors were real people with their own personal lives at the forefront of their judgment-making.
On their fourth day of deliberations the jury finally announced they had reached a verdict. They looked solemn and exhausted as they entered the courtroom. The judge read the verdict to himself as we held our breaths and I grew light in the head. His smile had vanished. Then he returned the verdict form to the foreman. We had to hear “not guilty” ten times in order for Geoffrey to walk out a free man. Guilty on even one charge would take him away to a hard, dark place for a long, long time. We heard the jury foreman in a monotone announcing, “Not guilty. Not guilty.” We needed to hear it eight more times. I felt a growing weakness in my body as the foreman continued to read down to the tenth and final charge, “Obstruction of justice.”
As he came to the tenth charge, the foreman stopped and looked over at us. For a moment, I feared he was preparing us for the worst. But then: “Not guilty.”
Had I heard him right? There was pandemonium in the courtroom, cheers and clapping and people rushing to hug and congratulate them. Ven Johnson was acquitted of all ten counts as well.
The press descended on Fieger. “I’m very pleased with the American system and the jury,” Geoffrey said. “I thank the jury for listening. I hope this puts an end to political prosecutions in the age of Mr. Bush.”
The media recounted that Fieger was facing a maximum penalty of ten years in prison had he been convicted of obstruction of justice, along with a sure loss of his law license. Both Fieger and Johnson, the media reported, would have faced a maximum of five years for each of the other charges.
Lynn Helland said, “We’re obviously disappointed, but grateful to the jury for the hard work they put in.” The press reported that he again denied the case was politically motivated. Helland was asked but wouldn’t put a price tag on the cost of the case to the government. “We never, ever figure out how much an investigation is going to cost, and we’re not going to start here,” Helland said.
Geoffrey and we, his lawyers, left the building together and found the jurors, all but one, waiting for us on the street corner. They chatted happily with Geoffrey and offered him their congratulations. One juror, a college student from Clinton Township, said she’d finally been swayed by the fact that there was no logical explanation for why Fieger and Johnson would commit career suicide over political contributions. “I can’t imagine you would intentionally destroy your lives and the lives of the people around you,” she said. That was our case. The jurors had heard us.
I now took the opportunity to talk to the media. I told the media I believed Mr. Bush attacked Geoffrey Fieger for his support of John McCain in the 2000 Michigan primary. “When a political party uses government resources as a weapon against its political enemy, such is a prelude to a totalitarian government. What frightens me more than anything is that unless you have the assets that are necessary to support a thorough preparation of your defense over a long period of time, and are able to secure the right support team, there isn’t a chance in the world you can prevail against the U.S. government that has you as its target.”
Geoffrey threw a party for the jurors. I left early. I was most grateful to my friend David Nevin, who day after day covered my back and made some of the best legal arguments I’ve heard in a court of law.
If the jury had convicted Geoffrey Fieger, he would still be in prison, where he would have read the unabashed, unashamed pronouncement from the Supreme Court of the United States in the case of Citizens United v. Federal Election Commission, a five-to-four decision that took the last great leap to convert America into a corporate oligarchy, a land finally, utterly owned by Power and Money. That case allowed the massive wealth of corporations to be invested in political campaigns with little or no restriction. We are owned in one way or another by this corporate oligarchy.
Fieger had been dragged before a federal criminal court to answer the government’s claim that he violated campaign laws by reimbursing his family, friends, and employees. In the year 2010 in the said case of Citizens United, the Supreme Court decreed that corporations are free to make open, unhidden, and unlimited contributions in elections, holding that the law prohibiting the same violated the First Amendment of the Constitution—the right to free speech.
Remember, corporations are not people. But they’ve been granted the rights of people. I’ve never heard a corporation speak, not one word. I’ve never seen a corporation languishing in prison, not one minute. I thought the irony was so sweet. Geoffrey was charged with giving in the name of another, but that is what corporations have done from the beginning. Their money comes from persons, but the person’s contribution is made in the name of the corporation.
Then, on April 2, 2014, the United States Supreme Court handed down its decision in McCutcheon v. FEC. That case wiped out the overall limit on what a wealthy donor can give to political parties during an election cycle. Justice Stephen Breyer, in a biting dissent, wrote, “Where enough money calls the tune, the general public will not be heard.” What if Geoffrey Fieger had been convicted? Would the prosecutors petition the courts for his release, along with an apology from the government for having destroyed an innocent man, or would he still be rotting away behind bars?
Today a tiny handful of super-rich in a nation of 317 million souls can purchase the government. The eternal promise of a democracy has become little more than a cruel myth. So dear Americans, let us loosen up our back muscles, heretofore not accustomed to bowing, and get ready to bow, very long and very low, to our new God. Its name, of course, is Big Money.