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Issue Date: July 2010 Issue


Defense Mechanisms

Dozens of people may be headed to federal prison in the biggest corruption case in Cleveland's history. Their defense is that everyone else was doing it, so why was it a crime?
Michael D. Roberts
editorial@clevelandmagazine.com

Every time I see a criminal attorney these days, I ask what they've heard about the county corruption scandal. Sometimes, I don't even have to ask.

It got so that when I ran into the estimable Angelo F. Lonardo, Esq., at unofficial bar association meetings at Johnny's and the Winking Lizard downtown, he would respond before I said a word: "Nothing, I know nothing."

I even asked an FBI agent who was ordering a well-done hamburger at the Little Bar. She eyed me suspiciously. "You know the drill."

That meant I should know better than to ask her.

Just about everyone involved in this legal drama — the biggest corruption investigation in Cuyahoga County's history and one of the largest ongoing in America — covets the merest bit of information. Any sliver of knowledge or even gossip is especially valuable to a small community of criminal defense lawyers — the white-collar bar, some call themselves — who represent nearly 30 clients who have been identified one way or another in connection with the probe.

The lawyers play a central role: Their ability will determine their clients' fate. Depending upon who you talk to, only about 15 to 20 criminal lawyers in the area are considered qualified to handle these cases, and their legal services do not come cheap. Negotiating a deal with the government can cost between $50,000 and $250,000 while a trial can run up to $1 million.

The cases focus on what was once considered a gray area — that twilight zone between business and banditry, a tangle of kickbacks and back-slapping favors among friends, political associates and public figures. In other words, what used to be the American way. That is why some stunned defendants have uttered the same mantra: "I was just doing what everyone else was."

"Some people involved in these cases have a hard time comprehending what went wrong," says veteran criminal lawyer Robert J. Rotatori, himself once an assistant U.S. attorney. "They go through stages of denial and shock."

The accused are shocked that the charges are not some eradicable misdemeanor and that the businesses they built over years have been damaged, the family name tainted, their kids in school taunted. Newspaper accounts of the defendants' troubles miss the innocent nuances they claim and cling to. Television cameras poke at them like weapons. They are surprised to learn that reporters are human and prone to mistakes. They grow to hate the media. They learn the weight of those dark early hours before dawn when sleep fails to bring solace. They learn of an unforgiving criminal code.

Many view themselves as victims of a government run amok.

Most had no warning that their business-as-usual lives would be suddenly overturned until those summer 2008 FBI raids, when agents seized documents and their sense of decency.

But public officials should have seen it coming, given the government's response to the corruption around Mayor Mike White's administration several years ago. Those close to the FBI say the experience the investigators gained working on the Nate Gray case put them in a perfect position to expand their operations into the county government.

New surveillance technology also aided the investigation. Years ago, it was hard to catch a public official taking kickbacks unless an informant stepped forward. Today, wiretaps and planted listening devices can provide damning evidence. The cell phone is an investigator's dream.

Defending against wiretap evidence is expensive and complicated. I know that firsthand because lawyers have occasionally asked me to review typed transcripts of hundreds of wiretapped conversations and ferret out evidence that might mitigate a charge. It is a tedious, time-consuming, often aimless search.

"The government doesn't provide you with the information that they are building their case around," says John McCaffrey, a former prosecutor and FBI agent and now a member of the white-collar bar. "They give you all the intercepts and make you sort through them."

When the government presents that kind of incriminating evidence, the value of a good criminal defense lawyer grows far beyond the traditional role of a courtroom lawyer. In most of these cases, the arguments take place in private negotiations with an assistant U.S. attorney. The government and the defense lawyer debate the nuances of the case and the severity of the crimes, trying to calculate how much time, if any, the client will spend in prison. Both sides play a cat-and-mouse game, trying to find out what the other knows, hoping to gain that one advantage that will bring about a plea or the dismissal of a charge. That is why everyone involved wants to know every bit of gossip and rumor.

By the time the case gets to this point of negotiation, a defendant is faced with deciding to plea or seek a trial. A plea will buy less prison time while a guilty verdict at trial could bring the maximum sentence.

A trial also holds risk for the prosecution: A miscalculation can ruin months of tedious investigation and legal preparation.

"The one thing prosecutors are fearful of is losing a case," says one lawyer. "That fear is the best card you hold for your client."

To make a deal, clients must not only accept responsibility for a crime but also provide any information they have on others involved. That's one reason the investigation has dragged on for so long.

"It has spread like wildfire," Rotatori says. "One person implicates another and so on. Truth is, no one knows how far this is going to go."

One afternoon I had lunch with a retired FBI agent, a man I have known for nearly 50 years. In that time we have watched the evolution of crime in Cleveland from our different perspectives.

"Yes, there was corruption in town years ago," he said. "Always has been — but the difference now is that it is not tolerated."

Society tolerates crimes, but not forever, he explained. Once, organized crime was overlooked, illegal union activity ignored and extortion through the race card, as in the Nate Gray case, accepted.

Now government corruption is the crime du jour. In the sweep of its prosecution, bewildered people who operated in that gray zone where they thought everyone else prospered will sort the difference between right and wrong — in federal prison.


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