Monday, August 14, 2006

Notes from the Zimmermann Trial--Day 8

Notes from the Zimmermann trial

Here’s the usual cautionary note from the author, Liz McLemore: despite the length and detail of these notes, I’m certain that I’ve missed portions of the testimony. I’d advise anyone interested in details to consult the tapes and transcripts once they’re released. These are notes, not transcripts.

I’d also urge people to check the transcripts closely regarding the five elements Docherty numbered off as especially relevant to this case. The jury had the benefit of written text; the audience didn’t receive a copy of that. As a result, I’d caution readers to consult the transcripts of the trial for complete accuracy about those five elements.

Once again, I’ve inserted my comments within square brackets [ ] throughout the text.

Day 8: Wednesday, August 9, 2006

The evidentiary phase of the trial having concluded yesterday, Judge Montgomery explained that the United States has the burden of proof, first and last. As a result, the prosecution would be presenting its concluding statements before the defense.

Prosecuting attorney John Docherty addressed the jury, saying this corruption case could be correctly summed up by the words with which he began the trial: “Money, money, money.” He urged the jury to find the defendant guilty on all four counts, as justified by the evidence. He said “closing arguments” are part of the trial: he preferred to think of them as a “summation,” since the prosecution had met the burden of proof beyond a reasonable doubt. One instruction that Judge Montgomery would give to the jury, he said, was that they should take apart the “components,” or elements, of the case—the “broken down” parts of the crime—and examine them carefully. He said the prosecution doesn’t do any more than that. He then gave the example of a drunk driving case: the prosecution in such a case must prove that the defendant was drunk, and that the defendant was driving while drunk. He said the jury might be interested in hearing about the bar where the defendant took his last drink, but that information isn’t directly relevant as a component or element of the charges.

In this case, he said, there were five elements [note: I’m not certain I have the numbering correct here; please consult a court transcript for accuracy]:

(1) Zimmermann was an agent of the city of Minneapolis, a Council Member, and therefore had a vote and influence on things like zoning and Certificates of Completion. He was a member of the Zoning and Planning Committee; all city zoning requests go through that committee, so he had more influence than many Council Members on this issue.

(2) The city of Minneapolis had received more than $10,000 in federal money. Both the prosecution and the defense stipulated to this element or component [he referred the jury to Government Exhibit 68 as proof].

(3) Zimmermann solicited, demanded, or agreed to something of value in exchange for doing the business of the city of Minneapolis.

  1. Zimmermann accepted $5000 in cash from developer Gary Carlson on June 14th, 2005;
  2. On August 15th, 2005, Zimmermann accepted envelopes containing $1200 in cash;
  3. On August 31st, 2005, he accepted $1000 in cash;
  4. On or around October 19-29th, 2004, Zimmermann solicited a non-profit group for a retaining wall valued between $2000 and $3000. [Here he referred the jury to Exhibit 2.]

In all four cases, Docherty said, Zimmermann accepted money for himself or the benefit of another in exchange for doing the business of the city of Minneapolis.

Docherty pointed out that photocopies of the cash Zimmermann had accepted were entered as evidence: $5000 in $100 bills accepted at the Baja on June 14th, 2005; $1200 in cash in four campaign envelopes accepted at the light rail station on August 15th, 2005; and $1000 in cash accepted in Zimmermann’s home on August 31st, 2005.

(4) The defendant intended to be rewarded for a transaction he performed for the city of Minneapolis, worth at least $5000. He said the value involved in count one (the $5000) had to do with the fact that Carlson was seeking to have Chicago Commons rezoned; the development itself was valued at $16.2 million. The value involved in counts two and three also had to do with the value of Chicago Commons; in this case, parking problems at the Village Market made it difficult to sell the condominiums at Chicago Commons. (The reason given for building the new Somali mall was to relieve the pressure on Chicago Commons caused by the Village Market.) Again, the value here is the value of Chicago Commons ($16.2 million). Docherty said we can also infer that the cost of building a new Somali mall would exceed $5000. Finally, the value involved in count four can be traced to the value of the Certificates of Completion, which were required before anyone could move into Franklin Station. David Rubedor, the director of PRG, had estimated the value of each unit at $180,000, so count four also involves an amount greater than $5000.

Also involved in element four is the intent of the defendant to be rewarded when he took the money and when he solicited the retaining wall. Docherty reminded the jury that on June 6th, at the Black Forest Inn, Carlson talked about the rezoning and the Planning Commission meeting that next Monday, saying, “that’s what I need. What can I do for you?” and Zimmermann had replied, “money, money, money.” Docherty pointed out that the first mention of money came from Zimmermann.

That pattern, he said, continued at the Baja: on June 14th, 2005, Zimmermann took an envelope containing $5000 in cash, put the money in his pocket, and then dug into his rucksack and pulled out an email from Shirley Heyer about Chicago Commons zoning. After ordering [food and drink], Carlson talked about zoning, parking, and crime—all because Carlson is a developer speaking to a Council Member about official business of the city of Minneapolis. Zimmermann said he was surprised at receiving the money, but the tape in fact never shows that. Zimmermann took the money and got right to business: it was “seamless,” claimed Docherty.

Docherty then explained that “things didn’t work out” on the zoning: Carlson’s request was denied by Council on July 22nd. Zimmermann and Carlson met again, on August 3rd at Chicago Commons. It was there that Carlson tied that money explicitly to the zoning issue, which was city business.

At this point, Docherty replayed the videotape. Carlson is saying something like, “We did the five grand…I know you tried. But what happened?” Zimmermann explains, “Mostly it was a reaction to that mall over there,” adding that he had talked to Schiff and Lilligren, whom he describes as “hostile.” Docherty then told the jury that what they are hearing is a direct tie between the money and Chicago Commons: Zimmermann, he explained, never says to Carlson that there was a misunderstanding that we need to clear up. There’s no attempt [on the part of Zimmermann] to dissociate himself, Docherty said.

Docherty then suggested there was a change in how Zimmermann viewed Carlson after the latter had given him the $5000. Zimmermann explained that there was a concern about putting more retail in the area. Zimmermann said he talked to Lilligren and to Schiff, but Lilligren only made a face, so his reaction was nonverbal. Schiff said only that Carlson didn’t need the zoning change: neither reaction could be described as hostile. Zimmermann, Docherty said, gives the impression [on the tape] of there being a give and take, when in fact he’s simply “leading Mr. Moneybags on.” After Zimmermann spoke to Schiff, he knew the zoning wouldn’t go through—but he never told Carlson because the money would stop flowing if it was over.

On August 15th, Docherty said, Carlson and Zimmermann discuss sites for the new Somali mall. Zimmermann described Carlson as “babbling on,” whereas in fact there was a substantive discussion taking place about zoning, Docherty claimed. He explained that it was important to both of them [Zimmermann and Carlson] that the new development be in Zimmermann’s Ward, since he was the “go-to guy.” Docherty then showed a selection of the tape from August 15th, pointing out that “it’s clear [here] that Carlson isn’t just ‘babbling on.’” We hear Zimmermann on tape saying the Roof Depot is only half empty, and he refers to industrial zoning. Carlson asks about whether retail development is possible, and Zimmermann replies, “yes, I think so.”

Docherty said Zimmermann [on the tape] is responding substantively at this meeting where the $1200 exchanged hands, and it was important that the site be in Zimmermann’s Ward. Zimmermann, he said, “engaged” with Carlson all through their discussion.

It was also clear on August 31st that there was an intent to be rewarded for city business, said Docherty. [He replayed a snippet of the videotaped meeting at Zimmermann’s house.] We see Carlson explain that they need to get Zimmermann elected; we see him give Zimmermann the envelope and say that he doesn’t have all the names, but that’s “something for you, that’s for getting us the zoning over there,” and Zimmermann answers “so alright.” We then see him put his cell phone on top of the envelope containing the cash. Docherty pointed out that Zimmermann never tells Carlson to get out of his house, and he never points out that any of this is a problem.

Docherty then explained that on September 8th, Zimmermann lied repeatedly to the FBI because he knew the truth would hurt him. If the money was taken with no intent of a reward, Docherty said, then there was no need to lie. Zimmermann, he said, had claimed he was panicked. Docherty urged the jury to look at the tapes, to listen to the agents tell Zimmermann he can leave, etc. Docherty said, “what you’ll hear isn’t panic in his voice but a deliberate, measured cadence. A videotape is just what the doctor ordered…You’ll hear the FBI ask Zimmermann if he got any cash from Carlson. Zimmermann only admits to receiving $1200 from Carlson. He lies repeatedly,” Docherty said.

Docherty went on, saying that Zimmermann had claimed he lied because of “stress-induced panic.” But when Agent Bisswurm said “we have the tape,” Zimmermann’s response is “well let’s see it then.” That’s not panic, Docherty claimed. He said that after the tape was played for Zimmermann, it is apparent that the panic is over. Zimmermann then said that he was in the process of forwarding the money to the lawyers—also a lie, said Docherty—the money had been spent. Docherty said Zimmermann referred to the money as “stash,” and a “bundle,” saying he’d been “dipping into it all summer.” Docherty asked the jury to remember the ATM records, pointing out that in July Zimmermann had withdrawn only $40 in cash. These records confirmed that he’d been spending that money, not forwarding it to the lawyers.

Docherty then pointed out that Zimmermann eventually admitted to spending the $5000. The agents then asked him if there was any other money he wanted to admit to getting from Carlson. Docherty displayed a portion of the transcript of the tape [page 31, from the September 8th interview with the FBI] for the jury. The prosecuting attorney reminded the jury that Zimmermann had said he didn’t want to admit to receiving the money. Zimmermann had then claimed [in the courtroom] that his statement wasn’t a lie because “literally,” he didn’t want to admit to it. The real question the FBI was asking Zimmermann, Docherty said—a question which the FBI had asked previously (see page 22 of the transcript)—was did you receive any other cash from Carlson. Zimmermann said no, admitting only to the $1200. The agent then asked Zimmermann, “what if I can show you,” and Zimmermann responded, “let’s see it.” It’s clear that Zimmermann was not panicked, said Docherty: it’s a bald lie.

Docherty continued with the FBI interview, saying Zimmermann had also told the agents the $5000 was at home, in a drawer. During the trial, he said, Zimmermann explained that the money was there in a “universal sense”; in fact, the $100 bills themselves were actually gone.

“What was there also?” Docherty asked. “Miraculously, a $5000 check nearby,” he answered, “a check just produced on Monday.” Docherty then explained that Zimmermann had told the FBI that he could raise the money on credit; he had been under indictment awhile but he never got around to looking for that check until Saturday. On the subject line, Docherty said, was “just what he needed: Gary Carlson. Zimmermann ‘gilded the lily.’” Docherty claimed the check was “over the top, a forgery,” explaining that putting Carlson’s name in the subject line was odd, as though $5000 donations were so common that he needed to distinguish between them. The fact was, Docherty said, that Zimmermann took the money; where he spent it doesn’t matter. Even if the money was intended for Larry Leventhal, Zimmermann acted corruptly, taking money for the benefit of another. He also acted corruptly when he solicited the retaining wall for Mayo.

What does matter, Docherty said, is that Zimmermann sticks to his lie in the FBI tapes. When Zimmermann tells his story, he does so to “get off the hook” and it later emerges that it’s a lie: that’s relevant, claimed Docherty. Zimmermann took $7200 in exchange for city business—spent the cash—all while he was more than $35,000 in credit card debt, writing checks to shift the balance, and mortgaged “to the hilt,” explained Docherty. That’s why most of the $1000 was gone, too, he said. Zimmermann took phony donations at the light rail station—he never gave the envelopes to Dastych to check out—and they went into his desk drawer, along with the $5000 and the $1000: the latter, said Docherty, would eventually all have been spent by Zimmermann, just like the $5000.

Docherty again urged the jury to listen again to the tapes and view the videos. He told them to count the number of times Zimmermann lied to the FBI, when the agents had asked only for the truth.

(5) Zimmermann acted corruptly, knowingly, willfully, and with intent to benefit himself or another. Zimmermann was told to keep quiet about the money and never acted surprised at those requests, Docherty said, because he and Carlson were conspirators. “It made sense to him to keep it quiet,” Docherty added.

Finally, Docherty addressed the issue of entrapment: the issue, he said, was whether the defendant was predisposed or whether government agents overcame his will. At this point, the defense attorney objected: Judge Montgomery explained that it was up to the jury to look at both the defense and the prosecution’s interpretation of the facts in this case.

Docherty continued, saying that the tapes “speak volumes: the government just provided the opportunity. He pointed out that it was the defendant who brought up money at the Black Forest; he also pointed out the “rapidity” with which the money disappeared into Zimmermann’s pants pockets at the Baja. “Zimmermann had all the predisposition in the world to commit,” claimed Docherty.

He then brought up the issues surrounding the electoral process, saying it was Zimmermann who first brought up “cousins,” advising Carlson to give them $350 and have them write a check for $300: “’nobody knows or cares,’” he reported Zimmermann as saying. “Who put up a ‘straw man’ just so there was a primary?” Docherty asked. He then brought up the PRG case, saying “government entrapment doesn’t apply here,” since it was Zimmermann who brought up the free wall and persisted in it.

Docherty wrapped up his concluding statements by urging the jury to find Zimmermann guilty of all four counts, saying the charges were “beyond a reasonable doubt.” Zimmermann’s explanations “don’t bear scrutiny,” Docherty claimed: “he’s sold his office,” and he’s been charged with it. He said the “only conclusion” the jury should come to is “guilty on all four counts.”

The court then took a short recess before the defense began its concluding statements.

The defense attorney, Dan Scott, began by saying that as a lawyer, his clients trust him: but he said he “just presents the evidence.” The people who “count,” he said, are the jurors. A trial is “fundamentally” a case in which a citizen accused is judged by his fellow citizens. He then explained that if lawyers “talk lawyer” talk, the jury will stop listening; as a result, he said, he planned to address the jury’s duties and their “common-sense” decision with regard to the law. He added that it was important to them and to Zimmermann to “do it right.”

The law, he explained, “isn’t that complicated”: he explained that the law deals with whether “an agent of the government agrees to accept something of value with intent to be rewarded,” and that reward involved a thing of over $5000 in value. He said the law specifies that there must be a “direct connection between the reward and the action.”

He then referred to the elements that had just been enumerated by the prosecution: three are important, he said; two of the five were agreed upon by the attorneys, one [of these] in writing. The first element [and one of the two the lawyers had agreed upon, I think], he explained, was whether Zimmermann was an agent of the city of Minneapolis. The second element was whether Minneapolis had received federal money (so this case would be tried in a federal court). [I believe this was the element the lawyers had agreed to in writing, but I could be wrong.] The third and fourth elements, he said, were important, involving whether the defendant had accepted something of value related to transactions in the city of Minneapolis.

Most of the testimony the jury had heard during this trial, Scott said, had nothing to do with the elements of the crimes the defendant was charged with. He explained that the judge won’t define ethics for them, since that wasn’t what they were here to decide. Scott said he and the prosecutor agreed that all of the “extraneous mud” doesn’t matter—such as what Zimmermann was going to do with the money. The question before the jury, he said, was this one: “was it a bribe?” He told the jury “the prosecution wants you to lose sight of that,” saying that it doesn’t matter if Zimmermann wrote a check to FREE or whether he called Leventhal. It doesn’t matter, he said, that Carlson used “legal tender” rather than a check or a credit card (it’s “unseemly,” perhaps, but it’s still “legal tender,” he explained).

What matters, he said, is both intent and whether it was a bribe. He said the “form” matters only if he’s innocent: it’s the government’s job to make him look bad. He said the reason is because “although they control the script and the setup of the crime, they didn’t succeed.”

He said that the prosecution had “come in here with a case on the cheap, trying to sneak it under the radar to make it look like more than what it is.” He said in this case, people had asked for help from their Council Member, and he had provided help and advice, just like he would to anyone. If he was corrupt and looking for bribes, he asked, why was Carlson always the aggressor? The only time they claimed Zimmermann was the aggressor, he said, was when nobody was watching (he explained that Carlson had claimed Zimmermann had taken him by the arm and said he needed money fast). He explained that instead, what we see is Carlson: he set Zimmermann up, and the government “loaded him up.” He told the jury, “when you watch and listen [to the tapes], keep track of every time Carlson brings up money; count the times Zimmermann mentions money.” It’s Carlson who was pushing and pushing, he said—you’ll count nothing on Zimmermann’s side, he added.

Zimmermann, he explained, didn’t handle Carlson’s request any different than he did anyone else’s: when it [the zoning request] failed, it failed. Scott said some witnesses had testified that they had gotten what they wanted, and some didn’t. He said it was the government that was the serpent here, offering forbidden fruit. He told the jury to look closely at Judge Montgomery’s instructions on entrapment, and they’d note that it didn’t involve putting a gun to anyone’s head. In this case, he said, the question had to do with whether Zimmermann was “inveigled”—persuaded or induced, with no force involved. He explained, “we don’t give the government the right to be the serpent.”

Scott said the defense had offered as many witnesses as possible, until the judge had ruled there were enough. These witnesses had said Zimmermann had acted without predisposition, and there was no request for money. If Zimmermann was the aggressor, Scott explained, you’d see him eager and pushing. Instead, he said, you saw the government trying to create the crime: they did not succeed, he added.

The perceptions of lawyers, Scott explained, are sometimes right and sometimes wrong. The tapes the jury saw last week—of the 15th and the 31st of August—the jury’s reactions to those were probably, “say what? Where was the action in return?” He told the jury members that they had a better feel for what had really happened.

He then asked the jury to look at who was motivated: it was only after Carlson asked what he could do that Zimmermann mentioned the redistricting. He explained that the jury could see that it was “not a big deal” when they saw the tape. [note: I may have missed a sentence or two on this particular point.]

He urged the jurors to consult Exhibit 10 from May 3rd, 2004; Carlson’s motivation is clear here when he asked and got OR2 zoning, but with limits placed on his retail in Chicago Commons (zero space for retail on Elliott, he pointed out). They [the Planning Commission] didn’t want to give Carlson what he wanted. He “wanted his cake and [wanted to] eat it, too”—that is, he wanted to make a case with the government and get his zoning. But he slipped, Scott said: Carlson forgot he had already asked for extra retail space, but he never once told Zimmermann that the problem wasn’t the zoning but the conditions the department had set that determined what he couldn’t get.

Scott said this was then an opportunity for Carlson to use the FBI—he had already been asking Lilligren for help and getting nowhere. Carlson chose a business partner he believed could get him what he wanted—Carlson had been “trained” in the suburbs. He might be “tone deaf” to people (here Scott mentioned Carlson’s worker who had said Lilligren was “on the take,” thereby alienating Lilligren), but Carlson always “wanted what he wanted.” He said Carlson had dropped Azzam Sabri when it was clear the latter was not to his advantage.

The prosecution, Scott said, suggested as proof of intent the idea that Zimmermann did research for Carlson only after the redistricting contribution. Scott asked the jury to look at Defense Exhibit 2, which includes several emails from Lilligren. Scott pointed out that Lilligren had also attempted to help Carlson. He urged the jury to look at the dates: on May 23rd, 2005, there was an email from Lilligren to Shirley Heyer about crime, parking, and zoning. In that email, Lilligren explained that he was not advocating for Carlson but would help set up a meeting. What did this have to do with Zimmermann? Scott asked. He asked the jury to flip over the Exhibit and look at the other side: on May 24th, Lilligren had copied Zimmermann, and they had discussed their concerns about parking, crime, and zoning, and the problems Carlson had with the neighborhood. [Note: the last email may have been from Zimmermann rather than Lilligren. My notes are ambiguous on this point.]

Scott then played about 60 seconds of the tape from May 27th, a voicemail message from Zimmermann to Carlson that took place three days after the emails. Zimmermann says he’s looked into the parking issues and the fence, and says he’s not getting the help of Council. He explains to Carlson that he and Lilligren are both looking into the issue. Scott pointed out that Lilligren couldn’t remember this, but was reminded by the email. Scott explained that Zimmermann was working on it—that’s why he asked Carlson to remind him of where they were on it.

Scott then turned the jury’s attention to the fundraiser, saying the “money, money, money” comment was said in a humorous way—and it was said before Carlson got there. He said the prosecution had given the expression “talismanic significance,” since it was the only time Zimmermann had mentioned money. But, Scott said, the expression had nothing to do with the conversation or a bribe—“for mercy’s sake,” he said, “it was a fundraiser, not a bake sale.”

On June 14th, Zimmermann had asked Carlson what had happened at the Planning meeting. Carlson said “things went bad.” When they met at the Baja, he asked him, “how about a Bacardi coke?” and he had ordered another for himself. Carlson had added, “before I forget,” here’s money for that “attorney thing,” Scott said. The zoning? He had said, “I guess so.” And then when talking about the Village Market, Zimmermann brought out the email.

Carlson “blew his lines,” Scott said. Zimmermann should have said “don’t talk to me about the Village Market, talk about money.” He didn’t: he said “call Shirley.” On the 15th, he talked about his conversation with Schiff, who had said the zoning is “better than the one you want.” On the 16th, he told Carlson “what you want is not a problem with OR2.” The problem, Scott said, had to do with the restriction in OR2, not the zoning.

Scott explained that Carlson tried to set up a meeting with Lilligren in one of the “snottier letters I’ve seen for someone asking favors.” It was Zimmermann’s problem, too: how to get Carlson to act in a nice way. The problem for Carlson, Scott said, is not crime but people who are “not of Nordic hue” in the area where he’s trying to sell his condos.

Scott said Carlson offered all this money to Heyer and Lilligren and still didn’t get what he wanted; instead, he scared them away.

Carlson, Scott said, gave $5000 to the redistricting suit, but he himself never even gave $300. Carlson had to keep shifting the conversation to some other area, Scott said; he then told the jury, “the government’s got you believing he [Zimmermann] wanted more, but Zimmermann’s not pushing for more.”

Scott then said something about the zoning issue being over on July 26th [?], but Carlson kept leading Zimmermann on; the FBI says they have a new theory, Scott said, so they’re leading Zimmermann on.

Scott said it [the money Carlson gave to Zimmermann] was not the $28,000 that Carlson raised for Coleman but $5000. Scott told the jury, “if you believe Carlson’s testimony, that Zimmermann wanted to go to a Coleman fundraiser, then it’s too late for all of us.”

Carlson, he said, talked to Zimmermann about his Hummer, deep sea fishing, and his condo in Florida. Zimmermann said he’d never been to Florida. Carlson told him to come on down [and fish], you won’t have to cut a hole in the ice. Carlson was showing off, Scott said; a $5000 donation from Carlson was nothing for him, from Zimmermann’s point of view. Linda North [one of the witnesses for the defense] doesn’t even have $5000: she gave $40 to the campaign.

Carlson “butters up” Zimmermann, Scott said, telling him “we need to have you elected.” He spent more time on that than anything, Scott explained. Scott said it’s not important to the case whether Zimmermann wrote a check [to the redistricting campaign]; that’s why it’s genuine, Scott said. It’s irrelevant to the prosecution’s case—it surprised them—Taylor said he saw the check—so what? It doesn’t matter, Scott said, it’s just a fact of the case. Except for the accusation, it’s not important.

There’s a misperception by the government on what they have, Scott explained: [they think that] everything they investigate must be a crime.

Scott told the jury, “it’s easy to decide by people who wrote the script”—Carlson could have said $30,000, a piece of the business, etc….It’s a serious case—public corruption—and when the U.S. attorney’s office is able to report it in press releases, “they count ‘em up.” They should have made it a real case, Scott said—they should have shown what an enthusiastic participant Zimmermann was. But they did it on the cheap—they took advantage of people’s ideas about cash, that it looked bad, that Zimmermann was a politician—the whole thing was made to look bad, and they know the weakness of the average citizen. They couldn’t punish anyone big, so they got someone small.

As far as the PRG charge, Scott said, it’s a joke. The alleyway is a joke. They [PRG] ripped down the house and messed up the land. One of the issues in the swap was a retaining wall—“negotiate if needed,” they said. PRG took responsibility, then made a decision it was not needed—they knew they were dealing with Dean [as Mayo’s advisor]. Rubedor’s predecessor said “consult your advisor”—a week before the agreement was done. They got criticism mixed with praise from Zimmermann. Zimmermann didn’t want a reward, he said let me build you a wall. Then he said, “any thoughts?” The issue was open for discussion—Zimmermann said [to PRG] “you really didn’t finish the project…”

But the government says that’s public corruption, Scott continued. That’s why we have jurors. Zimmermann tried to help out—at least they could have put in railroad ties, which they did not put in. It was a minor irritant for the neighborhood. The government says the official actions were the Certificates of Completion—but they could be signed by anyone on whatever day. They had nothing to do with official actions.

The same was true of the redistricting: the government tried to make it sound like the issue was immediately important, but it wasn’t—they had to close the account. But the government needed to build it up so they had a case—no one thought it was important then. Shoemaker was in Alaska—“there’s a man we’d like to trade lives with,” Scott said. This was a vehicle for them [the government], not for anyone else.

Now to counts two and three, Scott said. There’s a “lawyer trick”: ask three to five questions at once, finish with a last one…[Scott said the prosecution used this trick, adding that] somewhere in there Docherty stuck in the $5000—but that wasn’t the question asked. [I’m not completely sure what specific instance Scott was referring to here, but it sounded as though Scott is claiming Docherty fired several questions off at Zimmermann; when Zimmermann answered only the last one he was made to look bad, because an earlier question in the series was phrased in a damaging fashion—and the defendant appeared to have assented to something damaging in an earlier question, when in fact he was only answering the last one in the series. But my notes aren’t clear here…] Scott explained that “we have that here because they [the U.S. attorney’s office] don’t have a case.

Zimmermann is a citizen, no different from members of the jury, Scott explained. The government wants a chance to impose all penalties if they take a citizen and accuse him of a crime. [He then said something about history and only the nobles getting a fair trial about a thousand years ago.] Here, the defendant is presumed to be innocent: that carries through to the end, and he has no burden to prove that he’s innocent. The only way to overcome the presumption of innocence is to prove the charges beyond a reasonable doubt. Scott told the jury, “you must be darned sure you wouldn’t hesitate in your decision, treating it as if it were the most important of your affairs.” If you look up [while driving] to see if the light has changed, you hesitate. In this case, Scott said, we’re missing what color the light is. [He then referred again to critical decisions in a person’s life—buying a home, having kids, etc.—saying to the jury that they must be confident, adding something like “it’s what you’d expect if it were your shoes or your neighbor’s.”]

The problem, Scott said, is the government knows it has the burden of proof. But they didn’t put a case together that would meet it—there are not events here where no one would hesitate.

Scott concluded by saying “Zimmermann didn’t solicit or accept a bribe—he was not predisposed. The government tried to present the apple, but they didn’t succeed. They’re trying to show a crime when one doesn’t exist….The only verdict possible is innocent on all four counts.”

The court recessed for a short break until about 11:40.

The prosecution again took the floor. Docherty pointed out that in the 56 minutes of argument that the defense had just put forth, there was not one word about Zimmermann’s testimony to the FBI on September 8th. Docherty claimed the tapes from September 8th “blow the claim of entrapment out of the water.” He explained that in cases of entrapment, the government had to have “created” the crime, so the defendant was induced or persuaded. If the prosecution could prove that the defendant was predisposed or intended to commit the acts, however, the defendant was not entrapped.

Docherty referred to Zimmermann’s lies to the FBI on September 8th, saying that Zimmermann changed his story only after he was shown evidence. Although Zimmermann attempted to explain these lies as confusion or panic, he was in fact precise with his language, and “loose” with the money in the drawer: Docherty said that in the one hour and forty minutes of audiotape, Zimmermann displayed his consciousness of his own guilt. On tape, Zimmermann said he didn’t take the money, then said he took it, then said it was going to the lawyer, then claimed it was at home in his drawer, then finally admitted that he took the money and spent it. Docherty said Zimmermann knew that was evidence of his guilt: he had something to hide, Docherty claimed, and he was predisposed.

Docherty then cited the issue of “cousins” and Zimmermann’s explanations of how to avoid campaign finance limits as additional evidence of predisposition. He said at the Black Forest, it was Zimmermann who brought up the money. Docherty said something about the defense claiming it was the “theme of the evening.” Docherty said, OK, then mentioned the Baja and the “speed” with which the $5000 disappeared into Zimmermann’s pockets. He said on August 15th. there was a substantive discussion about zoning, but Zimmermann claimed Carlson had simply “babbled.” In addition, Docherty said, Zimmermann had attempted to hide what was going on at his home on August 31st by putting a cell phone on top of the money. All this, Docherty said, shows what was really going on at the Black Forest. We know that when Zimmermann said, “money, money, money,” he meant it, claimed Docherty.

Docherty then said the tie between the money and city business was made explicit on August 3rd.

He repeated his claim that it wasn’t a case of entrapment, but a situation in which someone was predisposed. The government gave Zimmermann the opportunity to do something he was already predisposed to do.

Docherty said the defense attorney, Scott, had asked where was the something in return for the money? Docherty countered this claim by saying (1) Zimmermann violated the law when he accepted something of value in exchange for city business. He didn’t have to accomplish that business, just work on it (Docherty mentioned Collins’s research on the zoning issue for Carlson). (2) Scott had mentioned Carlson’s “tone deaf, snotty letter.” Docherty asked what this had to do with the issues in this case. He told the jury, “if you vote for guilt, that’s saying on such and such a day, the criminal laws were violated. It doesn’t matter what Carlson was doing” [I think he added here, “that he wasn’t home for dinner,” but I’m not sure]. What matters, he said, are the three occasions and the money.

On August 3rd, Docherty continued, Carlson made explicit the tie between the zoning and the money. Zimmermann “cruises right through it,” Docherty claimed, and never once told Carlson there was a miscommunication. In fact, he said, Zimmermann “tells him what he got for his $5000.”

Scott, Docherty said, had argued that the Baja meeting was not about zoning. In fact, he said, Carlson says (on tape) that he “can’t believe last night.” On June 13th [the previous evening], the Planning Committee had denied Carlson’s request for rezoning. The next day, when Carlson and Zimmermann met, it was clear that Carlson “wasn’t referring to the Twins”: he was referring to the Planning meeting decision.

Zimmermann was not entrapped, Docherty argued. He was “presented with the apple, but Zimmermann took it and bit.” He took the $5000 and spent it on himself; he took the $1000, he took the $1200 and never handed it back. When Carlson deliberately asked what he got for his $5000, Zimmermann told him. He lied to the FBI, and he did so because he knew he was guilty.

Docherty then told the jury, “if you believe the defendant committed these crimes beyond a reasonable doubt, then your verdict is fair, just, and right.” He urged them to find Zimmermann guilt on count 1, guilty on count 2, guilty on count 3, and guilty on count 4.

Judge Montgomery then turned to the jury and told them that they’d have lunch provided at the court’s expense in the cafeteria downstairs. She said the court would reconvene at 1:00 and the jury members would be given their final instructions at that point. The court would recess until then; once the jury reconvened, the doors to the courtroom would be locked while the jury received instructions.

[Note: I’m certain that I missed some of the instructions here. In some cases, the judge was reading from pre-prepared text; in others, she seemed to be providing her own instructions.]

Once the jury re-entered the courtroom at 1:00, Montgomery explained that it was her duty to give the jury instructions in the applicable laws. These instructions should guide them during their deliberations. She said the instructions were provided in writing for them now, but they were no more and no less important than the earlier instructions they had received orally.

The court security officers locked the doors.

She urged the jury to follow the law and to apply the rules of law to the facts presented during the trial. She said if there were any differences between the counsel’s interpretation and the prosecution’s, they should use the law. Don’t concern yourselves, she told them, with the wisdom of the law: base your decisions on the law itself (she said it was a violation to base their decision on anything other than the evidence).

She explained that Zimmermann had entered a plea of not guilty on all counts.

She told the jury not to be persuaded by parties involved in the case or by public opinion. Instead, they should apply the rules of law that were being given to them.

She told them to consider the evidence presented in the same way as other testimony: consider and evaluate the evidence in light of common knowledge and the tendencies of human beings. She said if they believed the defendant was innocent beyond a reasonable doubt, they should say so. By the same token, if they believed the defendant was guilt beyond a reasonable doubt, they should say so.

She said the law required that the government bear the burden of proof beyond a reasonable doubt. She urged the jury to consider all exhibits, witnesses, and facts, regardless of whether they were presented or called by the prosecution or by the defense. She said the jury members were the sole judges of facts; anything that was stricken from the record should be disregarded; she also told them to disregard anything they had heard outside the courtroom. She said they were not limited to the “bald” statements of the witnesses: they could draw from the facts their own reasonable inferences (she said they should let reason and commonsense lead them in drawing their conclusions).

She told them to use both direct evidence (in which the person had actual knowledge) and circumstantial evidence in drawing their conclusions. She said the law made no distinctions, nor is a greater amount of certainty required. [I’d urge readers to consult the transcripts regarding this paragraph; I’m not a lawyer, and I’m not sure I’ve reported this part of the judge’s instructions accurately.]

She told them if the references to the Exhibits were different than their memory, they should trust their recall. She said the questions asked by the lawyers were not evidence; only the answers could be considered evidence.

She then said any charts or summaries used during the trial were designed for convenience; they were not facts, and the jury should disregard them if their memory of the facts was different.

She told them to disregard anything that was not directly relevant to the charges of the indictment. She explained some facts that emerged from the grand jury indictment:

  1. Zimmermann was an elected member of the Minneapolis City Council, representing the 6th Ward. He was also a member of the Zoning and Planning Committee; because the City Council approved any of their decisions, his actions on that committee were done as an agent of the City;
  2. Minneapolis is a local government; in 2005, the city had accepted at least $10,000 in federal aid;
  3. PRG is a nonprofit developer of low-income housing;
  4. Chicago Commons is a condo and retail development in the 8th Ward; the development is located across from the 6th Ward.

She then laid out the four counts Zimmermann was charged with [I didn’t get this stuff down verbatim; for the value attached to each count, please consult the prosecuting attorney’s comments earlier today]:

(1) On June 14th, 2005, Zimmermann knowingly and corruptly solicited and demanded something of value ($5000) as a reward for doing city business. In this case, it was a zoning application. She said this was a violation of title 18, section 666 (I think that same title was cited as applicable to the other counts as well).

(2) On August 15th, 2005, Zimmermann knowingly and corruptly solicited…$1200 with the idea of being rewarded for something of value.

(3) On August 31st, 2005, Zimmermann…solicited…$1000 with intent to be influenced or rewarded…

(4) On or about October 19, 2004, in an email response to PRG’s request he sign Certificates of Completion, Zimmermann asked for a retaining wall on the property of his partner. When PRG refused, he asked for the materials. So this charge contained the same language about “knowingly and corruptly,” but this time the charge relates to the retaining wall and not cash. The value, I think, was attached to the townhomes.

[I think she added something in here about considering the dates to be “reasonably near” but not necessarily precise.]

The judge reiterated that Zimmermann had pled not guilty to all four counts. She explained that a defendant begins a trial with the presumption of innocence. The prosecution must prove each essential element relating to the charges.

She then read off the text of Title 18 section 666. I couldn’t catch all of it, but here’s a link if anyone is interested in the full text: http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=666

She said there were 5 elements of the charges:

(1) Was Zimmermann an agent of the city of Minneapolis?

(2) Did Minneapolis receive at least $10,000 in federal money in 2005?

(3) Did Zimmermann knowingly and corruptly solicit or demand something of value in exchange for doing the city’s business in each of the following charges:

(a) The $5000

(b) The $1200

(c) The $1000

(d) The retaining wall

(4) Did he intend to be rewarded for a transaction or series of transactions conducted as part of city business?

(5) In doing so, did he act corruptly? The judge said something here about “voluntarily and deliberately,” and she said something about a motive (hope or expectation of financial gain to himself or another). She defined “knowingly” as realizing what he was doing; not being ignorant. She said willfully meant knowingly performing an act, and she said a thing of value could be tangible or intangible. (I think she added something here about “exercising control over how money is spent,” too, but I didn’t capture it.)

She told the jury not to convict if they didn’t find him guilty beyond a reasonable doubt.

She then urged the jury to consider each charge separately, adding that “intent” or “knowledge” need not be scrutinized directly. She said they may consider the circumstances in determining intent.

She then addressed the issue of entrapment, saying that if the jury believed Zimmermann had been entrapped, they must find him not guilty of the charges. She defined entrapment as not showing intent or disposition but persuaded by officers or agents.

She said defendants are presumed innocent: indictments are not evidence of wrongdoing. The evidence had been presented during the trial. She said presumption of innocence alone is enough to acquit; the defendant is not required to produce evidence of his innocence.

She then explained what “reasonable doubt” meant, saying it was not a shadow of a doubt. She said unless the government had proven the charges beyond a reasonable doubt, they must find the defendant not guilty of the charges.

She then told them that they could consider the opinions of expert witnesses, but not the opinions of other kinds of witnesses. Unless the witness’s opinion was based on education or experience, they may disregard it as opinion.

She reminded them that they were the sole judges of the facts and should judge the credibility of each witness: they may believe all, part, or none of each witness’s testimony. She instructed them to scrutinize the testimony and consider the circumstances (whether each witness was worthy enough to believe). She told them to consider whether the witness had an accurate memory or recollection of events and the extent to which their testimony was contradicted by that of others.

The judge repeated what she had said on the first day of the trial: two or more people witnessing an event may see things differently. The jury members had to decide whether any discrepancies were important or insignificant; whether the discrepancy was intentional or even a falsehood. She urged them to attach “weight” to the testimony of each witness based on that.

She said a witness could be discredited or impeached as inconsistent or contradictory, but it was the sole province of the jury to determine credibility of testimony. If proven false, they could reject all that witness’s testimony or only part.

She said that when a witness made a statement before the trial that was later shown to be false, the jury must use that in determining whether the person was in fact guilty of the charges.

She said they must exercise their collective judgment and their decision must be unanimous. Each jury member had to decide for him/herself, and they shouldn’t hesitate to re-examine the facts, but don’t surrender to the opinion of others just because they desire to arrive at an opinion.

She added that nothing she had said was intended to shape the verdict of the jury. She said the verdict was their exclusive responsibility.

The punishment, however, was the province of the court and should never be considered by the jury. She explained that once they arrived at a verdict, the foreman would read a statement, “we the jury find the defendant” guilty or not guilty. Each count would be read separately.

She said when they reached a unanimous decision, they would each be asked to sign the document(s). Any communication with the court while the jury deliberated had to be done in writing and given to court security. Likewise, they must not communicate with others. They were not to reveal how the jury stood until they reached a unanimous verdict.

She then told them to bear their responsibilities courageously and without fear, and to remember that they were neither partisans nor advocates but “tryers” of the facts.

Judge Montgomery then swore in the court security officers and released the alternates. She told the jury she would provide a DVD player for them and hoped one of them knew how to use it if they wanted to do so.

The jury left to begin its deliberations at around 1:45pm.

Saturday, August 12, 2006

Notes from the Zimmermann Trial--Day 7

Notes from the Zimmermann trial

Here’s the usual cautionary note from the author, Liz McLemore: despite the length and detail of these notes, I’m certain that I’ve missed portions of the testimony. I’d advise anyone interested in details to consult the tapes and transcripts once they’re released. These are notes, not transcripts.

Once again, I’ve inserted my comments within square brackets [ ] throughout the text.

Day 7: Tuesday, August 8, 2006

The day began as Zimmermann again took the stand in his own defense.

The defense attorney, Dan Scott, returned to the line of questioning he had ended with on Monday. Scott mentioned that Carlson had requested that his zoning agenda item be moved up, from July 14th to June 23rd, but the meeting took place as planned on July 14th. The item was placed on the consent agenda; since Zimmermann had arrived late, he was not present for the vote. Scott asked Zimmermann why he was late that day and why he didn’t make a motion to return to the item or discuss it; Zimmermann said he couldn’t remember why he was late, and he said he had no “coherent reason” to request that the Zoning and Planning committee return to the item for discussion.

Scott asked Zimmermann what happened a few days later, and Zimmermann said he told Carlson he didn’t have a plan [for what to do now that Carlson’s zoning request had been denied]; Zimmermann said he wasn’t completely blunt with Carlson on this point because he always tried “to let people down easy.”

On July 23rd, the full Council met and Zimmermann voted not to give Carlson his zoning (once again, the item was on the consent agenda). Scott asked him if he had spoken to Lilligren about the item, and Zimmermann said he had done so right before the meeting; Lilligren’s response, Zimmermann said, was to shrug (Zimmermann pointed out that Lilligren had denied on the witness stand that Zimmermann had spoken to him about the issue). Zimmermann said the vote effectively ended the issue; he said he could have gone to the mayor at that point, but he added that he wasn’t about to do that.

Scott then turned his questions to the meeting with Carlson at the Baja on June 14th. Scott asked him if he expected Carlson to come through with his donation to the redistricting suit; Zimmermann said “not really,” adding that only about 10% of people come through with their promises of donations to the campaign. In response to Scott’s questions, Zimmermann said he wasn’t expecting cash—“absolutely not”—but thought Carlson would give him a check. At some point Zimmermann said he counted the money, and it was $5000.

Zimmermann said that he told Tom Taylor about the money at a wedding a few days later; he also said he had tried to call Shoemaker. Scott said to Zimmermann, “so you were going to call others [about the donation],” but the prosecuting attorney objected to this question. The judge sustained the objection; Zimmermann then said he had called Leventhal and they discussed the money. Zimmermann told Leventhal he had spoken with Tom Taylor and Travis Lee, and they thought it was a good idea to hang onto the money in case there were court costs from the city. Zimmermann said Leventhal wasn’t happy that the “whole thing” [the entire $5000] wasn’t going to him to pay legal costs. The defense then asked Zimmermann if he intended to do anything with that money, and he said no; he said he stuck it in a file folder in his disheveled office. Scott asked him if he was planning to keep the cash until the lawsuit was over, and Zimmermann said no, adding that he was trying to keep it until there was a mechanism in place to pass it on (because FREE’s bank account was no longer in existence, he said, and Tom Taylor had told him to wait until Bruce Shoemaker returned).

Scott asked Zimmermann if he started using the cash, and Zimmermann acknowledged that he’d used it for “everyday” expenses. He said he had previously gone to the ATM for cash, but now he didn’t need to do so. Scott asked if he had made a determination to place $5000 back in the FREE account: Zimmermann said he planned to transfer his balance and then draw from a low-interest credit card account so he wouldn’t have to pay interest on the money for a year. Zimmermann explained that he almost always carries a balance over from month to month; he said when an offer came in around June 14th or 18th for no interest for a year, he used one of the credit card checks to write a check to FREE.

The defense then presented Exhibit 39, a promotional offer of 0% interest from the Bank of America; there were three checks on the Exhibit, and the third had been filled out. VOID was written on it in two places in Zimmermann’s handwriting; the date read “July 19th,” and the subject line mentioned Carlson’s name and the redistricting suit. When questioned, Zimmermann said he had written the check on July 19th.

The prosecuting attorney then spoke to Zimmermann, explaining that in criminal trials, the prosecution and defense share evidence. This particular piece of evidence, Exhibit 39, was presented to the prosecution at approximately 8:00am yesterday—after the government had rested its case. Zimmermann said he had just found the check at his house the previous weekend.

At this point, the judge dismissed the jury for a short time. Once the jury left the room, Docherty objected to the admissibility of Exhibit 39, saying it violated government Rule 16. He explained that Scott had given it to the U.S. attorney’s office at 8am on Monday, adding that the obligation to present evidence earlier in the trial was on the defense’s side. He said the defense was violating the reciprocal discovery agreement filed last year, and presenting the Exhibit at this late date was a violation of Rule 16 [I believe section d2c was mentioned at this time.] Docherty explained that it was too late to follow up and subpoena additional records.

Judge Montgomery asked Docherty what forensic analysis he would have conducted, if he had received the documents in time. Docherty didn’t really answer; both the prosecution and the judge agreed that the authenticity of the handwriting wasn’t likely an issue.

Scott then replied to Docherty’s objection by explaining that Rule 16 simply says that when you get evidence, you turn it over; he said evidence could keep coming in, so discovery is the norm in criminal cases. He said the relevant issues were (1) when the party obtains the evidence; and (2) when they intend to use it. Scott said Zimmermann didn’t find the check until last Saturday—the defense thought it had been destroyed—and he had delivered it to Scott on Sunday. He said it was clear they’d seek its admissibility: even though it did not relate directly to what Zimmermann was charged with, he said it was important in terms of the “passion and prejudice” of the jury.

He went on to claim that the check itself should not make a difference in the case; the government had emphasized it [the issue of whether or not Zimmermann had attempted to give FREE the money] because they believed it might appeal to the jury, so Zimmermann kept searching for the check over the weekend. [The indictment was based on whether money was being given in exchange for city business.] Scott explained that the same situation applied to Exhibit 40, a set of Bank of America checks that included a copy of a check to Shoemaker for $6000 dated November 2005. He said it was not Rule 16 evidence until the government made a case, adding that it really wasn’t an issue until Bisswurm had testified on Friday.

Judge Montgomery overruled the prosecution’s objections and allowed for admissibility, arguing for the credibility of late discovery. She said the “remedy” outlined in Rule 16 wasn’t just exclusion of evidence, but part B of the remedy was to allow a full range of cross-examination [of Zimmermann], which she said she would permit.

At around 10:05 the jury returned and Scott continued his questioning of Zimmermann. The judge received Exhibit 39 as admissible evidence.

Scott projected the top part of Exhibit 39 on the screens for the jury. Zimmermann explained that he often received such credit card offers, and would sometimes write a check using them when the interest rate was sufficiently low (below 12 or 14%, as opposed to 20% interest). Zimmermann said he “saves this stuff,” adding that he saves all his records, but that they’re not exactly organized—just “generally” so. He said he keeps these records upstairs in his home office, in the bedroom, which has an “open design.”

Check numbers #6024 and #6025 were shown; the defense then showed #6026, the last check in the group: it was dated July 19th, 2005, and was addressed to FREE (the subject line at the bottom referred to a donation from Gary Carlson). VOID is written in two places, in blue ink.

Zimmermann said the check was never cashed; the offer was good only until August 31st, so the expiration date expired before the check was cashed. Check #6026 was a bit tattered, and it appeared to have been detached from the other two; when asked why it was not in “pristine condition,” Zimmermann said it was in the file. He then changed his mind and said no, it was in his billfold, adding that he had carried it around awhile to give to Tom Taylor when he saw him. Taylor apparently came over to Zimmermann’s house that summer to work on the campaign; at that time, Zimmermann said he tried to give the check to Taylor, but Taylor wouldn’t accept it. Zimmermann said after a certain point it became clear to him that the check wasn’t going to be cashed. In response to questioning, he said he wrote “Gary Carlson” on the subject line so he’d know what the check was intended for.

The defense attorney then pointed out that the check was a credit card check, indicating Zimmermann was moving credit around. He asked Zimmermann if he had written a check to Shoemaker for the money he had received from Carlson, and he said yes, but it was written after the FBI had searched the house and Shoemaker had returned to town. Scott asked Zimmermann if he had done the same thing [as he did with the previous check addressed to FREE], and he said yes.

The defense then presented Exhibit 40, a series of three Bank of America checks. Once again, this group was part of a promotional offer that expired in December 2005. Check #7208, at the top, was the one Zimmermann said he wrote to Shoemaker, dated November 16, 2005 (after the FBI search and the election). This check was addressed directly to Shoemaker for $6000 [Zimmermann explained that after 9/11, it was much harder to establish a new bank account for FREE]. Zimmermann explained that the $6,000 was to cover Carlson’s donations of $5000 and $1000. The subject line read “redistricting lawsuit fund.” Like the previous exhibit, Zimmermann said he had found this check over the weekend. [I’m not certain of this, but I vaguely remember this check as being a copy; if I remember correctly (and I may not), Shoemaker actually cashed the “real” check. Once again, I’d urge readers to consult a transcript for accuracy on this point.]

Scott then turned his questioning to the issue of the proposed new Somali mall, explaining that Carlson had taken Zimmermann’s suggestion and then said he’d help get the mall. It was Zimmermann, he said, who had first suggested the idea when he and Carlson met at the Baja. Carlson’s part, Zimmermann said, was to do the development with the idea that the Somalis would eventually own the mall themselves rather than him or Sabri. Carlson was trying to “sell” Zimmermann on the idea, saying the latter would look like a hero. Scott suggested the idea actually made sense, since alleviating traffic would make Zimmermann’s constituents happy.

Zimmermann said he shared ideas for a location with Carlson (Cedar Box, Sherman Associates, etc). Zimmermann didn’t take Carlson to see the Roof Depot location, but told him it was a big warehouse [I think they said it was an old Sears warehouse on 28th]. He said it was a better location than the Village Market because it wasn’t in a residential area (there were already two Somali markets in the 6th Ward: Karmel at Lake and Pillsbury/Pleasant, and the Village Market). In response to questions from Scott, Zimmermann explained that he never thought the Village Market would close; he thought Carlson was making a legitimate proposal. Zimmermann said he knew Mohammed Mohammed, and since Carlson kept invoking his name, Zimmermann thought the idea was legitimate. Carlson’s motive as conveyed to Zimmermann was to reduced crime around the Village Market; Carlson said he thought he could actually close the Village Market by diverting business to the new market, but Zimmermann said that didn’t seem likely to him.

Scott then turned his attention to the $1200 Carlson gave Zimmermann in campaign envelopes bearing fake Somali names. Zimmermann explained that the envelopes were given to him almost as an afterthought, at the end of their meeting [I believe this occurred at the light rail station on August 15th]. Zimmermann said he assumed they were campaign donations, but he had no interest in looking at the names at the time; he said he didn’t really think about whether they were in Carlson’s name. Scott asked him when he had a chance to look at them; Zimmermann said he wasn’t sure, but he did eventually get around to it. He said he saw the cash, and some of the handwriting on the envelopes seemed to be the same, but one looked different. He said none of the envelopes bore Carlson’s name. Zimmermann said he “hung on to them,” adding that he didn’t want to give them to his treasurer until he was sure it wouldn’t require extra work for him [the treasurer, Dastych].

At the August 31st meeting at Zimmermann’s house to discuss the new mall, Carlson handed Zimmermann a campaign envelope. Zimmermann said he didn’t know what was in it, but he put the envelope (containing the money) on the table; he said he didn’t remember what Carlson had said the money was for. Zimmermann then said the FBI had played a tape of that meeting for him on September 8th, so he had had his memory refreshed about what Carlson had said. The tape, Zimmermann said, showed Carlson telling Zimmermann the money was from the Somalis he had spoken to (Zimmermann said he hadn’t remembered this detail when the FBI first confronted him). Zimmermann explained that in November, he had given the $1000 from Carlson to the redistricting suit, saying there was no name on the envelope when he had received it.

Scott then went back to the $1200 given to Zimmermann on August 15th: in response to questioning, Zimmermann asserted that the money was not given to him in exchange for anything he did or was going to do; he said the same was true of the $1000.

On September 8th, Zimmermann believed he would be attending a meeting between himself, Carlson, and the disgruntled merchants who wanted to explore the idea of a new Somali market. Scott asked Zimmermann if they had narrowed down the options to the Depot site, and Zimmermann said he wasn’t sure. Zimmermann said he was anxious to hear their stories first-hand; instead, Carlson was hustled off and no merchants arrived. Zimmermann said he didn’t expect the subsequent interview with the FBI.

In response to Scott’s questions, Zimmermann admitted he had at first lied to the FBI about receiving the $5000, saying he panicked and was caught by surprise. Scott asked if he was nervous at the time, and Zimmermann said yes. He said he wasn’t sure if the FBI had said at first that the $5000 was illegal. Zimmermann eventually told them about the $5000, agreeing that it “didn’t look good” that he had spent all of that cash. He said he didn’t think the money for the redistricting lawsuit was illegal at the time, and he didn’t think he got money in exchange for doing anything for Carlson. The FBI agents told him that Carlson had said he was giving the money in exchange for Zimmermann’s efforts; Zimmermann said he had insisted that neither the $5000 nor the $1000 had been given in exchange for anything he would do.

The court recessed for about 15 minutes.

When the jury returned, the prosecution began its cross-examination of Zimmermann.

Prosecution’s cross-examination of the witness, Gary Dean Zimmermann (defendant)

Docherty turned to the events of late 2005, saying Zimmermann had a number of different credit cards and owed about $38,000 [note: this may have been $35,000]—on a salary of $65,000 per year. Zimmermann asserted this was true, saying the City Council members’ salary was “more now.” Earlier in the year, in February, Zimmermann and his wife had bought property: they mortgaged their property on 17th “up to here” and used that to buy property in the new 6th Ward, which they then refinanced to buy another house. Docherty said they didn’t have much equity in any of them; in fact, in December of 2004, Zimmermann had had to borrow $10,000 from a friend (Zimmermann asserted this was true). Upon closing, Zimmermann borrowed another $8000; he said he didn’t remember the exact dates but thought he had given back the $10,000 by then.

Docherty asked if Zimmermann had received $1000 in cash on August 31st, and he said yes. He said the FBI tape showed that Zimmermann had put the money on the table and covered it up with a PDA [Zimmermann corrected him—or perhaps Docherty corrected himself--saying it was a cell phone]. Carlson told him, “you can fill in the name later,” and Zimmermann had said “ok.” Carlson had replied, “that’s for getting us that zoning.”

Docherty then showed a portion of the August 31st tape, with Carlson saying “one thing I’m going to need….[and later] that’s for getting us that zoning over there.” Zimmermann replied, “so…alright.”

Docherty then turned to the events of August 15th at the Franklin Avenue light rail station, where Zimmermann had accepted the four envelopes. Zimmermann said he had suspicions about the names on the envelopes, so he had hung onto them [rather than giving them to his campaign treasurer]. Docherty said something like the following: so on September 8th, they had been sitting in the drawer about three weeks, but you [Zimmermann] had done nothing to check on the legitimacy of the envelopes. Zimmermann agreed when Docherty said people don’t always fill in all the data, so Dastych [the treasurer] occasionally had to follow up. But Zimmermann had never asked him to check into these particular donations.

Docherty then said, “Despite these reservations, you took another $1000 in another envelope—this time with no name, and you were told to fill in the name.” [Zimmermann did not contradict him.] Docherty then said something about the $1000 not being divisible by 300, the maximum amount allowed by law that an individual could contribute to a campaign. He said, “you know that’s the maximum,” and Zimmermann said yes. Docherty then said, “so if you were not surprised that the Franklin Avenue money was divisible, didn’t the $1000 seem even phonier looking?” Zimmermann said no.

The prosecuting attorney then asked him if the money was for the redistricting, and Zimmermann said “correct.” Docherty asked him if he had spent the whole $6000; Zimmermann said no, and Docherty explained that indeed the FBI agents had found $300 left in the envelope. He then asked Zimmermann if he was in the process of spending that $1000, and he said yes, he was spending the stash of cash. Docherty asked, “so when the $300 from that $1000 was gone, you were going to check on its legitimacy?” [I‘m afraid I didn’t record Zimmermann’s answer here.]

Docherty suggested that Zimmermann was in the middle of a campaign and therefore could have used the $1200. Zimmermann said yes, adding that although there was no cash flow problem [in the campaign] at that point, he could of course have used a legitimate campaign donation. The prosecutor then asked, “so for three weeks, there was no effort to check on the legitimacy [of that money]?” Zimmermann replied no, saying he didn’t bother Dastych about it.

Docherty continued to press Zimmermann about the $1200 on August 15th, saying that the purpose of that meeting was to look at sites for the alternate mall. He said the tape showed Carlson frequently bringing up business, talking about the zoning. Zimmermann said, “he babbled on and on, and I let him.” Docherty asked Zimmermann, “when Carlson asked whose Ward the Cedar Box company was in, you understood it was important to him [that the site be in Zimmermann’s ward]?” Zimmermann said yes, adding that it was easier to get a project through. The prosecutor then said something about that being because of “aldermanic courtesy,” and Zimmermann replied that although the Cedar Box company was in his Ward at the time, it was moved out under redistricting [so it wouldn’t stay in Ward 6].

The prosecutor then referred to the September 8th meeting with the FBI, where Zimmermann was interviewed for about two and a half hours. He reminded Zimmermann that the agents had asked if he needed anything to drink, or needed to use the bathroom, adding that he was free to leave at any time.

Docherty asked him about why he had lied at first to the FBI. Zimmermann said he was “panicked”; this panic was “transitory,” and he added that he later recovered his composure. He said he knew people to say untrue things when they were in a “state of panic.” Docherty asked him if people said such things deliberately. Zimmermann said, “well, when someone is panicked or perhaps if they were drunk,” they might say things that were not true. Docherty asked him what he meant by “drunk.” Zimmermann said he just meant that what people say when they’re not in their normal state of mind, for example, when they are drunk, might not be true. The prosecuting attorney then asked him, “you weren’t drunk?” and Zimmermann replied, “no, panicked.”

The prosecutor then asked Zimmermann what he thought a lie was, and Zimmermann said, “A lie would be something like your opening statement to the jury.” [I think the defense said something at this point, but I didn’t catch it.] A very angry prosecutor objected to Zimmermann’s statement, saying it was “argumentative and uncalled for.” The judge sustained his objection and asked Zimmermann to limit himself to answering the questions.

Docherty then displayed a portion of the transcript (page 9) of Zimmermann’s interview with the FBI. Zimmermann is cited as saying he told Carlson to send the money [the $5000] to Larry Leventhal, adding “that’s where it is.” The prosecutor said those were lies, weren’t they? Zimmermann replied by saying he had an incorrect memory, saying he had told other people to send money directly to Leventhal; he had just confused Carlson with someone else. Docherty stated, “so you weren’t panicked but confused.” Zimmermann said yes.

The prosecutor then asked Zimmermann if $5000 contributions to FREE were unusual. Zimmermann said they had received contributions in that amount a few times, but not often. Docherty then referred to the fact that Zimmermann had told the FBI that the money was at Leventhal’s, and Zimmermann said he wasn’t sure why he had said that. Zimmermann said the actual dollar bills weren’t there, but the money was tied up in his line of credit. Zimmermann said that when he had said “that’s where it is” to the FBI, what he meant was that’s where the money was going. At this point, Zimmermann said he needed to re-read the documents in front of him [I’m assuming these are the transcripts]; he also complained about the reflection of the lights in the courtroom.

Docherty projected page 19 of the transcript of Zimmermann’s interview with the FBI. Page 19 shows Agent Bisswurm asking Zimmermann where the $5000 is, and Zimmermann at first says he doesn’t know what $5000 he’s talking about. A bit later, Zimmermann says he knew, adding that Carlson had said he was going to contribute [to the campaign] but didn’t.

Docherty then asked Zimmermann about these statements; Zimmermann said he knew if he didn’t reveal much to the FBI, they’d show him another tape. Zimmermann explained that his lie was the result of panic, not a calculated lie. He then shot back at the prosecutor, “some people script their lies.” This time the prosecutor ignored Zimmermann’s comment and continued with his line of questioning.

Docherty said to Zimmermann, “so you lied when you said he [Carlson] hadn’t given the money to you…” Zimmermann said it was “not a white lie, a lie of kindness, but not a calculated lie, either.”

The prosecutor turned back to the portion of the transcript in which Zimmermann is quoted as saying to the FBI that he hadn’t seen that $5000. Docherty said to Zimmermann, “when asked, you said Carlson hadn’t given you the $5000.” Zimmermann explained that Carlson was contributing to the lawsuit through him [Zimmermann], so the money didn’t really go to Zimmermann.

Docherty showed page 20 of the FBI transcript, with Zimmermann saying he gave Carlson Leventhal’s name. Docherty asked, “you didn’t really give him Leventhal’s name, did you?” and Zimmermann repeated that he had confused Carlson with another contributor.

Docherty then displayed page 22 of the transcript: Agent Bisswurm is asking Zimmermann if he had received any other cash from Carlson. Zimmermann repeatedly says no. The prosecutor asked Zimmermann, “were you planning to hold out?” and Zimmermann said, “I wanted to see what they had.” Docherty then asked, “you did all this calculating while you were in a state of panic?” and Zimmermann answered yes. Docherty fired back at him, “when did it [the panic] pass?” Zimmermann said “it subsided.”

Docherty projected page 26 of the transcript. In the interview with the FBI, Zimmermann is quoted as saying he’s in the process of forwarding the money to Leventhal. The prosecuting attorney said, “after seeing the tape, you’re telling [the FBI] a different story.” Zimmermann explained that his line of reasoning was a little askew, and he admitted that at that point in the interview, he was telling part of the truth, that the money “existed.” The prosecutor said, “it was the videotape that did that.” Zimmermann explained that the money was at home in his desk, adding that what he had said wasn’t a lie in the sense that the money was tied up in bookkeeping and in his line of credit at home.

Docherty then said, “but the $5000 cash isn’t [in his desk at home at that point].” He continued, saying to Zimmermann, “if you spent cash at a convenience store, the money still exists—even though you’ve spent it.” Zimmermann said some of the cash was still there—a few hundred dollars and the envelopes [containing $1200]. He said the remaining cash was in a separate place; the $1200 was in his desk drawer, but the cash was in a different file folder under his desk table.

The prosecutor pointed out that Zimmermann had told the FBI that all $5000 in cash was in his desk drawer. Zimmermann admitted that the cash itself, the $5000, was not there. The prosecutor said, “so you meant that you could produced that money in a line of credit?” By way of example, Zimmermann said it was much like when you went to a restaurant with a bunch of people, and they gave you cash and checks and you put the entire bill on your credit card, put the cash in your pocket, and spent it. He said, “that’s what I was doing here; when the time came, I’d write a check.” Zimmermann added, “I said it was all there, in that I was prepared to pay the bill when it’s time to pay it.”

Zimmermann then said that “in retrospect,” it was true that he was confused when he said he told Carlson to send the money directly to Leventhal.

Docherty then referred to the $5000 at the Baja, the $1200 in envelopes at the light rail station, and the $1000 at Zimmermann’s home on August 31st. He said to Zimmermann, “you’d admitted to the $5000 and to the $1200 [by this point in the FBI interview]. Did the videotapes help you with your panic?” Zimmermann said he didn’t know, that he wasn’t a psychologist. The prosecutor then said “let’s look at the facts: before you saw the tape, you denied getting the $5000. But after the tape, you admit to it. So surprise, your panic is over. So then Agent Kukura asked if you’re sure there was no more money.” Zimmermann interjected, “that’s not what he asked me. You’re misconstruing what I said.” [I think Docherty objected to Zimmermann’s comment as argumentative; this time Judge Montgomery overruled the objection.]

The prosecutor then said Zimmermann had claimed to receive no money other than the $1200, then admitted to receiving the $5000 [remember, he’s reviewing the taped interview with the FBI]. Docherty showed a portion of the transcript again; the FBI agent is asking Zimmermann if “there’s any other money you want to admit to receiving?” Docherty asked Zimmermann to explain. Zimmermann replied, “Why would I want to admit to more? The agent is asking if there’s any money I want to admit to receiving, and I said no—I didn’t want to admit to receiving the $5000!”

The judge decided it was a good time for all of us to stretch a minute.

[I think at this point, the prosecutor said something about Zimmermann playing word games in order to dodge the truth.]

Docherty projected page 38 of the transcript. Bisswurm is asking Zimmermann, “so the $5000 is still in the drawer”? Zimmermann replies “um hmm.” [Zimmermann then said something about all $5000 being there, but I didn’t catch the wording.] Bisswurm then says, “I’m going to ask you if Carlson gave you any other money.” After seeing the tape [during the FBI interview], Zimmermann admits to receiving $1000 in envelopes with no name, saying that because there were no names, there was “nothing we could do with it.” Docherty played the tape showing Zimmermann putting his cell phone on top of the envelope containing $1000; right before this, Carlson had said, “that’s for getting us that zoning.”

Docherty continued showing the transcript of the FBI meeting, focusing on a section in which Zimmermann is saying the money is still at home. The prosecutor asked him what he meant. Zimmermann replied, “I could get the money using my credit card, borrow it from a friend—I have a business, so money goes in, money goes out.” The prosecutor says, “so you’re not talking about the 10 $100 bills you received on August 31st.”

The prosecutor continued showing the transcript of the FBI meeting. Bisswurm is asking Zimmermann, “is the money in the same desk as all the rest?” Zimmermann says “I think so, in a green envelope.” The prosecutor pointed out that the money wasn’t there—not the original $1000 in the green envelope—“that was spent.” Zimmermann said something about Carlson saying he’d get back to him about that [Carlson had told him to fill in the names himself, saying he’d get back to Zimmermann later].

At another point in the transcript, Bisswurm asks Zimmermann “is the $5000 all still there? The same $5000?” Zimmermann finally says no, adding that he guesses it’s been enrolled in his finances.

On the witness stand, Zimmermann explained how hard the idea [of what happened to the money] was to get across. The prosecutor reminded him that he had at first denied getting the $5000, then said it was all in his desk drawer. He said the agents weren’t “quick” because they “didn’t grasp that you weren’t referring to actual cash.” He then asked Zimmermann, “you lied to the agents during the interview, didn’t you?” Zimmermann replied “that’s correct.”

Docherty then asked him, “Didn’t you lie to the agents at least 10 times?” Zimmermann said he didn’t know, didn’t count. The prosecutor numbers them off for him: (1) Zimmermann said he had told Carlson to send the money to Leventhal; (2) He told the agents he didn’t know what $5000 they were talking about; (3) He said he gave Carlson Leventhal’s name; (4) He said he didn’t receive the $5000; (5) He said he got the $5000 but had sent it to Leventhal; (6) He said he had the money, and it was all at home; (7) He said it was enrolled in his finances. (At this point, Zimmermann interjected, “Which it was.”); (8) He said he hadn’t told Carlson he’d do anything for him. (Again, Zimmermann interjected, saying “that was not a lie”); (9) Zimmermann said that when he received the money at the Baja, he was surprised. [Either I missed one, or the prosecutor got around to discussing only 9.]

The prosecutor followed up on this last item, saying that eight days before, at the Black Forest, Carlson had said he was going to Florida until Monday, but he would meet Zimmermann then and get the money to him. Carlson called on June 14th and said he had the money to give to him, and then he did.

Docherty turned to Zimmermann on the witness stand and said, “you said you were surprised about getting the cash, but you didn’t hand it back or say you’d rather have a check; instead, you put the money in your pants pocket, got something out of your rucksack, and sat down. Carlson and you discussed zoning, parking problems, crime, and licensing issues—and the business at the Village Market?” Zimmermann said he didn’t know. Docherty said, “isn’t all of this official city business?” Zimmermann said these were all issues the developer had to deal with to get his project done. The prosecutor then replied, “but that wasn’t the first time. Aren’t people talking to you about these things because you’re on City Council?” Zimmermann said yes. The prosecutor continued, “you put the money in your pocket. Out of your backpack [he may have said “rucksack”], you got out an email from Heyer about zoning and gave it to Carlson.” Zimmermann said “he happened to throw me the envelope, but there’s no connection between the two.” When the prosecutor said something about Zimmermann putting the money in his pocket with one hand and pulling out the email with the other, Zimmermann corrected him, saying he thought he had performed both actions with the same hand.

Docherty then asked Zimmermann, “didn’t you and the attorney [Leventhal] discuss hanging onto the money to cover costs? The statute of limitations was not yet over on September 8th, 2005. Yet you told the FBI you were in the process of turning the money over to the lawyers.” He pointed out that there was a discrepancy in Zimmermann’s testimony. Docherty continued, “So once again, the agents just didn’t understand the precision of your language?”

The defense objected, and the judge overruled the objection.

At this point, the judge dismissed the jury until 1:30 for lunch.

After the jury returned from lunch, the prosecutor continued to cross-examine Zimmermann. He projected page 58 of the FBI transcript on the screen for the jury. FBI Agent Kukura is asking Zimmermann, “so no bills from your campaign were paid with the money?” Zimmermann says the money was put into a pool to pay the lawyer [I think he mentioned Leventhal’s name here].

Docherty then turned Zimmermann’s attention to events at the light rail station on August 15th. He mentioned that Zimmermann had claimed Carlson was “babbling on.” The prosecutor projected page 16 of the transcript of that meeting, where Carlson is saying “is it possible you could get zoning for that? [referring to the Somali mall] and Zimmermann replies, “yeah….I think it’s [zoned for?] retail.”

Docherty pointed out that while Zimmermann had claimed on the witness stand that Carlson was “babbling,” he thought the discussion was pretty focused. Zimmermann replied, “sometimes he was babbling, sometimes coherent.”

Docherty then showed Exhibit 39, the credit card check for $5000, and explained that the prosecution had just gotten the check yesterday at 8:00, after the prosecution had rested its case. Zimmermann assented, saying he had found the check on Saturday in his office, which was located on the second story of his house. The prosecutor asked him if there were other rooms [on that floor]. Zimmermann said yes, there was a bathroom, a dressing room, a laundry area, a utility room, a bedroom, and offices in the center. Zimmermann explained that he had found the checks in files containing credit card history which were kept in milk crates—on top of files there. The prosecutor asked him if the check had been in that location the whole time, but he had never looked there before. Zimmermann said no, he hadn’t. Docherty replied, “you know this $5000 is the basis for this charge, yet you don’t look for it until last weekend?” Zimmermann replied, “correct,” adding that he found it on Saturday. The prosecutor pointed out that the subject line read “Gary Carlson, donation,” then asked whether a $5000 donation to FREE would be noteworthy. Zimmermann said yes, that otherwise there would be no indication of what the check was for. Docherty pointed out that Zimmermann had also written [on the back?] something about the check being a $5000 donation from Gary Carlson. Zimmermann explained that it was like writing a note out on a check stub; since the check stub was missing, he had written the note there.

Docherty then asked Zimmermann, “so it was good for you to have this check turn up, especially on the day you would testify. When did you make out this check? Last weekend?” Zimmermann replied no, saying he wrote it on whatever date was on the check.

The prosecutor then said, “you told the FBI you were in the process of sending a check to Leventhal (when the time came).” Zimmermann said, “I thought I’d send it when there was a way for it to be received.” Docherty then said, “so you didn’t mean what your bare words indicated. Don’t you think that’s misleading?” Zimmermann said no, adding that he had voided the check and placed it near his desk in the office.

Docherty then referred to the ethics training Zimmermann had received on February 24th, 2004. He cited the section of the videotape about accepting things of value from people seeking zoning, as well as the part of the tape dealing with accepting meals. The prosecutor then referred to the Baja meal, asking Zimmermann if he had accepted $5000 in cash plus a meal. Zimmermann said they [he and Carlson] had split the bill. The prosecutor replied, “leaving three one-dollar bills on the table is splitting the bill?” Zimmermann said he left three bills, but he wasn’t sure if they were ones or fives. The prosecutor said “you left bills on the table because you were concerned?” Zimmermann replied that he wasn’t sure it was $3 he left, adding that he always paid his part of the bill, but he didn’t figure up the amount to the penny.

Docherty showed Government Exhibit 63, a photo showing the alley off 17th Street. He pointed out that there was no retaining wall, but there was none on the other side (the south side) of the alley, either. Zimmermann said that was not part of the trade proposal [with PRG]. The prosecutor said “you have no personal relationship with that person [across the alley], but Ms. Mayo is your former partner.”

Docherty referred to Government Exhibit 1, dated August 22, 2003. He pointed out that there was no mention of a retaining wall in that agreement. Zimmermann said he wasn’t sure and had never seen the agreement. Docherty pointed out that Mayo had received $5000 at closing. He drew the jury’s attention to paragraph 2.5 on page 2 which mentioned the settlement. He then asked Zimmermann what the retaining wall would be worth--$2000-3000? Zimmermann said he had only heard the costs mentioned in this courtroom. The prosecutor then showed Exhibit 2, the email to Wetzel-Mastel, that said Mayo had no money to build her own wall.

Docherty then turned Zimmermann’s attention to the May 20th evening meeting at the Shriners. Zimmermann testified he had no memory of seeing Carlson that night, but he admitted he had seen the Ward card with his home number written at the top of it. Docherty asked him if he had written out the number for Carlson; Zimmermann said he wrote the number out at some point, but didn’t remember when.

Docherty once more brought up the Black Forest fundraiser when Carlson had said “I need your help with a vote,” and Zimmermann replied, “you got it.” Zimmermann said he didn’t remember what vote Carlson was referring to. Docherty shot back, “so you’d say ‘you got it’ is your standard response?” Zimmermann said something about liking to be helpful. The prosecution then said Carlson had mentioned lobbying the Planning Commission, and Zimmermann asked Carlson to send him an email.

At this point Docherty replayed the audiotape for the jury. The prosecution told Zimmermann, “the actions you were going to take sound specific.” Docherty then asked, “Wasn’t it at the Shriners where you learned what this project was about?” Zimmermann said he didn’t know.

Docherty then brought up the issue of cousins, playing the audiotape from the Black Forest. We hear Carlson ask, “what can I do for you,” and Zimmermann respond, “money, money, money.” Carlson refers to their previous conversation at Portland and Franklin and to Zimmermann’s “legal problems.” Zimmermann asks if he means the redistricting lawsuit, and he suggests Carlson donate a token portion of $4,000 or $5,000. Carlson replies, “I’ll take care of that for you,” adding that Zimmermann shouldn’t tell Azzam about it, that it’s only between the two of them. He then asks, “you’ll take care of that vote for me?” and Zimmermann replies, “you got it.”

Later in the tape we hear Zimmermann say “you want to do more, that’s fine,” explaining that although the limit is $300 per person or $600 per couple, Carlson could get a cousin or something to donate, or “give in his name.” Carlson says yeah, you got it, I’ve got several of them [cousins], and he and Zimmermann laugh.

The prosecutor then turns to Zimmermann and asks, “Refresh your memory?” Zimmermann replied that he had suggested that Carlson talk to his family. The prosecutor mentions more talk of cousins and plays a portion of the tape from the Baja. We hear Carlson referring to someone as a “loose cannon” and saying that “we need you to be our Council Member”; shortly after that, Carlson refers to cousins and asks Zimmermann, “how do I do that? You can’t get elected on $300.” Carlson says something about Zimmermann’s Ward being a poor Ward and asking again, “how do I do it?” Carlson says something about the phone book, and Zimmermann suggests he donate cash because “nobody knows or cares.” He then suggested that Carlson write a check to someone for $350 and then have that person write a check to Zimmermann for $300.

The prosecution turned to Zimmermann on the witness stand and said, “you’re suggesting Carlson give people money…the donation is from Carlson, but it’s in someone else’s name.” Docherty continues to play the tape, and we hear Zimmermann say, “just don’t tell me about it.” Docherty then said something about Carlson telling Zimmermann not to tell Azzam about the money. [On tape, Zimmermann had said he wouldn’t say a word.] The prosecutor said, “you consider cash to be sensitive.” Zimmermann said he agreed to be quiet because he thought Carlson didn’t want Azzam to know because Azzam was Carlson’s business partner. Docherty then said, “but the FBI aren’t your business partners, yet you denied receiving the money to them.”

At this point the defense objected, and the judge overruled the objection.

Docherty then turned to the August 3rd meeting at the Chicago Commons sales office, where Carlson had asked why his zoning hadn’t changed even though he had donated $5000. Zimmermann said he didn’t recall that part, so Docherty played the tape for him. We hear Carlson say, “we did the $5000…I know you tried, but you got no support…What happened?” The prosecution pointed out to Zimmermann that he had never tried to disabuse Carlson of the notion that there was a connection between the money Carlson had given him and the zoning Carlson wanted. At no point, he said, did Zimmermann ever tell Carlson that the zoning and the $5000 weren’t related. Docherty asked Zimmermann, “you never say Carlson is mistaken about the connection between the two. The context, with the $5000, didn’t matter?” Zimmermann said he often ignored discussions about money. The prosecution shot back, “when you took the money, were you ignoring it then?” Zimmermann said he didn’t see the link. Zimmermann then said there was no discussion of the $1000, but he acknowledged that at some point Carlson did say “this is for getting the zoning,” adding, “or I believe that’s what he said.”

The prosecution then brought up the issue of the “straw man” candidate, James Gorham. Zimmermann said he didn’t know if Gorham was a campaign worker when he signed up as a candidate. Zimmermann acknowledged that Gorham helped the Zimmermann campaign take people to the polls. The prosecution pointed out that Gorham was not returning calls at that time, so he wasn’t running an active campaign. He reminded Zimmermann that the latter had told Carlson [on tape] that Gorham was a straw man.

Docherty then turned the discussion to whether Zimmermann had actually talked to anyone about Carlson’s zoning. Zimmermann said he was told by Schiff that C2 zoning wasn’t going to help Carlson. From that point, Zimmermann said, he believed Carlson’s zoning request had little or no hope of getting passed. On June 15th, after the Baja meeting, Zimmermann had a conversation with Carlson about Collins’s research: he pointed out that it was the first time Zimmermann had worked on Carlson’s issue. [I think the prosecution is pointing out here that Zimmermann wasn’t motivated to work on Carlson’s issue until after he had received the $5000 from Carlson.]

The judge dismissed the jury for a short recess.

Once the jury returned to the courtroom, the prosecutor turned the discussion back to the Black Forest and Zimmermann’s promise to keep quiet about the money. Docherty asked him if he told Carlson he’d keep the issue quiet “to Azzam and everybody.” Zimmermann said “correct.” Docherty said, “at the Baja, Carlson says be quiet about the monetary exchange—but he didn’t mention Sabri.” Zimmermann acknowledged that to be true.

In response to Docherty’s questions, Zimmermann said he didn’t want to admit to the agents that he had received $5000 and $1000. The prosecutor said, “there’s nothing shameful about raising money for a lawsuit.” Zimmermann said, “it looked like something it wasn’t, and I had pretty much spent all of it.” The prosecution suggested Zimmermann didn’t want to admit it because it was “dirty money.” Zimmermann replied, “no, I didn’t want to talk to the FBI at all.” The prosecutor reminded him that the agents had begun the interview by telling him he was free to leave at any time.

Zimmermann was then turned over to the defense for follow-up questioning. Scott asked about the discussion with Docherty that had occurred about 10 or 15 minutes before the break. At that time, Docherty had asked Zimmermann about the money and his memory of it. Scott asked Zimmermann, “you needed your memory jogged about the fundraiser?” and Zimmermann replied “correct.” Scott presented Exhibit 16 and showed the transcript of the Black Forest meeting. Carlson is joking about Zimmermann’s age, saying that something [I didn’t catch all of this] looks bad for a “39 year old guy,” then follows that comment up immediately with a request for “a minute” of Zimmermann’s time; he then referred to the “vote thing” and zoning. Zimmermann asks, “where are we on that?” saying it slipped his mind. On the tape, the two agree about their assessment of Lilligren (“a pain in the ass”); at that moment, the Zimmermann supporters in the courtroom laughed. The tape continued playing, and we hear Zimmermann saying he “had done a little something on that” [the zoning issue].

Scott stopped the tape and turned to Zimmermann, saying that the prosecutor had reminded him that on June 15th, during a phone call, he said he had spoken to Schiff about the zoning. On June 16th, Carlson had sent an email about the businesses he wanted; Zimmermann and Collins’s notes were on the email (written on or after that date). Scott pointed out that Zimmermann was in fact working on the zoning issue, and that he came to the conclusion after that that he couldn’t get the zoning unless new information turned up.

Scott then showed Exhibit 39, the credit card check for $5000 to FREE dated July 19th, 2005. Zimmermann had said he showed the check to Tom Taylor that summer; it was in existence before Tom came over to Zimmermann’s house. Zimmermann again explained that he had found the check last Saturday; he hadn’t looked for it before that but did so then. Scott asked him if he had been encouraged to look for it, and he said Scott didn’t encourage him, adding that the issue for the lawyers was how he got the $5000, not what he did with it.

Scott then showed Exhibit 40, saying that was also why the fact that the check for $6000 was written six months later wasn’t really relevant. Zimmermann said no, it wasn’t [relevant].

Scott turned Zimmermann’s attention to the meeting at his house on August 31st, when Carlson had given him an envelope containing $1000 in cash and when Carlson had mentioned zoning. Scott asked Zimmermann if the discussion was about zoning or the new Somali mall. Zimmermann said the mall. Scott asked him, “when you got the $1200—what was the purpose of the meeting that day?” Zimmermann said he thought it was the Somali Mall. Scott then asked him, “Did you think either contribution had anything to do with your actions?” Zimmermann said “no, nothing.”

The prosecutor then returned to ask Zimmermann a few more questions. He began by saying, “[Defense attorney] Scott asked if you were able to get what Carlson wanted. By June 15th or 16th, you had come to the conclusion that you weren’t.” Zimmermann said he didn’t think the zoning Carlson wanted would actually get Carlson what he wanted. Docherty said, “you never told Carlson that unless something new came up, you couldn’t help him. You told Carlson that you’d spoken with every Zoning and Planning member, you said you’d checked with Orange, you said there was always room for improvements. You were never concerned the money would then stop flowing if you told him?” Zimmermann said no. Docherty pointed out that part of the discussion about the Somali mall on August 15th was zoning, and on August 31st, when Zimmermann took the money, Carlson had said it was for zoning “over there.”

Both the defense and the prosecution announced they had completed their questioning of Zimmermann. He left the stand and the defense called Agent Bisswurm to testify.

Seventeenth witness (called by the defense): Timothy J. Bisswurm

Scott began his questioning by referring to Bisswurm as “Mr.,” then corrected himself and called him “Agent.” He asked Bisswurm if he was one of the people who had handled the evidence in this case, and Bisswurm said yes. Scott then played a tape: it was the voicemail from Zimmermann to Carlson, admitted as Exhibit 41. The voicemail came from Carlson’s phone [cellphone?] on Friday, May 27th; the time for the message was given as 3:17pm; the agent said he pulled the message off Carlson’s machine at around 1:45pm on June 1st. Scott played the tape for the jury. We hear Zimmermann’s voice saying “I don’t know how I can help you [at 2401 Chicago Avenue South]. They’re taking parking off because the sidewalk is closed—that’s really absurd, that’s what they’re saying, though…I’ll get back to you.” The defense points out that this voicemail message was recorded nine days before Zimmermann and Carlson met at the Black Forest.

The defense rested its case and the judge dismissed the jury for a 15 minute recess.

While the jury was recessed, the attorneys conferred privately with the judge. [sorry, folks, I wasn’t privy to that discussion]

The jury was summoned. Once all members of the jury were seated in the courtroom, Docherty said he had no further evidence. Judge Montgomery announced that the evidentiary phase of the trial was concluded.

The jury was dismissed until 9:30 Wednesday morning, August 9th, 2006.

Once the jury had left, Scott announced that the defense had nothing to add to the trial. He said he wanted to renew Rule 29; Judge Montgomery said she was maintaining the same ruling she had previously, adding that the conditions [for dismissal] were not met.

The attorneys and judge left the courtroom and the trial recessed until 9:30 the next morning.