Tuesday, August 01, 2006

1st Day of Zimmermann Trial

(Posted on behalf of Liz Mclemore)

Caveats of the author, Liz McLemore: these are my notes of the trial, so I’m responsible for the errors here—and there are likely to be some, despite my best efforts. Although I strive to be as accurate as possible, please keep in mind that no two people ever view an event the same way. I’ve tried to indicate my comments and hesitations in square brackets [ ]; my personal perceptions are included in brackets at the end of the document.

As a former member of the Green Party who worked for Council Member Robert Lilligren (Zimmermann’s opponent in his bid for re-election to Ward 6), my accounts of this trial will likely be construed as biased. My hope is that supporters of Zimmermann are publishing their own accounts; people should read many accounts of this trial and decide what they think for themselves.

Notes from the Zimmermann trial

Day 1: Monday, July 31, 2006

Ken Avidor and I biked to the Federal Courthouse downtown after noon today, hoping to arrive after the lunch recess, just in time for opening statements. We arrived at around 1:00, just as jury selection was wrapping up. Two non-European jurors were stricken from the selection process: one was an Asian-American physics professor (apparently her ability to understand English was called into question), and the other was an African-American woman (her response to questions indicated her sister was successfully prosecuted for a federal offense). The defense didn’t challenge the prosecution’s objections, so Zimmerman faces an all-white jury of 8 women and 6 men (2 of these are alternates).

Judge Ann Montgomery recessed for lunch at 1:30.

At 2:30, the judge instructed the jury and the case began in earnest.

The prosecution’s opening statements
The prosecution began its case with the words, “money, money, money” (Dean Zimmermann’s words to an undercover agent at a fundraiser held at the Black Forest Inn on June 6, 2004). The prosecution told the jury that evidence will show that in 2004 and 2005, Zimmermann used his City Council seat for personal gain.

The attorney began the case with the Powderhorn Residents Group (PRG) indictment based on a 2004 incident. According to the prosecution, PRG asked Zimmermann to sign off on the Certificate of Completion for the Franklin Station townhomes, part of a mixed-use development in Phillips called the Village. Two signatures are required; PRG asked Zimmermann to sign and requested that he find a second Council member to sign as well. In an email to the project manager, Zimmermann said the project looked good; in the same email, he asked PRG to build a retaining wall for his former partner, who owned property adjacent to the development. PRG refused; Zimmermann didn’t let it drop; instead, he replied by requesting free materials (valued at $2000-$3000).

Counts 2-4 of the indictment: In 2005, Zimmermann was campaigning for re-election. Gary Carlson, the developer of a property at 24th. and Chicago called Chicago Commons, asked for Zimmermann’s help in a zoning change that would permit more retail space (his argument was that crime had worsened in the area; he believed that more retail would allow potential residents to shop closer to home, thereby making residential property at Chicago Commons more attractive). The City Attorney had turned aside Carlson’s initial efforts. In November of ’04, however, Carlson met Zimmermann at a ground-breaking ceremony where Zimmermann told him of a $100,000 debt incurred by the Green Party as part of an effort to challenge the city’s redistricting. At that time, Zimmermann told Carlson that redistricting had disadvantaged people like Zimmermann.

In May 2005, Carlson and Zimmermann met at a Shriner’s function; Carlson expressed his frustration in getting the zoning change he wanted, and Zimmermann brought up his own need for money. After this event, the FBI had Carlson wired (with a microphone or camera). Audio and video tapes will be shown as part of the court proceedings.

Chicago Commons is not in Zimmermann’s ward, but as a member of the Council’s Zoning and Planning Committee, Zimmermann had some power over zoning outside his ward.

On June 6, 2005, Carlson expressed his need for zoning help at a Zimmermann fundraiser, and asked Zimmermann what he could do. Zimmermann responded with “money, money, money.”

On June 14, 2005, over lunch at a Mexican restaurant on West Bank, Carlson gave Zimmermann $5000 in an envelope. [I did not note this, but it seems that the prosecution suggested that Zimmermann put the money in his pocket at first.] It was here that Zimmermann instructed Carlson in how to use the names of “straw” donors and “third-party” donors.

It was also on this day that Carlson raised the issue of building a new Somali mall, with Carlson as the developer as Zimmermann as the Council member working from the “inside.” (The idea was to divert Somalis away from the nearby Village Market, which Carlson believed was responsible for much of the area’s crime.)

Zimmermann missed the Zoning and Planning meeting to discuss the zoning change Carlson was requesting. The zoning was denied.

On June 22, Zimmermann voted with the majority of the Council in denying Carlson’s zoning application. Carlson confronted him about the $5000 he had paid Zimmermann to secure the zoning change; Zimmermann said the issues weren’t connected. However, on August 15 Carlson gave Zimmermann $1200 and another $1000 on August 31 (payments to secure his help with the proposed Somali mall; all the money was in $100 bills tucked into envelopes).

In September, Zimmermann was confronted by the FBI. At first, Zimmermann claimed he never received the $5000; the FBI responded by playing the videotape of him accepting the money. Zimmermann then said the money was intended for the redistricting lawsuit, then later said he had spent it. He admitted receiving the $1000 payment (the money was never found during the search of Zimmermann’s property); the FBI found the $1200 Zimmermann had accepted.

At this point, the prosecution told the jury it is a violation of federal law for city officials to take anything over $5000 in value if that city accepts more than $10,000 in federal money [my notes are a little sketchy here]. The issue here is one of intent, with the intent of being rewarded for doing city business. Zimmermann accepted a total of $7200 in cash and solicited materials for a retaining wall worth another $2000-$3000. So the indictment is for 4 counts of accepting or soliciting something of value in exchange for doing city business.

The defense’s opening statements
[I missed the first minute or two here…] One of the defense’s first comments was something to the effect of, “this is America: we believe in money and we believe in politics” [not a direct quote]. The defense attorney (Dan Scott) told the jury that people usually give money to candidates they favor, believe will be helpful to them, etc. He said to the jury that “you must face the fact that politics is about money….Sometimes folks without it do get elected; I represent one of those candidates.”

The defense claimed Zimmermann didn’t solicit a bribe, corrupt or otherwise. He painted Zimmermann as a “grassroots organizer,” one who helped folks and one who was dedicated to constituent services. He said people always call on their “alderman” for all kinds of help, which the defense witnesses will later corroborate.

He then said there were two key events or moments in this trial: PRG in 2003/04 and Carlson in 2005.

He said evidence will show that in both cases, people came to Zimmermann for help, and Zimmermann said yes. At the June 6, 2005 fundraiser where Zimmermann raised the issue of money, the theme itself was “money, money, money”—it was a fundraiser, after all. At the fundraiser, Carlson gave the campaign less than $20. Carlson approached Zimmermann and said he needed his help. Zimmermann said yes, send me an email. The FBI started the tape after Zimmermann said yes, so what you will hear is “money, money, money,” not Zimmermann agreeing first to help. The defense also said the debt wasn’t Zimmermann’s alone, but that of 15 people involved in the redistricting lawsuit. After this, Carlson left, and Zimmermann initiated efforts on his behalf (without receiving any money). The defense said Natalie Collins, Zimmermann’s aide, will state that Zimmermann worked for Carlson’s case before receiving money.

The defense then went back a year to the PRG situation. When Wetzel-Mastel (the project manager) asked Zimmermann to sign the certificates, Zimmermann said “will do” before raising the issue of the retaining wall.

The defense attorney then said he was going to do a “Paul Harvey” thing. He provided some background on the Village project in Phillips’ master plan. [It sounded like Franklin Station townhomes was Phase 1 of the project.] Zimmermann’s former partner, Lynn Mayo, owned a rental unit along the alley entrance to this PRG project in Phillips. PRG bought a small house nearby and tore it down; they also ripped down a retaining wall that was part of an existing duplex near Mayo’s property. PRG wanted to make an exchange with Mayo, but there was nothing in the Mayo agreement about a retaining wall. [Defense shows an agreement on the screens, with a handwritten note in the margins from the project manager, Wetzel-Mastel, saying “neg. if need.” Presumably this note refers to the retaining wall]. Apparently the lot was scheduled to be graded, since it was part of the entrance to the project. Zimmermann apparently told the project manager that as a result of construction, Mayo’s property had begun to “look a little ratty,” and he requested that PRG build her a retaining wall. PRG said no. The government said it was an attempt at a bribe, since the request occurred in the context of an email from the project manager requesting Zimmermann’s signature on Certificates of Completion.

The defense then shifted attention to Carlson, whom the defense attorney painted as a “classic real estate guy” who had already “burned” his way through several city officials, including the mayor. Carlson’s Chicago Commons is presented as a brownstone taking up _ of the block, a high-risk investment that extends almost up to the sidewalk. The zoning for it was OR2 [not sure if this is correct], for mixed use (commercial and residential); Carlson had tried several other zoning types before arriving at this one. The defense said Zimmermann was simply trying to steer Carlson through the bureaucracy, and the latter responded by asking “what can I do for you?” repeatedly. [Here the defense portrayed a lawyer, Larry Leventhal, as a “true idealist.” Again, my notes here are sketchy, so I won’t provide details.]

The defense then explained to the jury that Carlson’s partners are the Sabris, who control the nearby Village Market, but the Somalis at the Village Market don’t always get along with the Sabris. Carlson was simply an “enthusiastic developer” talking to a City Council member about helping him—and “that’s what Zimmermann does.”

The attorney then explained that the fundraiser in June was Zimmermann’s birthday party; Zimmermann was a member of the Green Party and a two-term Park Board member elected in 2001 to the City Council. Redistricting pitted the Council’s two minority members, Don Samuels and Natalie Johnson-Lee, against each other and pushed Zimmermann’s home out of his Ward. [I think here the attorney added some comment about everyone in Zimmermann’s ward liking him.] Zimmermann was forced to move from his residence in Phillips (near his former partner), “not in the Ward’s best area,” but across from St. Stephens homeless shelter. The defense explained that it’s a place Zimmermann liked, since “he’s operated the same way—to help folks.”

The defense also explained that Zimmermann was in favor of development since he knew people needed places to live and work, and the Green Party was also in favor of development. He concluded by saying the “government has blown this out of proportion.” He told the jury, “you’re not going to get ‘this is a bribe,’ because this is within the range of what normally happens.” He then added that Council member Lilligren will say in the coming days that Lilligren needed Zimmermann’s vote to get his garage set back, and Zimmermann did “what was right.”

Recess from 3:45 to a little after 4:00.

First witness for the prosecution: Charles Lutz
The prosecution began calling its witnesses. The first witness was Charles Lutz, Deputy Director of Community Planning and Economic Development (CPED) since its inception 3 years ago; before that, Lutz had worked for Minneapolis Community Development Agency (MCDA), CPED’s predecessor. [I won’t go into detail about Lutz’s educational background.] Lutz explained that MCDA still exists legally, but it has no staff or offices. The conversion to CPED was designed to bring housing and development into the city of Minneapolis (MCDA was a separate entity, and one narrower in scope than CPED).

City Council members were the MCDA Commissioners (by virtue of being Council members); the Council would adjourn and then meet as MCDA commissioners. As MCDA Commissioners, they signed off on Certificates of Completion and Release of Forfeitures. In June of 2004, a city charter change meant the Council no longer served as MCDA commissioners; however, projects begun before that date still required their signatures. [Remember, this point is relevant because PRG had asked Zimmermann to sign off on the Certificate of Completion for the Village project in Phillips. A Certificate of Completion is required before developers can get back their good faith deposit on a development. MCDA staff would check the project before initiating the Certificate.]

The prosecution then presented Exhibit 3 containing about 40 pages of two Certificates of Completion for Franklin Station townhomes (the Village Project in Phillips). Zimmermann and Scott Benson’s signatures were shown on one Certificate.

The prosecution then asked Lutz if people could move in without these Certificates. Lutz said no, but added that inspections permits, etc. were also required before that could happen, not just Certificates. But Certificates were one necessary step in saying work had been done to the city’s satisfaction.

The defense then asked if the city’s money helped fund these projects. Lutz said yes, that there were many sources (including packages of federal and state dollars). It was in 1980 that the predecessor of MCDA merged with another agency and became MCDA [notes are sketchy here]. Lutz also indicated that any two Council members could sign these Certificates; they didn’t need to be Zoning and Planning Committee members. Government exhibit 3 is shown, for 1605 E. 24th. Street: the signatures on this Certificate are Council members Lilligren and Benson. In response to a question, Lutz indicates that Zimmermann called him when he had questions and Lutz said he recognized Zimmermann in the courtroom.

Second witness for the prosecution: Kathryn Wetzel-Mastel
Wetzel-Mastel works for PRG, a nonprofit community development group, as project manager. When asked what sets her group apart from for-profit groups, she replied that PRG doesn’t identify projects based on potential profit; they don’t initiate projects; and they base decisions on housing needs, not whether a project will be profitable. In response to questions, she explained that PRG’s contractors are often for-profit companies and that their funding for projects comes from city, state, and county (they sometimes look for “gap funds” for the difference between the cost and the assessed value of a project). She added that PRG sometimes goes to private foundations for special needs projects, but their sources are largely public.

Wetzel-Mastel explained that PRG has 2-3 projects in the pipeline each year, with as many as 5 at different stages of completion. PRG doesn’t limit its projects to Phillips, and she herself has held different roles in different phases of a project over the 6 years she has worked for PRG. Franklin Station townhomes is phase 1 of the project; it was located in Ward 6, and Zimmermann was the Council member for that Ward. When asked if she had dealt with Lynn Mayo, Zimmermann’s former partner, Wetzel-Mastel said yes and said she was aware of Mayo’s relationship to Zimmermann. She dealt with Mayo during the transfer of Mayo’s property for PRG to comply with the city’s setback requirements for the Village project.

Government Exhibit 4 was presented to Wetzel-Mastel and she was asked if she knew what it showed. The witness said it was the master plan for the Village as it was planned in 2004. There was a setback between the townhomes and the north side of Mayo’s property. PRG had acquired the property to the south and demolished a small home. They then exchanged the land to the south of Mayo in exchange for some of Mayo’s property farther north. Government Exhibit 1 is that exchange agreement.

The witness is asked how long this negotiation took, and Wetzel-Mastel said they were about a year in negotiations with Mayo. Wetzel-Mastel said Zimmermann wasn’t present at any of the meetings, but couldn’t remember if Zimmermann was ever referenced in discussions. She was then asked if she had emailed Zimmermann to request his signature on the Certificate of Completion and she said yes.

Government Exhibit 2 is then distributed to jurors. The prosecution referenced page 2 and the “cc” containing Theresa Cunningham’s name (the city’s project coordinator). Wetzel-Mastel emailed Zimmermann on October 18, 2004 to let Zimmermann know they were almost finished and needed his signature on the Certificates. On October 19, Zimmermann replied, saying “will do,” adding that he looked forward to it, and asked if there was any chance PRG could build a retaining wall around Mayo’s property (the lot just closest to her home). The prosecution pointed out that there was no similar request to build a retaining wall on the lot of the homeowner on the other side of the alley.

At this point, Wetzel-Mastel spoke to her boss, David Rubedor, to get his approval of her intended response. The defense then objected to this line of questioning and the judge overruled the defense. The prosecution asked her, “What caused you to consult Rubedor?” Wetzel-Mastel replied [carefully, I thought] that “we have relations with all sorts of public officials, so it’s important to maintain good relations, and I wanted to be sure my response would do that.”

On October 21st, Wetzel-Mastel sent her response, and Rubedor said it looked fine to him. In her response, she explained to Zimmermann that her project budget didn’t provide for assistance in building Mayo’s retaining wall.

Zimmermann replied on October 29th, and there were no further emails between them about this issue. She said they did discuss the issue at an open house, where she explained that if Zimmermann wanted her to track down the color and style of the materials used to build the Village’s retaining walls, she could do so.

[Note from Liz: I must be missing a date or email in here, since Zimmermann responded to Wetzel-Mastel’s initial refusal by requesting materials to build the retaining wall. Wetzel-Mastel denied this request as well.]

Exhibits 5, 6, 7, and 63 are shown. These are photos of properties along 17th. Avenue. Mayo’s land swap property starts at the alley and ends about 5 feet from her home [I hope this is correct—I was trying to follow verbal and visual descriptions, so readers please be cautious here]. The alley behind the house is the entrance to Franklin Station: Zimmermann wanted the retaining wall on the north side, though he never referenced the needs of the homeowner on the south side. The two houses behind the trees are owned by Zimmermann and by Mayo.

Exhibit 63 shows the south side (neighbor’s property). [It looks to me like this property is actually closer to the alley than Mayo’s is, but I can’t tell for sure from the photo.] The stone behind Mayo’s property doesn’t extend to the other side because a “grade change” isn’t there. No grade change, no need for a retaining wall.

Zimmermann did sign some of the Certificates of Completion.

Wetzel-Mastel said there were multiple retaining walls as part of the project; these were valued at $2000-$3000.

Court recessed until 9:30 Tuesday, August 1, 2006.

[My comments on the first day’s proceedings: I suspect the prosecution is leading off with its weakest case, that of the retaining wall. People tend to remember the last things they were told, so I anticipate the prosecution’s case will build in strength and intensity. The fact that Zimmermann never requested a similar retaining wall for a neighbor in an almost identical situation casts Zimmermann’s request for Mayo in a very personal light. If Zimmermann were truly dedicated to the needs of all his constituents—as the defense so clearly claims—his request would likely have extended to the other neighbor of the property abutting the Village project.]

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