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:

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.

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