Fife's Last Stand?

Some observers believe governor must testify to save his own skin

Thirteen months ago--on June 13, 1996--Governor J. Fife Symington III summoned the media to the State Capitol to respond to the announcement that a federal grand jury had accused him of committing 23 felonies.

Symington told the packed conference room that he wouldn't attempt to detail the evidence that he promised would someday exonerate him. Instead, he simply proclaimed his innocence.

"I will tell the people of Arizona I am innocent of these accusations," Symington announced to a live television audience throughout Arizona.

With his wife appearing dazed at his side, Symington said he welcomed the indictment because it finally would give him the opportunity to explain his conduct--both as a businessman and as governor--on a level playing field.

"At long last, the day in court is now near," Symington confidently stated.
Symington's long-sought day has arrived. The prosecution last week rested its case. But, so far, Symington's bravado has been supplanted by silence.

Two months ago, Symington's attorney, John Dowd, promised jurors during his opening arguments that they would hear from the governor during the trial. Dowd has since retreated from that position.

"I haven't made up my mind," Dowd told reporters outside the U.S. District Courthouse last week when asked whether Symington will testify.

Time is running out. The defense only has another seven days (as of July 24) to present its case under the time line set by U.S. District Court Judge Roger B. Strand.

If Symington is going to testify, however, it will certainly be as the final witness. Until then, Dowd appears to be wrestling with a calculation that will determine whether he should call his most powerful, and potentially most dangerous, witness.

Phoenix attorney Murray Miller knows what Dowd is going through. Miller defended former Arizona governor Evan Mecham during his state criminal trial in 1988 after Mecham was impeached and removed from office. Miller did not put Mecham on the witness stand--and Mecham was later acquitted on six counts.

In Mecham's case, the state presented such a poor case that Mecham's testimony was not required. But in this case, Miller says Symington has little choice but to testify.

"I would most definitely put him on the witness stand," Miller says.
The prosecution, in Miller's view, has put on a very strong case by introducing scores of documents with Symington's signature and presenting damaging testimony from bankers, accountants and business associates.

Miller says only Symington can provide answers that jurors are seeking.
"I think they are going to want specific explanations from the horse's mouth," Miller says. "I think he is going to have to look them right in the eye and try to respond to all these allegations."

Obviously, the stakes are high.
"If he doesn't convince them, I think he is going to have a difficult time," Miller says.

Other Valley attorneys take a less pessimistic view of Symington's situation. Phoenix defense counsel Doug Behm believes the prosecution may have presented too much information during the past 10 weeks to the jury, leaving it confused and bored.

"I don't know how much of it they are absorbing," says Behm, who is intimately familiar with many nuances of the case--he represented Symington's former Coopers & Lybrand accountant, the late John Yeoman. Behm was defending Yeoman on federal charges of conspiring to rig a state contract for Symington's cost-cutting initiative Project SLIM when Yeoman was killed in a traffic accident.

Behm says information overload linked with plausible defenses makes the case a tossup. In particular, Behm says Dowd and his fellow defense counsel Terry Lynam and Luis Mejia have done a good job undermining testimony of prosecution witnesses during their cross-examinations.

Even though the case, in his view, is too close to call, Behm says he expects Symington will testify at the trial, but only after Dowd has carefully reviewed the possible pitfalls.

Juries, Behm says, typically want to hear a defendant testify, and this is particularly true when a public official is involved.

"If he doesn't testify, it's probably going to hurt him," Behm says.
However, if Dowd determines that putting Symington on the stand could result in the introduction of new, seriously damaging information, then Behm says Symington will probably ride the trial out on the sidelines and hope for an acquittal or a hung jury.

The government's lengthy and often tedious case picked up tempo during the past two weeks with a series of witnesses that reinforced the theme that lenders were influenced by Symington's rosy financial statements. The government finished by presenting evidence related to its most politically damaging charges of perjury and attempted extortion.

"The government in their closing 10 days of the case scored sufficient points that may force Symington's hand to come forward and explain," says Valley defense attorney Mark Budoff.

But that doesn't mean Symington is losing sleep over the prospect of testifying. Symington, Budoff says, appears to be enjoying the duel and is likely eager to testify.

"I think he truly relishes the fight," Budoff says. "He sure looks like he believes in his innocence and expects to get off."

Another arm-chair observer closely monitoring the case is Arizona State University law professor Dale Furnish, who believes Symington clearly is in the driver's seat as the case heads toward its conclusion.

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