By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
"This is a highly educated man who is highly intelligent," Cardona said before rattling off a synopsis of Symington's resume, including his Harvard education, head of The Symington Company for 10 years and a former director of Southwest Savings & Loan and American Savings & Loan.
"He is not the type of person who simply forgets," Cardona said.
Cardona insisted that Symington knew precisely what he was doing when he gave inflated net worths to lenders to get loans and then provided more detailed, negative information when it was time to repay. He knew this, Cardona said, because Symington was once a banker.
"Mr. Symington knows how to negotiate with banks. He knows how to threaten bankruptcy," Cardona said. "He knows how to get attorneys. He knows how to go to them and say, 'Look, I've got you over the table right now, so let me out of my guarantee.'"
When it was time to get out of guarantees, Symington was more than willing to provide lenders more accurate financial information.
"In fact, he wants to because he wants to convince them I can't repay, so give up, settle with me, don't come after me on my guarantees," Cardona told the jury.
Cardona meticulously reviewed each of the 21 counts, explaining why Symington is guilty of each and where to find the evidence. In doing so, Cardona focused on the central theme of the case: Symington lied on his financial statements, he lied to lenders, he lied to his accountants and, most important, he lied to jurors.
Rather than telling the truth, Cardona said, Symington sculpted his testimony to fit excuses defense attorney John Dowd had presented in opening arguments.
Cardona pointed to three counts accusing Symington of falsely certifying to Dai-Ichi Kangyo Bank that his net worth exceeded $4 million when Symington knew his net worth was negative $23 million. The certification allowed Symington to make draws from DKB to construct the Camelback Esplanade.
In opening arguments, Dowd claimed that Symington signed the draw requests because he wanted to make sure subcontractors were paid and that DKB received interest payments that were built into the loan.
"Mr. Symington basically parroted that theme and volunteered it every time he was given an opportunity," Cardona said.
The reality, Cardona said, was that Symington didn't want DKB to declare him in default on his largest, most visible real estate project.
Cardona gave the jury other examples of Symington lying on the stand, including claims that no lenders ever confronted him about his false financial statements (two had done so) and Symington's bizarre explanation of how he used "future values" to determine his share of the real estate projects.
"He told you what he thought he needed to tell you to try and get you to do what he wants [you] to do," Cardona said.
"Don't be fooled."
The defense needed far more than facts to crack the government's case. It needed to change the meaning of the facts already presented.
It was a job perfectly suited for John Dowd. For 12 weeks, Dowd slogged through the trial, frequently appearing befuddled by the profusion of exhibits and repeatedly asking prosecutors for assistance in identifying key documents. His examinations of witnesses often wandered aimlessly.
Dowd's expertise lies in negotiation. He was initially hired by Symington to derail the federal criminal investigation that began in late 1991. Although Dowd failed to stave off an indictment, he helped delay the action several years.
Closing arguments offered Dowd the opportunity to shift the jury's collective consciousness. To do so, he needed not only to penetrate their minds, but climb into their hearts and souls.
He needed to preach.
A large man with a streetwise Eastern accent and deep emotional well, Dowd understood the importance of keeping the jury's attention during his five-hour summation.
One moment his voice thundered across the courtroom, his arms thrusting to make a point. Later came the soft sell, as Dowd whispered lines from his prepared script as he moved close to the jury. At one point, Symington wiped tears from his eyes, and Dowd's voice choked as he concluded his comments.
By the end of the day, Dowd had employed every theatrical technique short of getting down on one knee and cuing the violins.
It was a powerful performance that convinced some courtroom observers and journalists that Symington would be acquitted on all 21 counts.
Dowd launched his statement by claiming that his client was the victim of a Romanesque persecution.
The government, Dowd said, scoured Symington's financial life, looking for anything that could be used to paint an evil picture while ignoring the collapse of the commercial real estate market in the late 1980s.
"Only the government would use another man's misfortune caused by market forces to build a case against them," Dowd said.
And the government agents are liars, Dowd said.
The prosecutors, Dowd told the jury, are ignoring facts simply to convict an honest man.
Cardona, Dowd said, is "doing precisely what he's accusing Mr. Symington of doing, omitting material facts from his case to give you a distorted picture."
Not only is Governor Symington a victim of the government, Dowd said, he also had inept accountants. Coopers & Lybrand, Dowd argued, approved Symington's financial statements in 1987, 1988 and 1989 even though they were filled with errors.