Fife's Last Stand?

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.

"I think he's going to beat it," Furnish says. "I don't think the prosecution has landed any real blows."

Furnish was particularly critical of the government's last witness, former Symington business associate Jean Wong. Furnish says the government failed to end its case with a flourish after Wong was sliced up by Dowd during cross-examination.

Earlier, during direct examination by prosecutor David Schindler, Wong painted a picture of a woman who left a promising career at Coopers & Lybrand to join Symington, initially taking a small pay cut to do so.

But in Dowd's best cross-examination of the trial, he demonstrated that Wong received more than $500,000 in salary and bonuses during the five years she worked for Symington.

"The idea she took a pay cut and was his faithful servant who wasn't getting much out of the deal doesn't wash," Furnish says.

While Wong claimed she was betrayed by Symington after she left the company and at one point wept on the stand while reading a leader of thanks from Symington, Furnish says Wong was shedding crocodile tears.

"She's crying and making a six-figure income," Furnish says. "Where can I get that?"

Dowd is likely weighing all of the above assessments, and many more, before making a final decision of whether to put Symington on the stand. One crucial element will be the direction of testimony this week relating to the role of Symington's accountants at Coopers & Lybrand.

In a crucial decision last Friday, July 18, Judge Strand gave the defense permission to call an expert witness to testify about Coopers & Lybrand's duty when its accountants reviewed Symington's financial statements in 1987, 1988 and 1989.

Strand said the defense may present evidence that shows Symington didn't intend to mislead lenders because he asked and received Coopers & Lybrand's stamp of approval on his financial statements.

But Strand also warned the defense that putting too much emphasis on what Coopers & Lybrand did or didn't do could backfire.

"Reliance on an accounting firm is not a defense" to charges of filing false financial statements to induce lenders to lend Symington's real estate partnerships millions of dollars, Strand said.

Dowd, however, declared, "It's a terrific ruling."
Now, the defense can attempt to shift the blame for Symington's erroneous financial statements from Symington, the man who signed the statements, to his accountants at Coopers & Lybrand, who agreed to conduct a limited review of Symington's statements.

Shifting blame, however, may not be enough for Symington.
"You are still talking about a lay jury," says Miller. "They are going to want to know about his intent and what his feelings were."

Only Symington can address those concerns.
If the governor chooses not to testify, the jury will be forced to rely largely on Symington's handwritten notes to get a glimpse of his intent.

The notes, especially those from May 1987, raise serious questions about whether Symington wanted Coopers & Lybrand to do a thorough examination of his financial statements.

In his notes, Symington expresses fear of letting Coopers & Lybrand do an audit or another, even less rigorous accounting review of his financial statements. Symington thought an audit would slash his reported net worth by drastically lowering the values of his real estate holdings.

"The CPA firm . . . will, in the end, decide on the values of my properties--not me!" Symington scribbled on a May 20, 1987, memo when confronted with the prospect of an audit.

Instead, Symington contracted with Coopers & Lybrand to conduct a limited review of his financial statements.

If Symington testifies, prosecutors are certain to hammer him over his decision not to do an audit, especially at a time when more than $70 million in loans for his Camelback Esplanade project hung in the balance. They'll ask the governor why he didn't want his accountants to determine his real estate values.

How he answers such questions may determine whether Symington remains governor or goes to prison.

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John Dougherty
Contact: John Dougherty