Judge Stranded

During the 13 weeks he's presided over Governor J. Fife Symington III's criminal trial, U.S. District Court Judge Roger B. Strand often has delayed making even routine decisions.

His indecisiveness continued Tuesday, August 5, when Strand declined to release final jury instructions to the prosecution and defense lawyers on the eve of closing arguments.

Instead, Strand was to issue the crucial jury instructions, which will govern how attorneys present closing arguments, on Wednesday morning, just 45 minutes before prosecutor George Cardona was set to begin the government's closing argument. Lead defense attorney John Dowd was to immediately follow Cardona.

Strand did make one major decision Tuesday, dismissing one of the 22 charges facing the governor. Strand tossed out count 12, which alleged that Symington knowingly submitted a false financial statement to the Mercantile Bank & Trust Company of Baltimore.

The defense had argued that Symington's financial statement was irrelevant to the bank's decision to issue a $300,000 letter of credit to Symington because the credit was secured by his mother's assets.

Cardona asked Strand for the legal basis for dismissing the count to assist the government in constructing a possible appeal.

Strand declined to provide his legal reasoning, but added, "I would only ask you to review all the evidence on that count."

Strand let stand 19 other bank-fraud-related charges and one count each of perjury and attempted extortion. The 21 felony counts are expected to go to the jury Thursday afternoon.

The trial quickly moved into its final stages after more than a week of testimony by the governor.

Symington's four-day cross-examination was a test of nerves for him and prosecutor David Schindler.

Although both men strained to maintain decorum for the most part, there were flashes of anger from both.

Schindler held an even tone despite Symington's stubborn refusal to directly answer questions, his selective memory, put-on befuddlement and his repeated demands to review exhibits. Schindler occasionally injected a snide remark--such as, "Done?"--after long, self-serving Symington rambles.

Schindler asked Judge Strand several times to order Symington to answer questions directly. At one point, Schindler reminded Symington that the attorney asks the questions and the witness answers them, not the other way around.

Symington generally maintained his cool and withstood each attack with well-prepared, although sometimes ridiculous, responses. He spoke confidently, despite the flimsiness of many of his explanations. The governor frequently appeared delighted with his responses, finishing an answer with a slight nod and an inverted grin as if to say, "So there!"

How the jury interprets Symington's demeanor during his week on the stand may be as important as what the governor actually said--or didn't say.

But what did his body language tell jurors?
Did they see a fat cat who refuses to accept responsibility for his actions? Or did they see a confident man bravely standing up for himself?

Symington had better hope for the latter, because Schindler masterfully eviscerated Symington's defense.

Schindler quickly dispatched Symington's first line of defense--blaming his former accountants at Coopers & Lybrand and, particularly, the late John Yeoman.

During direct examination by his attorney, Symington blamed Coopers & Lybrand for failing to inform him that his 1987, 1988 and 1989 personal financial statements were filled with bogus numbers that grossly overstated his net worth.

But Schindler forced Symington to confront his own handwritten notes, which indicated that Symington didn't want Coopers & Lybrand to determine the values of his real estate, which constituted more than 90 percent of his net worth.

Symington finally admitted that it was he, not Coopers & Lybrand, who determined values of his real estate.

"I would determine the market values on my statements," Symington testified.
Nevertheless, Symington insisted that "it goes without saying" that Coopers & Lybrand had a responsibility to notify him of any mistakes on his financial statements.

Schindler laid out how Symington kept multiple versions of his financial statements. First, Schindler presented evidence showing Symington had data at his disposal that would have allowed him to quickly and accurately compute the values of his real estate projects, all of which were in serious trouble as early as 1985 as the Phoenix commercial real estate market plummeted.

Schindler showed the jury how Symington's various financial statements for 1987 and 1988 failed to reflect the eroding market: Loan values were understated, market values overstated while the value of Symington's ownership share of the projects seemed plucked out of thin air.

Symington's stated net worth yo-yos up and down throughout the late 1980s.
In April 1988, Symington gave Dai-Ichi Kangyo Bank a statement saying his net worth was $9.3 million as of December 31, 1987. A month later, he gave First Interstate Bank and Valley National Bank another December 31, 1987, statement saying his net worth was $10.6 million.

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John Dougherty
Contact: John Dougherty