Might He Be Innocent

O.J., DeLorean, North -- and Symington?
At first blush, the federal government's 23-count criminal indictment against Arizona Governor J. Fife Symington III appears to be a devastating document.

The indictment charges that Symington knowingly misled five lenders about his financial health in connection with nearly $150 million in loans for seven real estate projects he managed. All of those developments failed.

Once Symington became governor, prosecutors allege, Symington used the power of his office to try to extort one lender that wouldn't cooperate with his demands to be released from a $10 million loan-repayment guarantee.

The government rounds out its case by claiming the governor lied in sworn testimony at an October 31, 1995, bankruptcy examination about his financial condition during a crucial period in early 1990.

The government's case is backed by thousands of pages of documents. Those records include a multitude of conflicting personal financial statements that appear to show Symington claiming to have multimillion-dollar positive and negative net worths at virtually the same time.

Indictments, however, can be misleading. There are many complex, high-profile cases where prosecutors appeared to have overwhelming--almost irrefutable--evidence, only to lose the case; O.J. Simpson, John DeLorean and Oliver North are but a few of the defendants in such cases.

Criminal lawyers, real estate experts, law professors and accountants say they wouldn't be surprised to see Fife Symington's name added to the list of prominent people who escaped final conviction, despite an apparent plethora of evidence against them.

Like Simpson, DeLorean and North, Symington is represented by the best legal counsel money can buy. The governor's attorneys know the intimate details of the government's case and are confident they can win at trial.

"Is there a criminal case?" Symington's attorney John Dowd rhetorically asks. "The answer to this question is no."

Dowd, a former federal prosecutor who once headed the U.S. Department of Justice's white-collar criminal task force, knows the strengths and weaknesses of the 23-count indictment against Symington better than anyone. He's been discussing the case with the government since late 1991 and submitted five lengthy memorandums between May 1993 and January 1996 arguing why Symington should not be indicted. And Dowd has the expertise and resources of the renowned Washington, D.C., law firm of Akin, Gump, Strauss, Hauer & Feld behind him.

A common theme runs through Dowd's memorandums to federal prosecutors: Mistakes were made, but no harm was intended.

"Fife Symington, while perhaps negligent, did not knowingly submit false statements to any financial institution," Dowd wrote federal prosecutors on March 17, 1994.

Dowd's thesis--that Symington simply made "errors and omissions" in his financial statements and never intended to mislead lenders--continues to be the core of Symington's defense. The mistakes-were-made strategy cannot simply be dismissed as a desperate legal tactic.

"We would all be making a mistake if you just assume what these documents show are damning and that he's toast," says Phoenix criminal attorney Mark Budoff.

Or as Phoenix attorney Murray Miller puts it: "I think the government will have to go a long way to prove he defrauded banks and is guilty of a crime."

Miller, by the way, helped prepare former governor Evan Mecham's defense against state charges of financial wrongdoing. Contrary to virtually all expectations, Mecham was acquitted.

Defense No. 1: Honest Mistakes That Fooled Nobody
If Symington does escape conviction, it will not be because there is some legally fatal lack of evidence against him.

Prosecutors are using Symington's own personal financial statements and tens of thousands of pages of other financial records to build their case. They also have taken grand jury testimony from more than 300 witnesses.

To buttress what appears to be an all-but-ironclad case, prosecutors reached an agreement in September with Symington's former personal, business and campaign accountant to assist the government in its case against the governor. As part of a settlement of a federal investigation earlier this year, the Big 6 accounting firm of Coopers & Lybrand admitted that Symington had misled the firm by presenting false financial information to its accountants.

"Symington's December 31, 1987, 1988 and 1989 statements of financial condition contained material errors and omissions," Coopers & Lybrand stated in a September press release.

The government's case hinges largely on proving that Symington knowingly submitted these purportedly false financial statements to an array of lenders.

The government's settlement with Coopers & Lybrand seemed to seal Symington's fate. The United States said Fife Symington had falsified financial statements; Symington's own accountants had agreed.

But court records released last month suggest that the governor's defense is not as hopeless at the micro level as macroanalysis would make it seem. Detailed correspondence between Dowd and federal prosecutors during the past three years--correspondence recently filed into the official court record--reveals that the governor's attorneys have long claimed Symington's personal financial statements were prepared by Symington without the help of professional accountants. Those statements were, in his attorneys' view, simply the governor's best estimates of his financial condition, not the representations of experienced accountants.

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John Dougherty
Contact: John Dougherty