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Up next: Closing arguments



Published: Sat, April 6, 2002 @ 12:00 a.m.



The congressman said he didn't take the stand because the government didn't prove its case.

By PATRICIA MEADE

VINDICATOR CRIME REPORTER

CLEVELAND -- U.S. Rep. James A. Traficant Jr. told reporters that he tried to trick the judge and prosecution team into thinking he'd rest his defense after calling five witnesses.

Instead of calling five witnesses to the stand Friday morning, the 60-year-old congressman rested his case. The trial that began Feb. 5 moves into closing arguments Monday.

"I was trying to sucker them in to think I had witnesses and hopefully she'd [U.S. District Judge Lesley Brooks Wells] go right to closing arguments," Traficant, of Poland, D-17th, told reporters after court Friday.

"I slept like a baby and had no notes, and I was prepared to close. She surprised me by giving the weekend to everybody to regroup. I didn't need the weekend. I was hoping to catch them in a position where they're not ready to make the closing argument with their staff of 150 people."

The government had followed Judge Wells' order to have its closing arguments ready for Thursday afternoon, assuming the congressman ran out of witnesses then. Traficant rounded up enough witnesses to fill Thursday and said he'd have his final five Friday.

Comparisons to '83: Traficant, harking to his 1983 bribery trial, said he had not prepared then for his closing argument, either. At the time, Traficant was Mahoning County sheriff and won acquittal representing himself.

"I know the elements of the case," Traficant said of his desire to do his closing without notes. "I had no notes in 1983; people don't realize that."

Judge Wells told the jury Friday that closing arguments cannot be a misstatement of the evidence and that no personal attacks are permitted. The statements made by either side cannot exceed the evidence in the record.

As with opening statements, closing arguments -- each side gets 90 minutes -- are not evidence, the judge said. Lead prosecutor Craig Morford, who goes first, can reserve some of his time for rebuttal.

Traficant begged off reporters' questions as he left the courthouse, then kept talking.

"You'll have to let me go. I'm going to a Playboy Club in Chicago for the weekend to try and have some fun," Traficant said.

So, how would the congressman prepare this weekend for his closing argument, reporters asked.

"One of the problems I'm having is, for some reason I've been eating a lot of salad, and I've had some constipation," Traficant answered. "What I'm going to do, now that I have a couple of days, is take a laxative and hopefully, uh, try and clear my lower intestinal tract so that I can be as strong and vibrant as possible and get a little bit of sleep.

"So, uh, I don't know if I'll even take any notes at this point. Sometimes I'm better, uh, spontaneously than I am with documents. I understand the case. I've gotten in evidence that they did not want in."

Recap: So far, there have been 39 actual trial days.

Testimony began Feb. 13, and the government called 55 witnesses. The congressman began his defense the afternoon of March 21.

The congressman is accused of taking kickbacks, compelling staffers to do work at his horse farm in Greenford, accepting bribes and gifts, and using his influential position instead of paying contractors for work at his horse farm in Greenford.

He called 31 witnesses, three of whom the jury did not hear. The judge excluded the testimony given during small hearings by Russell J. Saadey Jr. of Austintown, James Kerchum of Warren and Fred Hudach of Hubbard.

Among those who testified as defense witnesses were six of Traficant's paid staffers -- Dominic Marchese, Dennis C. Johnson, Robert Barlow, Anthony Traficanti, Linda Kovachik and Betty Manente.

Decision not to testify: After court, Traficant said he didn't take the witness stand because the government didn't meet the burden of proof and because Morford didn't take the witness stand. Morford was precluded from testifying by ethics rules.

"For me to expose myself to questions, which may, in fact, not be necessarily relevant to the issues at hand but may make a juror question some part of my character or some part of my behavior would be absolutely foolish," Traficant told reporters. "Had they met, and I felt they met, enough of the burden, I'd have taken [the stand].

"Second of all, had Morford stipulated to it, that judge would have had no choice but to allow me to take the stand, and I was willing to take it on both counts. Morford chose not to take the stand himself, so this is an unusual criminal case in history -- the first time the condition has been made for testimony. I didn't have to stand up and offer a defense."

Traficant's reference to "both counts" meant that he was willing to answer questions about his 1983 trial and his current racketeering trial.

Aside from having Morford testify, Traficant had offered to testify if 29 conditions were met, an offer the judge rejected in an order. The conditions were really questions about prosecutorial misconduct and audiotapes the judge previously had ruled out.

Like every other defendant, Traficant has a right to testify. He does not, however, have the right to attach conditions, the judge said.

Evidence: Traficant said he elicited the evidence he needed through his witnesses.

He felt it significant that the judge allowed as an exhibit an FBI summary lab report that listed items tested for fingerprints. None of the items tested, including cash, showed legible fingerprints.

An FBI agent testified to that during the trial, but Traficant wanted the report in just in case jurors forgot the testimony given so long ago.

"Now look, they don't have a tape, they don't have a print. They made no attempt to get a tape," the congressman said. "Come on, they have more tapes on Jim Traficant than RCA has on Michael Jackson."

meade@vindy.com




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