The congressman was expected to argue today that a juror was selected whom he intended to strike.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- Some say an opening statement is so important it can make or break a case.
Craig S. Morford, the by-the-book lead prosecutor in the racketeering case against U.S. Rep. James A. Traficant Jr., undoubtedly spent Tuesday night writing a clear and concise opening statement.
"I probably won't write one," Traficant said as he left court Tuesday. The "gotcha" grin he flashed left reporters wondering if he was serious.
U.S. District Judge Lesley Brooks Wells gave Morford and Traficant 30 minutes each to tell jurors today what the evidence will show in the coming weeks. The jury of nine women and three men, plus six alternates, was impaneled late Tuesday, the sixth day of jury selection.
Traficant had accused the government of trying to seat an all-white jury and the judge of going along with the plan. There are four blacks on his jury.
MyCounsel.com, meanwhile, offers this overview of opening statements:
"What a lawyer says in the opening statement is crucial in the court proceedings. Some go as far as saying an opening statement can single-handedly make or break the case.
"An attorney tries to accomplish two things: Make a strong case to sway a juror's opinion of the defendant's guilt at the onset, and build a rapport with the jurors. Your lawyer wants the jury to like him or her and to feel sympathetic toward you."
Because Traficant is his own lawyer, the "your lawyer" and "toward you" apply to him.
Judge's warning: Once the panel had been sworn in and excused late Tuesday, Judge Wells cautioned the 17th District congressman that opening statements fall into a very narrow slot. They must be a preview of the evidence to come.
They are not an occasion for argument, she stressed.
Morford voiced concern that Traficant would venture into areas that the judge has already determined are off-limits. The prosecutor mentioned the 60-year-old congressman's vendetta theory and allegations of prosecutorial misconduct.
"I object to that!" Traficant said, rising to his feet. "If the evidence shows motive ... I should be able to show obsession. I may not scream vendetta, but the government doesn't like me!"
Traficant's demeanor had changed from the polite, soft-spoken man with the bandaged finger whom jurors had seen all day Tuesday. Out of their view and earshot he appeared combative, agitated and surly.
Judge Wells said matter-of-factly that issues she has ruled are off-limits "will not come in." The judge's denial of Traficant's evidence the past few months contained a critique that what he supplied -- audiotapes, letters and affidavits -- appeared "staged and self-serving."
Traficant, still pushing to see how far his opening statement could go, wondered if he could say that threats had been made against him by FBI agents.
"If you can say the evidence will show that -- ," was all Judge Wells was able to say before Traficant cut her off.
"Then it's allowed?" he asked. "I do plan to show FBI agents made threats against me."
Judge Wells said she wouldn't rule in advance.
Rejected evidence: Traficant then resurrected his request to supply evidence that the judge had rejected.
"Oh, let's not go into that," Judge Wells said with a discernible sigh.
"I will offer witnesses that will testify to that," the congressman said, having the last word.
Although prosecutors supplied a list of more than 120 names of people who could be mentioned in the trial or called as witnesses, Traficant supplied none. Judge Wells read the names in open court to see if any prospective jurors had a connection to those on the list.
When Traficant arrived for court Tuesday, dressed in a snug circa-1970s black suit and black cowboy boots, he told reporters that he might call witnesses but was not going to notify anyone beforehand of who they might be.
Complaints about jury: Before opening statements today, the judge was expected to deal with a problem Traficant brought to her attention after jurors left Tuesday. He said he wants a juror to be removed and grumbled that he had "saved a strike" to do it.
The congressman was permitted to eliminate 13 jurors without giving a reason. The government had nine strikes.
"He could have stood up and asked for a sidebar," Morford said, challenging the congressman's after-the-fact complaint. "To wait until the jury is sworn in is late in the day."
The judge told Traficant to file a motion if he wanted.
Rethinking that, she said: "Maybe we can clear it up at 8:30 [today]," her tone a bit weary.
The judge had granted Traficant's request that each juror who remained in the pool before the strikes stand in the gallery so they could be seen. The strikes were done by passing a list back and forth between Traficant and prosecutors.
Again seeks dismissal: Traficant also said he wanted to renew a motion he filed asking that his indictment be dismissed, based on the absence of jurors from his congressional district. He maintains the rule that draws jurors by courthouse location was enacted a month after his original indictment in May 2001.
His superseding indictment was handed up in October 2001.
Traficant said he also intended to appeal the selection.
"Fine, thank you," Judge Wells said dismissively.
After court, Traficant complained that the government removed prospective jurors who had even the thinnest link to Youngstown. His home is in nearby Poland.
During the challenges for cause (good reason), Traficant tried to exclude those who had any connection to the FBI, IRS or any law enforcement agency.
Of one prospective juror whose brother-in-law works for the IRS, Traficant said, "I can see a family doing on a Sunday and at the table the IRS agent, with a smirk, saying, 'You're on the Traficant trial.'"
The judge excused the juror.
The congressman also zeroed in on jurors who answered that defendants should have to prove their innocence.
Traficant, not amused, wanted a juror gone whose family has made jokes about him.
Morford said the jokes weren't about things Traficant had done, the jokes were about the congressman's hair.
The juror was not excused for cause but was not selected for the final jury.
The government challenged for cause -- but Traficant wanted to keep -- a 30-year-old salesman from Avon Lake whose friends told him this about the congressman: "This guy's cool -- he must be Italian." The judge didn't excuse him as a juror, but the government obviously used one of its strikes because the man didn't make the final cut.
Words of advice: Jurors were told to be ready to take their seats at 9 a.m. today. Judge Wells said they should dress comfortably and bring reading material for down times.
"This beautiful but old courtroom goes hot and cold, we never know," she said from the bench of her ornate workplace, unchanged since 1910. She then offered advice on what to wear to accommodate erratic changes in temperatures: "As my grandchildren tell me, 'Layer, layer.'"