An effective defense attorney doesn't repeat the same questions, especially if they are damaging, a Cleveland lawyer says.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- U.S. Rep. James A. Traficant Jr. asked his former chief of staff today if he'd ever asked him to testify wrongfully, or lie -- and got an answer he didn't like.
"You instructed me how to testify on a specific issue," said Paul P. Marcone.
Traficant's questioning of Marcone resumed the day after he cross-examined his former press secretary and chief of staff for only 25 minutes before court adjourned Friday.
Traficant arrived with only five minutes to spare this morning, which held up court because of an issue lead prosecutor Craig S. Morford wanted to bring to the court's attention.
In referring to Traficant's questioning of Marcone last Friday, Morford said he objects to discussion of legislation not relevant to the case.
"He is not charged with not being effective. He's charged with soliciting and accepting bribes," Morford said.
Became angry: Traficant flashed anger over the prosecutor's remarks, saying that over the years, he was aggressive and effective and it's necessary to his defense to show his performance as a member of Congress.
Turning to U.S. District Judge Lesley Brooks Wells, Traficant said, "If I can't bring that out, what can I bring out?"
He said sarcastically that he was under the impression he was to be tried before a jury, not a closed bench with just a prosecutor. "Why not just scratch the jury?" he said.
The congressman said the prosecution team is trying to restrict his defense because it is paranoid over his record.
The judge took an early break this morning because Traficant, in his questioning of Marcone, kept trying to bring in hearsay conversations.
Finally, after several objections by Morford, the judge looked at Traficant and said, "That's hearsay and you know it's hearsay, Congressman."
Traficant mumbled something under his breath and said "Excuse me."
To instruct him: The judge was to use part of the break, with the jury gone, to once again instruct Traficant in the rules of criminal procedure.
Morford questioned Marcone for three hours over last Thursday afternoon and Friday morning.
Marcone told Morford that Traficant had tried to coach him before his grand jury appearance.
Marcone said the congressman wanted him to tell the grand jury that both lawyers who had been on his congressional staff were hard workers.
Marcone said he would have preferred if Traficant had said: "Just go in and tell the truth."
Unlike other former congressional staffers, Marcone did not seek immunity from prosecution for his testimony.
Marcone's spiral notebooks, meanwhile, have served as a handy tool for the prosecution team attempting to prove Traficant favored certain businessmen doing work at his horse farm.
Marcone had used the notebooks to record little memory joggers each day for phone calls and meetings. The government used the notebooks, as well as faxes and letters, to show what it has called Traficant's pattern of abuse of power for personal gain.
Last week, Marcone told the jury that he had no idea contractors such as Bernard J. Bucheit, Anthony Bucci and A. David Sugar were doing work at the congressman's farm while his staff worked hard on their cases.
Nor did Marcone know that multimillionaire J.J. Cafaro had really been the one who provided money for Traficant's houseboat while he pushed Cafaro's no-glare landing lights technology for air and watercraft with federal agencies.
Bucheit is under indictment; Bucci, Sugar and Cafaro are prosecution witnesses. Sugar and Cafaro, who pleaded guilty to their part in the Traficant case, have not been sentenced.
Concerns got attention: Marcone testified that the businessmen's concerns were each given attention by congressional staffers. The efforts weren't unusual and Traficant often got involved in cases he felt strongly about, Marcone said.
Traficant, for example, warned the Ohio Department of Transportation that if Bucci's construction company went under -- it had been disqualified from state contracts -- it meant the loss of 250 jobs. Marcone said he had no way of verifying that.
During the first few weeks of the trial, Traficant appeared to make a better prosecutor than defense attorney.
In cross-examining prosecution witnesses, an effective defense attorney makes key points, then sits down, said Roger M. Synenberg, a Cleveland defense attorney and former federal prosecutor.
Traficant, though, since he began cross-examination of government witnesses Feb. 13, has treated it as an "equal-time" exercise.
Morford, for example, questioned Boardman attorney R. Allen Sinclair for nearly three hours.
Repeat of testimony: Traficant, of Poland, D-17th, then questioned his former administrative counsel for roughly 31/2 hours. During that time, Sinclair, who had admitted under direct examination kicking back $2,500 each month to Traficant, repeated most of his damaging testimony -- and then some -- in response to his former boss's questions.
The same held true with government witnesses who followed Sinclair, such as his former office manager, scheduling secretary and former congressional staff members who worked on Traficant's horse farm during business hours.
The congressman's questions drew responses that reinforced the allegations against him, even though some staffers said they didn't believe he or they did anything wrong.
The 60-year-old congressman is charged with racketeering, bribery, obstruction of justice and tax evasion. If convicted, he faces up to 10 years in prison under the sentencing guidelines.
"You never ask a question that you don't know the answer to," Synenberg said. "It's obvious that [Traficant] doesn't know that."
What's also obvious is that Traficant needs a lawyer, Synenberg said.
An effective defense attorney would not ask the same questions over and over, as Traficant does, Synenberg said. If the answers are damaging, it gives the jury another opportunity to hear them again, he said.
Judge Wells will recess court Wednesday through Friday this week to permit the videotaped deposition of Thomas Williams in Florida. Williams once served as an ODOT inspector and supervised Bucci's projects.
Williams has cancer and cannot travel to Cleveland from Cape Canaveral to testify. The government said Traficant threatened to have Williams fired if he didn't "back off" Bucci.
Traficant's travel to Florida is at government expense. Because of a launch at Cape Canaveral, the deposition is expected to take place at a Radisson hotel in Orlando, the congressman said.