Playing defense is no easy game in Kilpatrick trial -

Playing defense is no easy game

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Two thoughts are foremost in my mind in the wake of Attorney Gerald Evelyn's sudden collapse in court on Monday:

How much pressure even the attorneys in this case are feeling;  How Evelyn's departure on a stretcher overshadowed his canny cross-examination that planted in jurors the notion that his client Bobby Ferguson was more of a victim of Lakeshore Engineering than a bully who forced them to cut him in on deals.

First, the pressure.

While you wouldn't know it from their demeanor in the courtroom, the lawyers in this case are feeling the heat. It's hard to gauge how much it gets to the prosecutors, who eschew reporters outside the courthouse, but the stakes are enormous for them.

The government has scored plenty of convictions in their public corruption probes, but through plea deals. From the Sam Riddle trial to the Ferguson bid-rigging case that wrapped up just before the Kilpatrick & Co. trial started, juries have not been kind to the government.

You could argue that those cases involved a recalcitrant juror who triggered mistrials by simply refusing to decide the case on the merits, but the end result was effectively the same: Defense 1, Prosecution 0.

If the feds don't get convictions in this case, I suspect it will be ages before they launch a similar examination of the way public officials do business in Michigan. There is a fatigue factor to consider here, too.

Unlike the defense attorneys, who have been involved in this case for the past couple years, the prosecutors have been dealing with Kilpatrick's capers for nearly a decade.

Take it from me, that's a big chunk of your life to devote to a particular matter.

The difference for the feds is that the text message scandal Jim Schaefer and I exposed was resolved in less than a year, with Kwame Kilpatrick and Christine Beatty leaving office, pleading guilty to obstruction of justice and agreeing to jail terms.

Of course Schaefer and I had been reporting on Kilpatrick's misdeeds for several years by the time we obtained his incriminating text messages in 2008.

But if you set aside the fact that many of the charges in court today stem from our work, you could argue that the response to our reporting came in far less time than the wait the feds will have to learn the result of their efforts.

It's easier to read the defense attorneys.

Like the prosecutors, they are generally very pleasant folks. But on some days -- particularly the days when they are leading the cross-examination, when a witness doesn't answer their questions they way they hope or expect, or when they feel the media failed to record all of the points they think they've scored -- they can get a little surly.

On days when one of their colleagues is doing most of the work before the jury, they are far more relaxed and, dare I say it, can be downright charming.

There are two factors at play here. One is that this is the most high-profile trial in Michigan's recent history. Hell, in my 45 years I can't think of a bigger case. And I dare say my grandma, who is sharp as a tack at 93, couldn't come up with one, either.

The attorneys know this. They are all accomplished in their own right, but they have never worked on a bigger case. The federal courthouse is a very intimate place where everyone seems to know everyone.

Their peers are inquisitive and occasionally drop in to watch the proceedings. Reporters are in the courtroom and blogging from an overflow room every day. So they are very aware that their every move is being watched.

And I suspect they feel that each move is being scrutinized and probably even criticized by folks not as well-versed in the particulars as they are.

For the older lawyers -- all of whom are vigorous and handsome men, which I point out so they don't try taking a poke at Kid Elrick for noting that they may have had the privilege of hearing John F. Kennedy's inauguration speech over the RCA Victor in their one-room school house on the day it was delivered -- this case could be the capstone on a distinguished career.

For the younger lawyers -- equally dynamic and attractive, which I acknowledge so they don't assume that a jab at the Pride of the East Side is fair game -- this case could kick their career into Michigan's legal stratosphere.

And while the burden of proof rests with the prosecution, in many ways the defense bears a far heavier burden.

If the prosecutors lose, they can still go home.

If the defenders lose, their clients go to prison. And probably for a l-o-o-o-ng time.

The other factor is that the defense attorneys seem to genuinely like their clients. Kilpatrick attorney James Thomas may not be the "turkey knife" Kilpatrick was looking for (as he said during his 11th-hour bid to get a new attorney), but Thomas has consistently referred to Kilpatrick as "my mayor," even though he doesn't live in Detroit and Kilpatrick has on more than a few occasions put Thomas in an awkward spot.

They walk through downtown to and from court together every morning. John Shea affectionately refers to Bernard Kilpatrick as "B.K." as he shuttles him to and from court. Marty Crandall also chauffeurs Victor Mercado. And former Marine Mike Rataj often seems like he'd rather sing Bobby Ferguson's praises than the "Halls of Montezuma."

Now for Evelyn's cross-examination.

During several hours of answering prosecution questions, Thomas Hardiman of Lakeshore Engineering Services made a compelling case that Ferguson not only did not try to help minority contractors, he hurt them. Hardiman, who is black, said he believed Ferguson held up contracts if he didn't get a big enough piece of the action. He said Ferguson took work away from other contractors. And he said Ferguson insisted on being paid -- even if he didn't do any work.

But during cross-examination Monday, Evelyn got Hardiman to acknowledge that Lakeshore included Ferguson in a bid proposal because it could tout Ferguson Enterprises' status as a Detroit-headquartered business with a predominately Detroit-based workforce.

That's all well and good, but Evelyn got Hardiman to admit that once Lakeshore's team landed the deal the work that was supposed to go to Ferguson was given to a subsidiary of a white-owned firm. What's worse, while the white-owned firm was part of the team, there was no mention of its subcontractor when Lakeshore and its partners pitched the deal to the city.

This didn't sit well with Ferguson, which jurors first heard about on Friday when prosecutors questioned Hardiman.

But Evelyn's cross on Monday offered a different take: Ferguson was mad because he was being steered out of his share of a deal that got done, in some measure, because he and his firm were a part of it.

In other words, the man the government portrayed as a player got played. In the end, Ferguson's firm got hundreds of thousands of dollars for work it did not perform.

Still, that is a far cry from what it would have received if it had been paid what it was supposed to get under the contract proposal: 36 percent of a deal that ultimately yielded $19 million.  

Of course, this leaves me with two new questions:

Is it OK to take bushels of taxpayer money without doing any work?

And how would that strike George Brown, a former Ferguson employee who said Ferguson calls him uncle, who testified weeks ago that he long-ago advised his putative nephew to never act as a front and to do all the work for which he got paid?

God willing, Evelyn will be back to tackle both of those matters soon.


Follow M.L. Elrick's coverage of the Kilpatrick & Co. trial daily on FOX 2 and at Contact him at or via Twitter (@elrick) or Facebook. And catch him every Friday morning around 7:15 a.m. on Drew & Mike on WRIF, 101.1 FM. He is co-author of "The Kwame Sutra: Musings on Lust, Life and Leadership from Detroit Mayor Kwame Kilpatrick," available at A portion of sales benefit the Eagle Sports Club and Soar Tutoring. Learn more at

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