Posted on 03/26/2008 4:24:04 AM PDT by Jet Jaguar
DETROIT (AP) - Legal experts say that the heart of the perjury case against Mayor Kwame Kilpatrick—steamy text messages that seem to contradict his sworn denials of an affair with an aide—might be less open-and-shut than many believe.
Kilpatrick's attorneys want to keep the intimate and sexually explicit text messages out of a trial, and at least one outside defense lawyer says the admissibility of such high-tech communications is an unsettled legal question. Even if they are admitted, experts say the defense will exploit any ambiguity in the messages, in the questions the mayor and former Chief of Staff Christine Beatty were asked under oath, and in their answers.
"If the questions were not clear, and that's going to be used to prove the case, then that's another avenue in trying to establish a reasonable doubt," former federal prosecutor Matthew Orwig said Tuesday.
On Tuesday, the usually gregarious Kilpatrick was subdued as he stood mute to eight felony charges of perjury, conspiracy, obstruction of justice and misconduct in office during his arraignment in Detroit. Beatty also stood mute to seven of those charges.
Not guilty pleas were entered for both. They were released on personal bonds and are expected to appear at a June 9 preliminary examination that will determine if they will face trial in Wayne County Circuit Court.
The charges stem from a lawsuit filed by two former police officers who won a jury verdict last year. They said they were fired for investigating claims that the mayor used his security unit to cover up extramarital affairs.
Kilpatrick had said he would challenge the verdict, but prosecutors allege that a multimillion-dollar settlement was reached after the officers' attorney showed the mayor's lawyers references to the text messages, which had been left on Beatty's city-issued pager.
The Detroit Free Press published excerpts of the messages in January, prompting an investigation that led to charges against Kilpatrick and Beatty on Monday.
Kilpatrick's lawyer Dan Webb is a former U.S. attorney known for his three-hour cross-examination of former President Ronald Reagan in the Iran-Contra scandal. Webb won a conviction, later reversed, against Admiral John Poindexter on charges linked to the scandal.
Webb also was the chief defense attorney in the corruption trial of former Illinois Gov. George Ryan, who is now in prison.
Webb says the release of the text messages violates federal law.
"Under the Stored Communications Act they absolutely should not have been produced in civil litigation," Webb said Monday. "Because of that, everyone who sees them is clearly tainted because the initial production was illegal."
Miami criminal defense lawyer Milton Hirsch said Webb's effort to bring the 1986 act into play is a good move.
"He's a very fine lawyer," said Hirsch, who specializes in defending public corruption cases. "There is very little law on this, but I think it's a motion worth filing. It could make good law and could establish an important point."
Kilpatrick and Beatty denied having an intimate relationship when they testified in the police officers' lawsuit.
"Mayor Kilpatrick, during 2002 and 2003, were you romantically involved with Christine Beatty?" asked Mike Stefani, who represented the police officers.
Kilpatrick's response: "No."
Beatty said "no" and rolled her eyes when asked if she and the mayor were "either romantically or intimately involved" during the period covered by the case.
Text messages published by the Free Press told a different story.
"I'm madly in love with you," Kilpatrick wrote on Oct. 3, 2002.
"I hope you feel that way for a long time," Beatty replied. "In case you haven't noticed, I am madly in love with you, too!"
On Oct. 16, 2002, Kilpatrick wrote Beatty: "I've been dreaming all day about having you all to myself for 3 days. Relaxing, laughing, talking, sleeping and making love."
The messages also included dialogue about where to meet and how to conceal their trysts. Hirsch, however, said the messages may not be enough to prove perjury.
"The world is full of people who are in the habit of exchanging salacious phone calls, e-mails and text messages," he said. "It doesn't mean they are having an actual relationship. Did they say (under oath) they didn't have physical sex, or have no personal relationship or interaction, at all?
"If the witnesses testified 'we have nothing but a business relationship, we scarcely even talk about anything besides business matters,' that's a different matter," Hirsch said.
Sex is not the only issue surrounding the text messages. The prosecutor's office filed an investigative report Tuesday that included an excerpt of a text message from Kilpatrick asking members of his staff for help in explaining the departure of former Deputy Chief Gary Brown, one of the former officers who sued.
On June 24, 2003, he wrote: "We must answer the question? Why was Gary Brown fired. It will be asked, I need short, powerful answer ... I just need a good answer. Whatever it might be."
During the whistle-blower suit, Kilpatrick said Brown was "un- appointed."
"He was not fired," he testified.
Perjury, under Michigan law, is defined as "willfully" swearing falsely while under oath and is punishable by up to 15 years in prison.
A 2004 Michigan Supreme Court ruling could help prosecutors' case. Reversing more than 150 years of precedent, the court said prosecutors don't have to prove that a lie was material to a case.
___
Associated Press Writers Jeff Karoub and David Eggert contributed to this report.
Or better yet, how about this: "why all that stuff isn't sex, only the missionary position leading to a live birth is sex. And she ahs never given birth to one of my kids, so we never had sex. And if you don't believe me, why just ask my buddy and mentor Billie Boy AKA Bubba Ckinton.
I text this kind of stuff all the time to my fellow workers. Strictly business.
LOL!!!
I would be sent to MEO before I hit SEND with that message.
——————————————————————————>
Sounds like a line he picked up off a Barry White album.
FRee Advice to his defense attorney:
1. Plead he is a Mormon
2. He hit meant to send the text to THE WIFE
3. Somebody borrowed his cell phone.
I saw Kilpartrick and attorney on TV last night and I thought I was looking at Dennis Kucinich with a DNC Club Bouncer.
The Stored Communications Act, 18 U.S.C. Chapter 121, referred to by Kirkpatrick’s lawyer, Dan Webb, prohibits disclosure of stored electronic communications, subject to a number of exceptions, including appropriate subpoenas by law enforcement agencies. From the little this article says, it appears that the communications were initially disclosed in a manner not allowed by that act. From there the argument runs that, since the Federal Government discovered them from an illicit source, it couldn’t repair its case by using legally appropriate procedures to obtain them. It will be interesting to see how the issue comes out.
He will cry racism and then move up within the democrat party.
Even the local black media said that he’s burnt toast.
“The world is full of people who are in the habit of exchanging salacious phone calls, e-mails and text messages,” he said. “It doesn’t mean they are having an actual relationship. Did they say (under oath) they didn’t have physical sex, or have no personal relationship or interaction, at all?
I guess it’s going to be more “...It depends on what the word “is” is...”
Was this phone issued by the state, or a personal one that he paid for? I would think the messages would be state property if they are paying for the bill. Wouldn’t they technically “own” them? I would think it would be something like emails on a state computer. They just take it back, and anything on it is theirs.
If you would like to be added or dropped from the Michigan ping list, please freepmail me.
"I've been dreaming all day about having you all to myself for 3 days. Relaxing, laughing, talking, sleeping and making love."
Yeah, that sure is ambiguous.
Ambiguity means "straightforward, easy to understand," right?
During the whistle-blower suit, Kilpatrick said Brown was "un- appointed."
Attorneys Criminals are so clever. A glimpse... "Inside the Criminal Mind" - Samenow.
I really can’t get too excited about him being gone because anyone they replace him with will probably be worse. Just the nature of Detroit politics.
Thanks grellis. I guess it depends on who appointed the judge and/or whether he accepts large bribes.
"He was not fired," he testified.
Why do we even need to waste taxpayer money on a trial? Based on the above alone, he is guilty.
I agree that that whether these text messages are admitted isn’t open and shut. I haven’t researched the Stored Communications Act, and because it’s relatively new, I doubt that there is much case law on it.
But it seems that applying the exclusionary rule and the fruit of the poisonous tree doctrine to a violation of the act would be quite a leap. Does the act provide a remedy for a violation? If so, then Congress never intended the exclusionary rule to apply in the event of a violation. The act clearly states that stored electronic communications are not discoverable in a civil suit. Skytel didn’t release the emails to Stephani until after the verdict was rendered against Kwame. It seems that Skytel may have violated the act, even though it released the messages under subpoena. But the exclusionary rule applies to state actors. Can the civil court be deemed a state actor? Did defendant Kwame raise the act in the civil suit as an objection to releasing the messages? If not, then the issue may have been waived. Also, when Kwame was first elected, he stated that all city communications were public. Could a waiver of the act be inferred from that statement?
Dan Webb has raised a very interesting argument for suppression of the messages. This would make a very good law review article.
Interesting analysis. Thanks.
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