Mayor would attack messages' authenticity

Mayor would attack messages' authenticity Prosecutor's burden: Prove he, Beatty really typed them BY JOE SWICKARD and ZACHARY GORCHOW • FREE PRESS STAFF WRITERS • March 21, 2008 If perjury charges are filed against Detroit Mayor Kwame Kilpatrick or his former aide Christine Beatty, defense lawyers are preparing to make prosecutors work hard to prove whose thumbs were on the keys when racy text messages zipped between the pair's paging devices. "That's something the prosecution has to prove," said Mayer Morganroth, attorney for Beatty, the mayor's former chief of staff. "It's not a defense strategy or tactic. It's an absolute requirement for the prosecution that they prove every element -- each and every element." Kilpatrick alluded to that this week as he awaited Monday's announcement by Wayne County Prosecutor Kym Worthy on whether she will file criminal charges. "There will be a lot of conversations about texts and the authenticity of all of it," he said Tuesday in a brief exchange with reporters. "So I'm looking forward to having that conversation at a later date." Defense lawyers will deconstruct any charges and "take that case apart inch by inch," predicted Mt. Clemens criminal defense lawyer Brian Legghio, a former federal prosecutor who is not involved in the investigation. Worthy's investigation follows a Free Press report in January that revealed damaging text messages between the mayor and Beatty. The messages showed the pair lied at a police whistle-blower trial last summer when they denied having a sexual affair and sought to mislead jurors about whether one of the cops, Gary Brown, was fired. The mayor agreed to settle that suit and another for $8.4 million within hours of learning that a lawyer for the cops had obtained copies of the text messages. Legal fees pushed the cost to taxpayers to more than $9 million. Detroit's City Council members say they were never told of a secret pact to hide the messages when they were asked to approve the deal in October. Council President Ken Cockrel Jr. said Thursday that if Worthy issues charges, it could affect the council's investigation. The council has ordered Kilpatrick, Beatty and several attorneys who defended the city and Kilpatrick in the whistle-blower suits to appear before it in April. Anyone charged might not be able to appear because doing so could complicate the criminal proceedings, Cockrel said. "That could potentially be very problematic," he said. Cockrel was interviewed by investigators from the prosecutor's office. He said Thursday he was asked about what information city attorneys gave the council and when it was given. Councilwoman Barbara-Rose Collins said Worthy should make her announcement immediately because she has said she knows what her decision will be. "This city needs to move on," Collins said. "It's hard for it to move on when she hasn't made" her announcement. Kilpatrick press secretary Denise Tolliver declined to comment on Worthy's plan to hold a news conference Monday. "We're going on, business as usual," she said. Kilpatrick supporters held a rally Thursday night at the Akwaaba Community Center in Detroit. They said the mayor addressed the 400 to 500 in attendance, including the Rev. Horace Sheffield. "We're gonna walk and hold hands with the mayor until the end or a new beginning," Sheffield said. Worthy's investigation has been cloaked in secrecy, but her office has made no secret of the fact that perjury is one possible crime it is reviewing. The mayor's Chicago-based attorney, Daniel Webb, did not return calls seeking comment on his defense strategy. Morganroth said he has not spoken with Worthy's office and has no idea what -- if any -- charges will be announced. "I heard so much I don't believe anything," he said. "I'll just wait to see what happens." Or maybe he won't see. Morganroth said he would be at a news conference Monday morning with another client, assisted-suicide advocate Jack Kevorkian, who wants to run for Congress. Perjury -- intentionally lying under oath, a felony punishable by up to 15 years in prison -- is not commonly prosecuted. But courthouse veterans say they see it routinely in trial testimony. Still, legal experts say that lies from major political figures are not easily ignored and note that Michigan's perjury laws cover lies about any matter in a witness' testimony, regardless of whether it concerns something important to the case's outcome. Comparing the text messages against the sworn testimony might seem an easy task, but veteran criminal defense lawyers said skilled lawyers like Morganroth and Webb likely would put prosecutors through the mill to prove the messages are real and that Beatty and the mayor actually typed them. "As far as this being a simple case to prove, that's the opinion of people who haven't tried one," Detroit defense lawyer Jeffrey Edison said. "If it were so simple, why is it taking the prosecutor so long in putting this together?" The text message records -- kept by Mississippi-based SkyTel, the city's communications provider -- show the messages came in and out of Beatty's city-issued paging device. But several lawyers said prosecutors would have to prove the devices were in hers and the mayor's hands when the messages were typed. Legghio said the prosecution also would have to establish that the messages it views as damaging are placed in context with other messages, "making them part of a sensible dialogue." Birmingham criminal defense lawyer Neil Fink said that defense lawyers don't need to sway 12 jurors with such a strategy -- just one. "It would give a peg for a juror to hang his hat on if he wants to acquit," Fink said. "The prosecution needs all 12 to convict; the defense just needs one to" get a hung jury, he said, adding that going after one might work in a case involving a strong political figure. "Everyone is going to be thinking about Bill Clinton," Fink said. "He perjured himself and sexually manipulated a young woman and, look, he's treated like a rock star." Edison said going for a hung jury is an iffy tactic. "You try your case for an acquittal," he said. "You don't go for a tie. A hung jury is just temporary."