"It's very hard to get an acquittal when there are films and tapes. There's nothing as dramatic as that," says New York University Prof. Stephen Gillers, one of the foremost criminal law experts in the United States.
In the first of six scheduled "Abscam" trials -- this one under way in federal court here -- videotaped and sound-recorded material is, in effect, the prosecution's key "witness."
Four men are on trial in the New York Courtroom: US. Rep. Michael O. Myers (D) of Pennsylvania; Mayor Angelo Errichetti of Camden, N.J.; Philadelphia City Councilman Louis Johanson; and Philadelphia attorney Howard Criden. In all, 19 suspects have been indicted, including six congressman. Other indictments are expected as the separate trials proceed.
The four defendants here are charged with conspiracy, bribery, and illegal interstate commerce. The conspiracy count says the defendants deprived the United States of the faithful and honest service of a congressman, specifically Mr. Myers. The bribery count says that Myers, aided by the three other defendants, received money in return for being influenced. The third count charges all four men used interstate commerce, in effect, to promote bibery.
If found guilty on all three counts, the defendants face maximum penalties of 15 years in prison.
The technological evidence is dramatic and damaging -- and at times farcical. But what really counts is whether the jury believes the defense.
The four main defense attorneys -- one for each defendant -- took turns trying to prove that a key prosecution witness -- undercover agent Melvin Weinberg, a convicted swindler -- was worse than "the worldhs biggest liar" that he once bragged in an interview he was.
In blistering cross-examination of the stocky but dapper Mr. Weinberg, who was used by the FBI to bait its trap for unwary public officials in its so-called "Arab scam," the defense lawyers have variously attacked his credibility by saying:
1. That in order to show the defendants in the worst possible light, he purposely deleted portions of telephone conversations he tape-recorded. Mr. Weinberg denies this, explaining that gaps in the voice reordings were due to his dropping the tape recorder at one point and to normal mechanical delays in starting the recorder at other times.
2. That Weinberg had been a "con artist" since the age of 20, when he drove around breaking windows so his father, who was in the glass business, could fix them. Weinberg's response to that was to call himself the "McDonald's of con men" because he had "franchised" one scheme to other swindlers while working as an agent for the FBI.
3. That Weinberg was trying to play a kind of reverse scam on the FBI -- trying to earn money from the defendants at the same time he was drawing a salary from the government agency. The irrepressible witness, in fact, stunned the courtroom by saying he had received a $25,000 "kickback" from Mayor Errichetti. But Weinberg denied he was really working for anyone but the FBI in Abscam.
According to Professor GillerS, attempting to discredit any witness for the prosecution is really an effort to change the focus of a trial from the culpability of the defendant to a question of the integrity of the witness. "It tries to say, in essence, the prosecution is using 'bad people' and therefore the defendants are innocent," he explains.
But in the current Abscam trial, he adds, "technlogy" really is the key witness. Having tapes "is very convincing to a jury."
One videotape shows Congressman Myers taking money from an FBI undercover agent in return for promises of political favor.
Another defense being used is that Mr. Myers and the others had "no criminal intent" -- that, although their clients admit to having taken money from the undercover agents, they never intended to return any political favors for it.
However, this defense in and of itself is an admission of guilt in most trials, and specifically in this one, experts say, because it is an implied admission of larceny. If Myers and the others took $50,000 from the undercover agents in return for the promise to help a (bogus) Arab millionaire get immigration help, and had no intention of carrying out those promises, this would be larceny, pure and simple, they say.
The advantage to making such an admission, say trial experts, is that the defendants would be much less likely to be convicted of the bribery charge. For myers, at least, conviction of bribery would result in automatic dismissal from office.
On the other hand, some close observers feel that the defense attorneys are only throwing up this particular line of defense as a "red herring," and that if the prosecution's case is indeed an iron-clad one, the issue of "entrapment" will be the main defense. But the two defenses conflict because the first shows an admission of guilt while the second argues that the defendants were trapped into doing something they would nto normally do, say Gillers and others.
Entrapment often is a poor defense, says Gillrs, not only because it involves some admission of guilt, but perhaps more important because it must be proved that the defendants are essentially honest people who have been almost literally been pushed into doing something they would not ordinarily do.
He cites the case of Sherman v. United States, which went before the US Supreme Court in 1958, involving narcotics trafficking. The court ruled that entrapment had been used because the undercover agent had repeatedly appealed to the defendant's sympathy, pleading that he was experiencing immense physical suffering.
But in Abscam, similar overt overtures from undercover agents apparently are missing. Testimony so far indicates that Mr. Errichetti steered politicians to undercover agents.
In related developments, prosecutor Thomas Puccio said taped evidence he will introduce will show US Sen. Harrison A. Williams Jr. (D) of New Jersey "participating in a crime" with Mayor Errichetti. so far, Senator Williams has been linked by the news media to the FBIhs Abscam probe, but he has not been indicted. The senator has denied he participated in any Abscam crime whatsoever.
Two other Abscam trials get under way Sept. 2 -- one here in Brooklyn with US. Rep. John M. Murphy (D) of New York and US Rep. Frank Thomspon Jr. (D) of New Jersey the defendants. On the same day, US Rep. John W. Jenrett Jr. (D) of South Carolina will go on trial in federal district court in Philadelphia for his alleged part in Abscam.