NOTE: Feaga is prosecutor Steve Feaga; and Kilborn is lead Siegelman lawyer Vince Kilborn.
To the extent it was winnable, lawyers for Siegelman and Scrushy lost the case in the first week of trial with their over-lengthy, ill-conceived and dramatic failure to break Nick Bailey.
I felt there was a real chance that Bailey would collapse into a backtracking puddle of sweat and tears from the relentless, pitiless pounding promised by the defense lawyers, thus leaving prosecutors hobbling to the finish. Though Bailey could play enforcer for his boss, you could see a sensitive side in his eyes. He’d been devoted to Siegelman and his family for years and the old feelings had not dissipated. He teared up twice during Feaga’s questioning, both times after being asked about Lori Siegelman.
The day before Bailey was to begin almost three days of cross examination, Kilborn boasted outside court that the witness would be “destroyed.” I suppose Vince’s tough talk was intended for Bailey’s ears, to make him think, ruin his night’s sleep and in every way soften him for the kill.
The next morning, to everyone’s surprise, Kilborn ceded Bailey to David McDonald, his younger partner. It was a disaster. McDonald, though a friendly, engaging sort, suffered from too many years of watching Vince, saw in Kilborn his model, and given the biggest stage of his career, tried to surpass his master in bombast and scorn. They say of a good actor that you forget he is acting. With McDonald, you never forgot. Here’s how I presented (in the next day's story) one aspect of his performance:
McDonald, Kilborn’s younger law partner, spoke with supreme confidence and apparent good cheer throughout, often joking and flashing his teeth with broad smiles.
Seemingly every lawyer in the room, even those prosecutors he accused of misconduct, was “fine,” as in, the “fine prosecuting team;” and Bailey’s “fine lawyer, George Beck.” U.S. District Judge Mark Fuller was “too young and too handsome,” according to McDonald.
Joseph Fitzpatrick -- a prosecutor with the Alabama Attorney General’s Office who like most of the lawyers in the room has not participated in the questioning -- was pointed at and described by McDonald as “the hero of the show.”
No one knew quite how to respond, so there were plenty of blank faces. McDonald, though, was having too much fun to recognize the failure of his smarm attack.
He opened his questioning by smiling at Bailey and telling the witness that over the next two days they would get to know each other and become friends. Then, like a one man good cop-bad cop, McDonald began shouting at Bailey. During the ensuing hours of cross-examination he played the schoolyard bully, repeatedly peppering Bailey with insults. Here, as we reported it:
In a friendly tone, (McDonald) frequently addressed Bailey as Siegelman’s “chauffeur,” “business-card holder,” and “gopher,” at one time ending a question with the phrase, “...while fulfilling your important duties as gopher, business card holder and chauffeur.”
To the extent McDonald’s questioning elicited laughs or smiles from those in the court, they usually followed Bailey’s retorts, sometimes issued with a grin.
“You forgot chauffeur,” cracked Bailey, seconds after being addressed as a gopher and card-holder….
But at the end of a day’s worth of often rambling, insult-filled questions from Siegelman lawyer David McDonald, Bailey appeared not “destroyed,” as McDonald's partner Vince Kilborn III predicted, but emboldened.
Bailey’s testimony ended dramatically, with McDonald rattling off a series of questions demanding that Bailey … admit that he was lying about Siegelman and others to avoid a length prison sentence.
“If you think I’ll sit here and lie about the people I care about to save my own ass, you don’t know me well,” Bailey shot back at McDonald.
It was just the sort of response the defendants didn’t want – the witness, pushed to righteousness, declaring that he hated testifying against people he cared about.
Kilborn, who rarely gets mad at reporters, flashed in anger when asked outside court if McDonald had, as promised, destroyed Bailey. Kilborn snapped that indeed Bailey was destroyed. “And we ain’t finished with that son of a bitch,” he said.
McDonald resumed his assault the next day, to no greater effect. By the time Scrushy lawyer Art Leach got to him, Bailey was locked in a gear called “you can kiss my ass.” Leach applied the same strategy as McDonald, if in a more direct, professional fashion. I thought I detected a glint of fear in Bailey’s eyes when the former prosecutor approached the podium, but if so, he conquered it.
Leach, even more so than McDonald, repeated questions, changing a word or two but forever getting the same answer he hadn’t liked the first time. For example, Leach asked Bailey if he had any documents supporting his testimony that Scrushy gave two $250,000 checks to Siegelman and that, in return, the governor appointed Scrushy to the CON board.
“The checks, Mr. Leach,” answered Bailey, his derision the equal of the lawyer’s. Then he added another: Siegelman’s letter appointing Scrushy to the CON board.
This, from our story the next day:
Leach, appearing surprised by the answer, continued to ask the question, but with his directions to Bailey said that when responding, the checks and the appointment letter didn’t count. It was like asking someone what they had for breakfast but telling them they couldn’t mention the eggs. Prosecutor Steve Feaga objected, and Fuller sided with him.
Near the end of Leach’s cross he let his frustration get the best of him. He accusingly asked Bailey if he was “on medication.”
The question might have been appropriate had Bailey appeared dazed, disoriented or in some way not in control of his faculties. But the witness, especially considering how he held up under the sort of grilling that could turn many to mush, didn’t strike anyone as crazy. Fuller jumped in before Bailey could answer. He ordered Leach to the bench for what looked like a whispered tongue lashing. The judge told the jury to disregard Leach’s question, and Bailey never answered it.
Even as the defense lawyers belittled and ridiculed Bailey, they also sought to plant him as the administration Machiavelli, the one pulling the trigger on every bad act, from the motorcycle cover-up to the foundation’s re-birth to G.H. Construction.
At closing, Feaga delivered the memorable line, “They couldn’t decide if he was a chauffeur or a financial wizard mastermind.”
Outside court – after all, he said nothing in court – Siegelman blamed Bailey for the re-birth of the foundation and its secret machinations. I was stunned, since we had reported years before and documents were presented in court leaving no doubt that Siegelman was in charge of re-born foundation and its fundraising.
Blaming Bailey for the foundation? There was no way to write as much as I had on Siegelman without occasionally asking myself if I was being too hard on him. And then he would say something like that, and I realized that no, I wasn’t too hard on him. I was correct to have zeroed in on Siegelman halfway into his term and to have stayed on him.