Patriots Versus Bureaucrats

by Thomas Temple

  Stoddart: “Yes, Your Honor”

  Judge Kimball: “Then would this individual so identify himself to the court.”

  A tall distinguished looking gentleman rose to his feet and responded in a deep baritone voice from the rear of the courtroom, “Nelson Franklin Pike, Your Honor.”

  After a stunned silence, Judge Kimball spoke, “Please approach Mr. Pike.”

  “Thank you, Your Honor,” was the response of one of the country’s most dangerous lawyers as he made his way to the front of the courtroom.

  Stoddart. “If it pleases the court, I can provide a summary of Mr. Pike’s qualifications.”

  Judge Kimball. “That will not be necessary Mr. Stoddart. I used Mr. Pike’s textbook on criminal procedures in law school. Are there any objections from the defense?”

  Winthrop: “Our only objection would be that we are entitled to a fair and speedy trial, we have already impaneled a jury, and a delay would be prejudicial to the defendants. Certainly, the State will ask for a recess so that Mr. Pike can prepare for trial.”

  Stoddart: “The State is ready for opening statements.”

  Judge Kimball: “Mr. Pike, please approach the bench and raise your right hand.”

  Nelson Franklin Pike was duly sworn in as a special prosecutor for Plymouth County and granted temporary membership in the bar of the State of Iowa.

  The jury was recalled to the courtroom and Judge Kimball advised them that Mr. Pike would be assisting the State in this case. Since it was almost 4:00, the Judge deemed that the jurors would be excused for the day and that opening statements would be made when the court reconvened at 9:30 am tomorrow. Again, he instructed the jurors not to discuss the case with anyone.

  Meeting briefly at the law offices of Frederick H. Krugman, a heated exchange took place between Fast Freddie and Jerome Foster Winthrop III. Krugman’s recommendation was that Jones and Masten immediately offer to plead guilty and try to cut a deal with Stoddart that would not involve jail time. Winthrop was vehemently opposed, believing that the State’s case was weak and that Nelson Pike’s addition to the prosecution team only proved how desperate Stoddart was. Winthrop was convinced that Pike was there only for intimidation and not substance. Jones and Masten decided to go with the recommendation of the Government lawyer. The trial would begin tomorrow as scheduled.

  Tuesday, March 4, 2014

  9:30 am

  Judge Kimball: “Is the State ready to proceed?’

  Pike: “We are, Your Honor.” Nelson Pike was indeed there for substance, not merely intimidation as Winthrop had surmised.

  Nelson Pike had dressed with great care for his first day in front of the jury. Gone was the expensive Rolex watch, replaced by a modest Timex, the impressive dark suit was left in its garment bag and instead he wore a modest gold blazer with a white shirt, a black and gold striped tie, and black trousers. Attached to one lapel of the blazer was a small US flag pin and a small State of Iowa pin adorned the other lapel. Of course it was just coincidence that the black and gold outfit selected by Nelson Pike also happened to be the official colors of the Iowa Hawkeyes.

  Pike began the State’s opening statement with a modest introduction of himself and his background, including his childhood growing up in a small farming community in the Texas Panhandle. He mentioned in passing that among other farming activities, his family raised and sold pigs. He looked and sounded like the gentle uncle that everyone knew. Then he began to outline what the State would prove and why it was such a serious crime for an individual to knowingly endanger the livelihood of fellow citizens while acting under the power of the United States Government. Pike presented this outline with a great deal of facts that the State would prove and did not once refer to any notes or leave the gaze of the jurors. After starting on a gentle and friendly note, Pike was literally roaring with indignation by the end of his opening statement and that in all of his fifty years at the bar, this was a case that demanded justice above all others because it was the Government committing crimes against its own honest citizens. Had the jury gone into deliberations at that point, the State could have asked for and received the death penalty against the accused. Fast Freddie mused that he was wise to get paid a large retainer from Jones and Masten before the trial began.

  Judge Kimball: “Mr. Winthrop, are you ready to proceed?”

  Winthrop: “Yes, Your Honor, I am.”

  Jerome Foster Winthrop was resplendent in his expensive three piece suit, razor haircut, and a Piaget wristwatch. He would have looked very formidable in a Federal District Court in Washington, DC. In State District Court in Plymouth County, Iowa, perhaps not so much. Winthrop went through the usual innocent until proven guilty, the burden of the State, the benevolence of the US Government, employees only doing their duty arguments. To himself he sounded credible and confident. The jury pegged him as a pompous dandy from back east. Stoddart thought to himself, “so far, so good.”

  Judge Kimball ordered a thirty minute recess and excused the jury. It was only 10:45 am when the jury returned and the State was ready to call its first witness, Betty Ross.

  Betty Ross took the oath and sat down in the witness seat. Nelson Pike began his direct examination with the usual questions about where she lived, her occupation, current family and their involvement in the family farming operations, and her deceased husband. Winthrop wisely did not object to any of this questioning since there would be nothing to gain by making a pest of himself at this point in the trial. When Pike began to ask questions about the raising and marketing of swine on the Ross family farm, Winthrop became more aggressive and tried to object to virtually every question that involved the swine operations. Judge Kimball patiently overruled these objections until it became obvious that Winthrop was only seeking to disrupt the State’s narrative of the alleged crime and not provide any valid legal reason for the objections. Rather than embarrass Winthrop in the presence of the jury, Judge Kimball excused the jury for lunch and when they departed he ordered all the attorneys to an immediate conference in his chambers where he made it abundantly clear to Jerome Foster Winthrop III that he would not tolerate these disruptive and delaying tactics by the defense and would not hesitate to hold the defense in contempt should such gratuitous and obnoxious behavior persist. When the lunch recess ended a chastened Winthrop kept largely quiet during the remainder of Betty Ross’ direct examination.

  Winthrop decided that he would aggressively challenge the testimony of Betty Ross. The basic problem with that approach was that Betty had testified to facts and was not a legal expert on the swine laws of Iowa. She was also a very sympathetic and credible witness. Winthrop made such little progress during her cross-examination that Pike passed on the opportunity to re-direct.

  William and Peter Ross followed their mother to the witness stand and the direct and cross examinations garnered similar results for the State and the defense. Their testimony did help Pike establish a pattern of credibility of his witnesses and emphasize that a whole family had been victimized and not merely one individual. The completion of the cross examination of Peter Ross ended at 4:25 pm and since Pike offered no re-direct, Judge Kimball excused the jury for the evening. The trial would continue tomorrow at 9:30 am.

  Wednesday, March 5, 2014

  9:30 am

  Judge Kimball gaveled the opening of the court and asked the State to present its next witness.

  Pike called Mrs. Angie Smithers to the witness stand. She represented the second criminal count against Jones and Masten. Pike wound her through testimony in which it was established that she owned a farm that was involved in the production and marketing of swine. Mrs. Smithers, a widow of seventy-four, testified that she had to sell off her pigs prematurely because she could not afford to feed them due to the onerous requirements of the grain storage rules imposed by the OSHA memo of 2011. With only herself and her youngest son, Wilbur, to work the farm, the burden of the suffocating paperwork dictated by OSHA effectively removed her from the swine bu
siness. The next set of questions was devastating to the defense:

  Pike: “Mrs. Smithers, you stated that only you and your youngest son, Wilber, were available to work your small farm?”

  Smithers: “Yes, that is true.”

  Pike: “What about your oldest son, James, didn’t he used to work the farm with you?”

  Smithers: “Yes, Mr. Pike, but his Army Reserves unit was called to active duty and he was killed in Afghanistan in 2010.”

  Pike responded in a low and gentle voice that sounded more like a prayer than a question, “I’m very sorry for your loss Mrs. Smithers. We are all grateful for your son’s service and sacrifice. You’ve given the life of your eldest son for the country and now they want to take your farm too?”

  Winthrop.” Objection, irrelevant and inflammatory!”

  Pike: “I withdraw the question, your honor.”

  Judge Kimball: “The jury will disregard the last question.”

  Winthrop wanted to get Angie Smithers off the witness stand and out of the view of the jury as soon as possible so he passed her without cross examination.

  Judge Kimball: “Is the State ready to call its next witness?”

  Steven Stoddart arose and stated, “The State now calls Professor Eugene Lerner as an expert witness for the prosecution.”

  Stoddart spent the next thirty minutes establishing that Professor Eugene Lerner of the Drake University School of Law was indeed an expert in the matter before the court. Lerner was a full professor who taught administrative law and had written several law articles for both the Iowa and American Bar Associations dealing with criminal violations that arise from improper use of authority.

  Winthrop then examined Professor Lerner for another twenty minutes before Stoddart tendered Lerner as an expert, with no objection forthcoming from the defense. Judge Kimball quickly granted Stoddart’s request and recessed the court for lunch.

  Judge Kimball gaveled the court into session at 1:30 pm and directed the State to proceed with its witness.

  Stoddart spent about ten minutes reviewing the general area of administrative law, laying a foundation upon which Lerner could expand. Then Stoddart went for the kill shot.

  Stoddart: “Professor Lerner, have you reviewed statements made by the defendants in this case?”

  Lerner: “Yes I have.”

  Stoddart: “Would you please identify those documents?”

  Lerner: “Those would be State’s exhibits 4438 through 4445.”

  Stoddart: “Your Honor, the State offers the court exhibits 4438, 4439, 4440, 4441, 4442, 4443, 4444, and 4445.”

  Winthrop: “We object strenuously to this surprise since these documents have not been produced to us as required by the criminal code of procedure in Iowa.”

  Before Stoddart could respond to the objection, Judge Kimball ordered the bailiff to remove the jury.

  After removing the jury, Kimball turned to Stoddart for his response to Winthrop’s objection and asked, “What is the State’s response?”

  Stoddart: “Your Honor, these exhibits were provided by the US Government in a now settled legal matter that was adjudicated in this very court and bear the Bates stamped number provided by the Government. My office forwarded these documents to the counsel for the defendants on January 29, 2014. Here is the receipt of said documents signed by Frederick Krugman at 3:30 pm on that same date. Therefore, it is preposterous that Mr. Winthrop claims surprise and withholding of evidence.” Nelson Pike smiled to himself and thought, “This kid can really handle himself.”

  Winthrop was really flustered and exchanged accusatory looks with Krugman. It didn’t matter, they had been badly outmaneuvered and the evidence would surely be allowed.

  Judge Kimball: “The evidence is admitted, bailiff return the jury and the witness.”

  Stoddart then painstakingly led Professor Lerner through all of the emails between Jones, Masten, and their superiors. These documents were displayed on the courtroom projector in full view of the jury. There could be no doubt as to the intent of the defendants. To quote one exchange between Jones and Masten, “Bill I also saw the memo from the legal department advising us to get as many settlements as possible before somebody questions the legality of our activities. These fucking rich farmers are there for the plucking if we just squeeze them hard enough. It looks like a good year for our bonuses.” Masten’s response: “I hear ya, jeeze do these guys whine when you put the bite on them. They have the balls to quote the law to us!! Don’t they know that we’re the fucking law! Besides, I need my bonus for a new car this year.” These were just a few of the examples that led Professor Lerner to conclude that the defendants not only broke the law but also conspired to break the law.

  Winthrop fumbled through a disorganized and rambling cross examination. This is not a good trial tactic when you are confronting an expert witness. It was now 4:25 and Judge Kimball asked Stoddart if he wanted to re-direct or wait until the morning. Stoddart elected to wait until morning. Winthrop was relieved by Stoddart’s decision because it might give him another crack at Lerner, depending on State’s redirect.

  Winthrop and Krugman worked into the late hours on Wednesday evening, looking for any line of attack to the devastating evidence that had been presented that afternoon. They came up with a few items that could work in their clients’ favor and had at least some hope that tomorrow would be a better day.

  Thursday, March 6, 2014

  9:30 am

  Winthrop looked around the courtroom and wondered where Professor Lerner was.

  His apprehension turned to panic when Judge Kimball gaveled the trial open and asked Stoddart if he had any redirect for the witness.

  Stoddart: “No Your Honor, we have no further questions for the witness and since the defense did not reserve the right to recall the witness during the cross examination we released him.”

  Winthrop rose and objected but he knew it was useless since he had indeed not reserved his right to recall the witness, relying instead upon the State’s redirect to provide him that opportunity. Since the State had decided not to redirect, he was out of luck. Judge Kimball overruled the objection and asked if the State was ready to call its next witness.

  Nelson Pike rose to his feet and made Winthrop’s day even worse. “Your Honor, the State rests.”

  Now Winthrop was really in a bind because he had planned to call his own expert, Professor Wilson Honeymeade of the Harvard School of Law, to testify that the actions of the defendants, even if unethical, did not rise to a criminal offense. Winthrop asked the judge for a thirty minute recess in order to produce his witness. Judge Kimball was understanding and granted the request, but Winthrop was beginning to look like a complete ass to the jurors.

  At 10:25 Professor Honeymeade was sworn in as the defense’s first witness. Winthrop spent forty-five minutes qualifying the professor as an expert. Stoddart and Pike made no objections since they were anxious to move along, sensing that the jury had already made up their minds.

  Winthrop’s direct examination of the professor took almost two hours as Honeymeade pompously and condescendingly lectured everyone on the finer points of administrative law. The professor was asked no questions on the Iowa swine law and this did not go unnoticed by Pike and Stoddart. Winthrop completed his direct examination by 12:30 and Judge Kimball ordered a recess until 1:45 pm.

  Nelson Pike spent only fifteen minutes in cross examining the professor. First he established that the Professor had very limited knowledge of the Iowa swine law, and secondly he successfully impeached the Professor’s credibility by referring the Professor to his own textbook and a white paper that he had prepared for the American Bar Association. Both of the publications contained inconsistencies with the sworn testimony that Honeymeade had just delivered. Winthrop tried to rehabilitate his expert on re-direct, but the damage had already been done.

  Winthrop was now in a difficult position in that the only witnesses he could possibly call to testify were the defendants them
selves. None of the higher ranking officials at OSHA or the Labor Department wanted any part of being cross examined in this case. Pike would have had a field day with them on the stand. He decided to rest. Fast Freddie didn’t much care since he had already cashed the large retainer checks from the defendants.

  It was now 2:30 pm and Judge Kimball declared a forty-five minute recess for the attorneys to prepare their closing arguments, which would be limited to thirty minutes each.

  At 3:15, all parties and the jury returned to the courtroom. The State elected, as was their option, to split their closing argument into two fifteen minute segments, one before the defense’s argument and one following.

  Stoddart rose and took the jury through a very concise and well organized presentation of the facts of the case and the specific violations by the defendants, highlighting the damning evidence of the emails.

  Winthrop tried to put on a brave front and pushed the idea that reasonable doubt really existed. He lectured the jury on the opinions expressed by Professor Honeymeade and appealed to them to give great weight to such a notable and respected expert.

  Nelson Pike finished the trial in the same manner in which he had started. First there was the kindly uncle from next door and then he transformed into a bastion of moral outrage. His final remarks on the opinion and testimony of Professor Honeymeade were brutal and to the point, “Professor Honeymeade tells you that Jones and Masten should be acquitted because they were just following orders. That argument was rejected at Nuremburg and it should be rejected here in Plymouth County.”

  After receiving final instructions from Judge Kimball, the jury retired for deliberations at 4:30 pm. It was expected that the deliberations would probably be continued the next day. At 6:30 pm the jury requested and received dinner in the deliberation room.

  At 7:48 pm the buzzer went off at the bailiff’s station. It was the two buzzes that indicated a verdict had been reached. All parties were summoned and present by 8:10 pm.