CHAPTER SIXTY FIVE
Recess
“I’m going to turn down the U.S. Attorney’s offer of immunity.”
“Are you sure?”
“Joel, I don’t need immunity. I didn’t do anything that requires immunity. Don’t you believe me?”
“I heard the tape. I know you told me the recording has been altered, but it sounds authentic, and you know the FBI is going to claim it’s the real thing.”
“Just let Blackburn know I rejected his offer. Tell him, ‘Game on.’”
“That’s like waving a red flag in front of a bull.”
“As my friend Jack Collins would say, “then he can go feck himself.”
Game on. Had I actually said that? I realized Joel believed I was making a fatal blunder. He had probably briefed Mike Bollinger on the government’s offer and discussed how the firm could extricate itself from whatever fall-out would come its way from such an indelicate situation. Even Nicky told me to take the offer. When I insisted that I was innocent and had no need for immunity she reminded me of what she heard me tell my mother whenever she asked if a celebrity in the limelight was guilty of the charges lodged against him. I invariably replied, everybody’s guilty of something; the real question is can the prosecutor prove it?
I was guilty of many things, none of them to my knowledge involved crimes for which I could be prosecuted by the U.S. Attorney. Therefore, acceptance of immunity was meaningless. I had enough of the prosecutor, the FBI and the entire affair. So I was ready to deal with whatever Blackburn thought he had.
The Cinaglia trial was in its fourth week. Like any proceeding of this magnitude it had its moments of high drama that broke the monotony of the tedious evidence a prosecutor had to present in order to establish all the requisite elements of the crime. My testimony promised to be one of those moments. The court room was packed. The VIP section had been enlarged to accommodate the politicians and media celebrities who sought some face time, if even in background shots, or brief interviews to pontificate on the aftermath of whatever dramatic revelation my testimony would expose.
When I entered the courtroom with Joel Solomon I smiled at my small but devoted fan club, Mike Zeebooker and Carlota, Bob and Marti Gronski, State Representative Phillip Wallander, District Attorney Susan Romansky and Nicky. I stopped to acknowledge them and Bob Gronski whispered, “Bernie, you’re the best man I know. Don’t worry, you’ll be fine.”
I was touched by his concern and confidence in me; I hoped I was worthy. Nicky smiled but I could detect her concern.
Senator Cinaglia gave me a nod. I noticed that the senator’s twitch was more pronounced now, than it was at the beginning of the trial. The senator’s girlfriend-fiancee sat behind him placing her hand, now sporting a diamond ring that sparkled like a crystal chandelier on the senator’s shoulder.
I surveyed the VIPs as I took my seat near the front of the courtroom. Jack Collins nodded and gave me the thumbs up as I walked past him. In addition to the usual suspects, the governor and Congressman O’Grady and their staffs was U.S. Senator Spellman. Seated immediately to his left was Samantha Binnager. I could not conceal my surprise. “What’s wrong?” Joel Solomon asked.
“That woman, sitting beside Senator Spellman, she’s Samantha Binnager, she can connect Robert Worthington to the White Haven mess.”
“Focus on what’s going to happen today. We can discuss that later.”
“All rise!” the court officer announced as Judge Peskin took the bench.
“Be seated. Quite a crowd this morning I see. Must be something interesting about to happen,” the judge said as he took his seat.
“Mr. Blackburn, you may call your next witness.”
“Thank you your Honor. The Government calls Bernard Green.”
I walked over to the witness stand. I tried to conceal my limp, not wanting the prosecutor to notice even the slightest sign of weakness.
Blackburn’s direct examination began with the basic background information necessary to acquaint the jury with the witness and his involvement in the case.
“Mr. Green do you recall meeting with the defendant at his home at Governor Slattery’s request?”
Here it comes.
“Mr. Blackburn, I remember meeting with Senator Cinaglia at the governor’s request, but as I told you on previous occasions, the meeting just happened to occur at the Senator’s home.”
“Yes that’s right, you did tell me that. Things just happen to you. Did I get that right?”
“Objection.”
“Sustained. Mr. Blackburn is this really necessary?” Judge Peskin did not tolerate incivility in his courtroom.
Blackburn’s remarks were designed to demonstrate his disbelief in my denial that the meeting had not been planned to be at Cinaglia’s home. The implication was that we wanted the meeting to be off the grid for some clandestine purpose.
After another half hour of questions, about the meeting, many of them repetitive, Blackburn asked, “Mr. Green, you testified that the defendant told you he believed the FBI was listening to your conversation, is that right?”
“Yes.”
“Did you believe that?”
“No. That is not until a few days ago when you played a recording of the conversation.”
“So, when you were meeting with the defendant you were not concerned that you had to be careful about what you said during your conversation?”
“Mr. Blackburn, I was not concerned about the subject matter of my conversation with the senator, because it involved a zoning variance that his neighbors had objected to.”
“But Mr. Green, the recording of that conversation reflects that you and the defendant talked about another subject and then you and the defendant went to the sub-basement.”
“Objection, is there a question?” Jack Silver, Cinaglia’s attorney, continued. “Your Honor, what tape is counsel referring to?”
“Sustained. Mr. Blackburn, rephrase your question,” the Judge was beginning to tire of the line of questioning.
“Certainly, your Honor. I would like to play the FBI tape recording of Mr. Green’s meeting with the defendant, and then ask the witness some questions.”
Silver jumped to his feet. “Judge, we received no notice of a tape recording of a meeting between the senator and the witness as part of the discovery from the Government.”
“Mr. Blackburn?” Judge Peskin asked.
“Judge it was included in Government Exhibit 278. We cannot be responsible for defense counsel’s lack of diligence in reviewing all of the discovery we provided.” Blackburn’s response was unnecessarily snarky.
“Your Honor, that Exhibit contained 5000 hours of FBI recordings. As you know, I was only retained three weeks prior to trial. It’s outrageous for the prosecutor to select a single conversation to use at trial without any notice to the defense,” Silver could barely contain his fury.
“Counsel approach,” Peskin waved the attorneys to the bench.
“Mr. Blackburn, I do not appreciate these kinds of shenanigans in my courtroom. I have a mind to preclude you from introducing this tape into evidence.”
“Judge, with all due respect we provided defense counsel with all of the discovery in accordance with your pre-trial procedures. We are under no obligation to inform counsel what evidence we intend to use at trial, provided that it was included in our proffer.”
“Mr. Silver, I’m afraid Mr. Blackburn is correct. Would you like to adjourn the hearing to review the recording before we proceed?”
“Judge, would you allow me a moment to consult with my client?”
As Silver and the senator discussed the matter at the defense table the Judge gestured the prosecutor to come closer. “Mr. Blackburn, if I were you, I wouldn’t pull any more crap. You do not want to see what happens when I get pissed.”
Silver rose to his feet and said, “Judge, if this is the only conversation the Government intends to rely upon we have no objection to proceeding.”
“Mr. Blackburn, does the Government intend to play any other of the recorded conversations?”
“No your Honor.”
“Very well then, let’s proceed.”
Blackburn played the conversation he had played for me and Joel Solomon. When the governor heard his name mentioned on the tape he had to be restrained by Jack Collins.
“Mr. Green, will you tell the jury what the defendant gave you to take to the governor?”
“The senator did not give me anything to give to the governor.”
“But according to the tape recording the defendant clearly stated he wanted you to follow him to the basement and he said, ‘I have something for you to give to the governor,’ isn’t that what you heard.”
“Yes, I heard that on the tape, but the senator never said that to me.”
“So are you suggesting to the jury that they should reject the evidence they just listened to?”
“I’m testifying that the tape recording you played for the jury is not an accurate recording of my conversation with the senator.”
“So, the jury has to accept your word that a recording the FBI made is not accurate?”
“No sir.”
“Are you suggesting that there is some other evidence that supports your testimony, I assume the senator’s testimony?”
“Mr. Blackburn, while I am sure that if the senator takes the stand he would agree with me, I was not suggesting that the jury need rely on my and the senator’s testimony alone.”
“Well then, to what evidence are you referring?”
I pulled a miniature tape from my pocket and said,” I taped my meeting with the senator and the jury can listen to what actually was discussed.”
The courtroom gallery erupted. I could hear Bob Gronski say, “Way to go LT.”
Judge Peskin gaveled for order.
“Counsel, we will take a recess and I’ll see counsel and the defendant, and the witness and his counsel in chambers.”
CHAPTER SIXTY SIX
Judge Peskin’s Chambers
I had never been in Judge Peskin’s chambers before. My jaw dropped as I looked around at the assortment of animal heads, at least sixteen, hanging on all of the chamber walls that stared back at me.
“Mr. Green,” the judge said, “What do you think?”
“Your Honor, this is pretty impressive. Where did they come from?”
“From everywhere I’ve hunted over the past thirty years. Look at that one.” He pointed to an elk’s head with an enormous rack with two arrows, one shot through the shaft of the other, stuck in the antlers.
“I killed that elk with the first arrow, and shot the second arrow into the first one. Do you have any idea how difficult that is?”
“No sir.”
“If you think this is impressive, you should see all the trophies back at my house.”
I would already have nightmares from the collection I had endured.
“Gentlemen,” the judge said directing the lawyers to take seats at the conference table. He waited for the stenographer to signal she was ready. “For the record, we are in chambers. Would someone like to explain to me what is going on here?”
“Judge, my client told me and Mr. Blackburn that the FBI’s recording of his conversation with Senator Cinaglia had been altered. That it is not an accurate recording of what was discussed,” Joel Solomon responded.
“Mr. Blackburn, is that true.”
“Yes judge, that’s what he said, but Your Honor, do you really believe the FBI would do something like that?”
“Mr. Green, that tape you showed the jury, can you explain how it came to be in your possession?”
“I taped my conversation with the senator,” I replied.
“Was the senator aware you were recording the conversation?”
“I don’t know if he was. However, he told me he didn’t care if I recorded our discussion.”
The judge looked at me.
“Let me play the tape for you, I believe you’ll understand.”
“Go ahead.”
I played the tape and watched the reactions of the assembled group. Cinaglia nodded his head as if agreeing that my tape was authentic. Cinaglia’s attorney stared at the prosecutor with an expression that evoked disbelief the U.S. Attorney would present evidence that had been altered. Blackburn sat stone faced betraying nothing.
“Mr. Green, why did you tape your meeting with the senator?” Judge Peskin asked.
“A colleague suggested that one on one meetings with politicians were to be avoided if at all possible. Since I had accepted the assignment to convince the senator to change his plans to convert his basement into a pistol range, and the meeting turned out to be at his home, I thought it would be prudent to record the meeting and then use the tape to prepare a written summary later. When I was looking through my files for the summary, I found the tape. I guess I forgot to erase it.”
The judge shook his head and said, “Sounds to me like you received some sound advice from that colleague. I don’t know whether your failure to erase the tape was a lucky oversight or prescient, but in either event it presents credible corroboration that the FBI tape is not accurate. Mr. Blackburn do you have any explanation?”
Blackburn shook his head.
“For the record, the Government has offered no explanation,” the Judge said.
“Counsel?” Judge Peskin turned to Jack Silver.
“Your Honor, the defense requests that you declare a mistrial, and that all the charges against my client be dismissed, with prejudice. We ask that you refer the matter to the Justice Department for investigation of prosecutorial misconduct.”
“Mr. Silver, I will take your motion under consideration. For the record, I consider what has just been exposed to be a matter that goes to the very essence of the integrity of these proceedings. I am extremely troubled with the implications of a possible abuse of the process and how that may affect, and has already impacted, the lives and careers of all of the parties involved.”
“For now,” the judge continued. “I will recess these proceedings for the remainder of the day while I consider my ruling on the Defense’ motion. I order that no one tell anyone what was discussed in chambers. If I find out that anyone has leaked anything to the media, I will impose the most severe sanctions possible against the parties responsible. Is that clear?”
Everyone in the room nodded.
“Very well; we’ll return to the courtroom and I will inform the jury.”
As they walked out of the judge’s chambers I overheard Cinaglia say to his attorney, “Looks like Blackburn stepped on his dick!”
CHAPTER SIXTY SEVEN
Samantha Binnager Returns
After the judge recessed the trial the governor motioned to me. “What happened in the judge’s chambers?”
“I can’t tell you. Everyone has been ordered to keep it confidential.”
“You know somebody is going to leak everything that happened in there.” Slattery looked at me shaking his head. “I’ll bet you the judge leaks it to the press himself.
“Governor, ya know that Bernie has to obey the judge’s instructions,” Jack Collins interceded taking me off the hook.
“Governor, can you introduce me to Senator Spellman?” I asked changing the subject.
“Sure, but why do you want to meet that old fart?”
“It’s not that I want to meet him. It’s just that I need to speak to his companion.” I replied.
The governor looked over at Samantha Binnager. “Bernie, you dog. Your wife is right here!”
Slattery took me by the arm and walked over to Spellman. “I don’t think you ever met Representative Green. He’s one of the rising stars of our party,” the governor although speaking to Spellman never took his eyes away from Samantha.
“Nice to meet you young man, I’ve heard a lot of very nice things about you.” Spellman said taking my hand. “My assistant Samantha told me she met you when she worked in Harrisburg. Isn
’t that right Samantha?”
“Yes senator. Hello Bernie,” she said.
“Hi Samantha, I didn’t know you were working for the senator?”
“Yes, I’ve known Senator Spellman for a long time. When the opportunity to work as one of his legislative assistants came up, I just couldn’t refuse.”
“Young man, if there are any issues we can help you with on the state level, be sure to reach out for Samantha.”
“Thank you Senator, I’m sure I’ll be calling Ms. Binnager sometime soon.”
“Who was that woman with Senator Spellman,” Nicky asked when I joined her and the Gronskis.
“Remember the woman I drove home from the Hideaway the night I went to pick up Phil Wallander? That’s Samantha Binnager, she may be able to help Susan Romansky and the task force tie Worthington into the White Haven case. What’s wrong?” I asked seeing her expression.
“You forgot to tell me that she was so attractive.”
The judge sat in his chambers considering how he should proceed. Peskin took his judicial responsibilities seriously. Although he would never be considered for a vacancy on the Supreme Court, he had a keen sense of right and wrong and genuinely believed that litigants who came into his courtroom were entitled to justice.
Peskin knew there was no way to avoid declaring a mistrial. In reviewing his notes of the trial, he had concluded that the prosecution’s case was falling apart long before the proffer of the FBI recording that turned out to have been altered. Cinnaglia was without a doubt a gonif, however, the Government did not have requisite proof to establish that he had engaged in a conspiracy of corruption as stated in the indictment. Even if the jury saw the evidence differently, and Peskin doubted that, before the tape had been played there was little chance of conviction.
The tape - was Blackburn aware that it had been altered? If he was, Peskin would have to refer the matter for disciplinary proceedings. If Blackburn did not know the FBI would determine who had been responsible. Either way Blackburn’s once promising career was a thing of the past. The jury having heard the altered tape made it impossible for the case to proceed. He would declare a mistrial he would not, however, dismiss the charges with prejudice.
The Pa-la-ti-'shan Page 28
