FLASHBACK 2003: When Judge Sam ended the Olympic bribery trial, did he shift the blame?
The Scapegoat Theory
By Lynn Packer
In commemoration of City Weekly's 40th anniversary, we are digging into our archives to celebrate. Each week, we FLASHBACK to a story or column from our past in honor of four decades of local alt-journalism. Whether the names and issues are familiar or new, we are grateful to have this unique newspaper to contain them all.
Title: The Scapegoat Theory
Author: Lynn Packer
Date: Dec. 11, 2003
There he was in the courtroom, quoting scripture. Bill Taylor, Tom Welch’s attorney, likened the defendants in the Olympic bribery trial to the biblical goat that had all the sins of the Israelites placed upon its head. The “escape goat” or “scapegoat” was sent into the desert to bear the burden of human transgressions, the masses left behind cleansed of iniquity. Taylor told jurors that the purifying ritual “works very satisfactorily for everyone except the goat.”
When Salt Lake Olympic bidders got caught, red-handed, giving unauthorized cash and gifts to International Olympic Committee (IOC) members to influence their votes on who would host the 2002 Winter Games, questions quickly arose. Who knew about the payoffs and when did they know about them? More important, who participated in the palm-greasing campaign?
After the smoke began clearing from a 1999 ethics panel investigation, the Salt Lake Organizing Committee (SLOC) fingered two primary culprits. Tom Welch and Dave Johnson were expected to fall on their swords for the good of the Games they had played key roles in attracting.
But the self-proclaimed scapegoats did not wander off into the wilderness and make the sins of the bid process go “poof” in the night. They claimed the ethics panel report was not a real attempt to get at the truth, but merely a vehicle to pin blame. “It was written with one purpose: push two guys out there, cut them off and protect everyone else,” Welch said.
To add insult to their perceived injury, the federal government’s criminal bribery case centered on Welch and Johnson. They were accused of hiding the truth from the very people they believe were in on the scapegoat conspiracy.
But Welch and Johnson fought back in court to clear their names. The Olympic bribery trial showcased evidence for and against the scapegoat theory. Indeed, a lot more evidence would have been presented had the judge not tossed the case before a single defense witness took the stand. Part of the “everyone knew” evidence was crucial to Welch and Johnson’s plan to escape conviction. But it was also part of their strategy to prove their case in the court of public opinion.
Their story to clear themselves is like a recurring theme in several John Wayne B-Westerns: Tom & Dave (in white hats) tangle with the bad guys (the ones in the black hats) who were out to frame them for wrongdoing. Like the Duke in The Desert Trail, they’re attempting to expose “the real culprits.” Among the low-down, dirty varmints in Welch’s and Johnson’s view: former Gov. Mike Leavitt, and SLOC executive committee members Frank Joklik, Verl Topham and Spence Eccles. For good measure, toss in government prosecutors, who piled on later. In the end it was Welch and Johnson who talked the talk and walked the walk. Tom Welch had a John Waynelike swagger outside the courtroom (except on his “no comment” days), and he talked trash to prosecuting attorneys using television news cameras as his medium: “I don’t think they’ve enjoyed their stay in Salt Lake City,” he said. “This is a case of them overreaching from the beginning and now it’s come back to bite them.” And that was weeks before the case was dismissed.
Eleven of 15 felony counts in the bribery trial were based on the notion that Welch and Johnson concealed their alleged criminal conduct from their overseers and thus defrauded the board. If the now-acquitted defendants could show their superiors knew—or better yet participated—then most of the case against them would collapse.
As it turns out, one of those superiors, Spence Eccles, transformed himself into a witness for the defense after being called for the prosecution. Eccles never had to admit knowing or participating. He simply said he had delegated full authority to his management team—Welch and Johnson. If they concealed anything, they had the authority to do so, even if the executive committee disagreed with the tactic.
U.S. District Judge David Sam, by granting a mid-trial motion for acquittal, ran the prosecutors out of Dodge, tails between their legs. In a move just as remarkable as the rare granting of a motion to acquit, Sam chastised the prosecutors. In what was practically a religious ordinance, he removed the sins from Welch and Johnson—unscapegoating them as far as the law is concerned.
He actually tried to cleanse them of all their alleged sins, ethical and legal. Sam said he regretted that Welch and Johnson had been deprived, “because of the pending charges … of fully enjoying the fruits of your tireless efforts to bring the Olympics to our great state and to join in the celebration of the Games.” In truth, Welch and Johnson had been stripped of their Olympic status when a grand jury indicted them. Prosecutors had nothing to do with that. They merely piled on. Further, during the time the Games were being staged, the criminal case against them had been dismissed. By Sam. Only to be revived afterward by the 10th Circuit Court of Appeals.
Although the government reinforced the concept of Welch and Johnson as scapegoats, the alleged plan originated at a series of meetings at the Governor’s Mansion in December 1998, as the scandal was unfolding. The pair say they believe that members of the SLOC board of trustees, community leaders, then-Mayor Deedee Corradini and—above all—Gov. Mike Leavitt got together to control the damage by pinning blame solely on the two men most responsible for bringing the Games to Utah. They would accuse Welch and Johnson of improperly concealing the payout of $1 million in cash, college scholarships, living expenses, medical treatment and other benefits to IOC members voting on Salt Lake City’s successful bid to stage the 2002 Winter Games. That, they believe, is when they were made scapegoats.
Frank Joklik, former SLOC executive board member and former president—who replaced Welch in 1997 when Welch resigned because of a domestic violence incident—testified he was at the meeting. Joklik told the jury the pay-out issue came up during the discussion to fire everyone at SLOC, not just fire Johnson and remove Welch from his consulting position. But the latter choice was made. During a break in the trial, Joklik declined to give City Weekly more detail. Asked if Welch and Johnson had been made scapegoats during that meeting he just smiled and said options were discussed. Joklik himself was forced out as president but allowed to remain on the board.
“I’m wondering if they even needed to have such a meeting,” said one observer. “I don’t know [that] anyone consciously sat down and chose them. They’re just the likely candidates, the usual suspects. They’re just the people at the appropriate level that stood out. Like the Bennett Williams saying, ‘It’s the whale that spouts that gets harpooned.’ And they’re pretty much the spouters. All the people who had so much to lose sort of walked away from them and kind of left them there.”
The alleged scapegoats dueled in the media with the man they believed was the architect of their banishment. First, they threw barbs at then-Gov. Mike Leavitt. KSL Television news reported that “in response, the governor’s office sent out a press release, again implying Welch and co-defendant Dave Johnson were the sole masterminds of the scandal.” Then Welch’s attorney, Bill Taylor, accused the governor of falsely accusing his client of a crime, that his press release was “reckless and intentionally harmful.” KSL said Taylor’s statement went on to accuse the governor of participating “in a concerted effort to make Mr. Welch a scapegoat for the Olympics scandal.”
One opponent of the scapegoat theory says it doesn’t work because there were already sins on Welch’s and Johnson’s heads. “To be a scapegoat you have to be an innocent victim,” the source said. “The goat was clearly at the center of everything that happened.”
But a proponent of the theory says it’s all relative. While the pair may have sinned, the bigger sin was pinning the rap: “It’s even more offensive that all these people that participated have singled these two guys out.”
The Defense’s Cesspool Strategy
Welch and Johnson’s defense counselors propounded the sin theory of relativity at trial. Whether you call the gift-giving bribery or not, it was commonplace, they argued. No harm, no foul when everyone is acting unethically and playing by—oops—breaking the same rules, they implied. They did not try to show their clients did not cheat. They tried to show there was a climate of cheating among bid cities and that Welch and Johnson’s overseers at least knew about the cheating and may have participated in it themselves. In other words, how do you accuse a pair of pigs of being muddy when every pig in the pen is muddy? “Well, how do you find criminal intent in that cesspool?” said one member of the defense team.
The defense deployed a “scorched earth” trial strategy. They trashed the bid process itself, and they trashed key witnesses who testified against their clients in an attempt to make them look as bad or worse. On the other hand, prosecutors needed to showcase Welch and Johnson as the dirtiest pigs at the trough; that they enriched themselves and defrauded victims. But they produced no evidence that either pocketed a single unauthorized cent. And no one took the stand in tears of outrage over what Welch and Johnson had done. Thus, there was no evidence the two deserved special status as scapegoats.
The fraud counts and bribery counts in the criminal indictment required victims of some sort. For the bribery, the victim would have been the International Olympic Committee. But photos showed Samaranch, himself, being gifted an antique Browning pistol in violation of the rules. Dick Pound, the lone IOC official called to the stand, expressed absolutely no outrage. He did not portray himself or his organization as a victim.
The same thing happened on the fraud counts. In that part of the case, the government had to prove that the Salt Lake Bid Committee had been victimized by the defendant’s alleged fraud, that the committee had been deprived of Welch and Johnson’s honest services and that they had denied their superiors the right to control the bid process.
That part of the case was blown out of the courtroom by the most dramatic testimony offered at the trial, when one of Welch and Johnson’s superiors, Spence Eccles, who sat on the executive committee, was permitted to testify he saw no crime. In other words, a supposed victim was saying he hadn’t been victimized. Wheeler had been prepared to trash Eccles as he had hapless witnesses who preceded him, but it wasn’t necessary. Eccles handed defense counsel the best sound bit for its highlight reel—“I know of no crime here”—along with a new theme: Delegated Authority. Here’s how it worked. The executive committee delegated broad authority to its management team. Although management may have misused that authority, misspent some money, written up some phony contracts, broken some rules, management could not complain that it had been deceived, denied its right to honest services, or its right to control the bid process. Because it had given up that right. The government’s fraud case was blown to bits.
One former prosecutor said, “What’s fascinating is that by testifying that way, they almost make themselves co-conspirators.” Thus, if Eccles knew of or was recklessly indifferent to crimes being committed, he could have been pulled into the government’s case. But since Sam found no crimes were committed, there can be no crime and no conspiracy.
The delegation of authority theory Eccles handed prosecutors parallels off-the-cuff advice political consultant Dave Owens had offered his friend, Tom Welch. “Your attitude needs to be, they gave me a job to do,” Owens said he advised Welch, suggesting how to spin the delegation of authority. “Tom, we want you to go get the Olympics. I did what they asked me to do. I got it done. You call it sleazy if you want but the reality is they told me to find out how the game is played and play it and that’s what I did. It may be a pox on both houses; maybe the second most hated side in that courtroom will win. As long as most hated is the prosecution, Tom’s OK,” Owens said.
“Normal jurors are going to be offended by all the sleaze surrounding the Olympics,” Owens continued. “The trump card to that [is] it’s even more offensive that all these people that participated have singled these two guys out.”
Salt Lake Tribune sports columnist Michael Lewis said the same thing another way: “Welch and Johnson have dug in their heels and refused to be made scapegoats. And now, the government is stuck trying to make a weak case on the testimony of crooks and liars who make Welch and Johnson look even more like the good guys in an altogether sleazy Olympic underworld.”
With the case stopped dead in its tracks at mid-trial, the judge and jury vented on the prosecutors, not those who allegedly banished Welch and Johnson to outer darkness. One reason for that was Eccles’ flip-flop on prosecutors. In early January 1999 he told The Associated Press, “We were deceived. We were lied to. … I’m sick at heart.” he said. But at trial he withdrew the finger of blame. Another reason was that the trial was called off before the defense had a chance to run up the score on the executive committee, the governor and others. In that sense Welch and Johnson were not able to finish proving they had been unfairly singled out, drawn and quartered.
Olympic Bribery Poker: The Losers Wear Goat Heads
When federal prosecutors were trying to talk Welch and Johnson into accepting guilty pleas, both sides held their cards close to their vests. Each claimed to be holding fistfuls of aces. The trouble is, there are not that many aces in the deck. Someone was bluffing.
It took a trial to get both sides to show their cards. Welch and Johnson, who had been less than poker-faced all along, laid down aces. Game over, winner take all. And Sam saw to it that the losers got the booby prize: the goat heads Welch and Johnson had been wearing for four years.
With Judge Sam short-sheeting the trial, Welch and Johnson never put on their full case to prove they had been set up to take the fall for the scandal. There was no direct evidence, no “smoking gun,” like a memo saying, in effect, “let’s stick it to Tom & Dave” or a witness on the stand, in a Perry Mason moment, blurting out the details of the meetings at the Governor’s Mansion.
But the circumstantial evidence supporting their scapegoat theory mounted throughout the trial. Joklik testified that firing everyone had been on the table. The bearing of the Eccles surprise testimony on the scapegoat theory was lost in its dramatic impact on the criminal charges. At the time SLOC needed scapegoats, Eccles and others were telling the media they had been lied to. At trial, after the Games had been staged, sticking by the “lied to” story would attract a volley of evidence to the contrary by defense counsel. Eccles faced going through the Wheeler trashing machine. Instead, Eccles, now born-again, came up with a “we don’t care if we were lied to” stance, suggesting his earlier statement to the press was part of the plot to get Welch and Johnson.
Meanwhile, according to the Bible story of Aaron and the goats, someone needs to take on the sins as a final ritual to cleanse Israel. Sam found two unfortunate candidates sitting there in his courtroom: Richard Wiedis and John Scott.
What better candidates? Two liberal, bleeding-heart, carpetbagging, meddling federal attorneys from Washington, D.C. They were the ones who tried to rub Utah’s nose in its gift-giving; they were the ones who deprived Welch and Johnson of their walk into the Olympic Stadium arm-in-arm with President George W. Bush, the Mormon Tabernacle Choir singing in the background, fireworks exploding overhead. They’re the ones, like it or not, who were sent packing back to Washington, wearing the goat heads Tom and Dave were finally able to remove after Sam slammed his gavel and, for the second time, said “Case dismissed.”
“I can only imagine the heartache, the disappointment, the sorrow that you and your loved ones suffered through this terrible ordeal,” the judge said to Welch and Johnson.
The Sam Factor
They won’t comment on or off the record. But their body language in the courtroom revealed their feelings better than words. The prosecution team that brought criminal charges against Tom Welch and Dave Johnson believe they got screwed by U.S. District Judge David Sam. And, if they came to words, they might use a term stronger than “screwed”.
When Sam threw out the case Dec. 5 he not only granted the defense motion to dismiss but also “Samitized” the government attorneys and hung them out to dry saying he never had seen a case “so devoid of … criminal intent or evil purpose.” He wondered how much money the government had spent bringing “this misplaced prosecution.”
Ironically, the trial was not held in Sam’s courtroom, but in Chief Judge Benson’s, the same courtroom occupied by the late and infamous U.S. District Judge Willis W. Ritter. With an expression here and a quip there (barbs he often had extracted from the official court record), Ritter frequently displayed his contempt for various cases and attorneys that had the misfortune of coming before him.
But now, 25 years later, it was Sam dressing down attorneys, showing disdain for one of the biggest cases in Utah history. Even before his remarks on Friday, the judge could hardly contain his contempt for the prosecutors. Defense counsel Max Wheeler, during an argument the day before the case was tossed, launched a good-natured yet acerbic remark toward the two prosecuting attorneys, suggesting that in their heart of hearts they would like the case dismissed. Barely audible through the courtroom laughter, Sam fired his own shot at the government attorneys: “Well, you’d have to inquire if there are any hearts there.”
Judges don’t like to be reversed on appeal. And it was these same federal prosecutors from Washington, D.C., who appealed Sam’s first dismissal of the case two years ago and got it reinstated by the 10th Circuit Court of Appeals.
Should Sam have turned the case over to another judge when it landed back on his desk? Being reversed raises a conflict of interest issue that could make even a legitimate ruling suspect if the reversed judge goes ahead and tries the matter.
“It’s one of the reasons you recuse yourself,” said a Salt Lake attorney who admires Sam. “Those could be perfectly legitimate rulings. They may be perfectly defensible. If they’re made by [a visiting judge] from Montana or Wisconsin who comes in here to hear this case, with no baggage associated with them, it’s a lot easier to take than with someone who tried to get rid of the case once and had it thrown back to them.”
That attorney predicted Sam would let the case go to the jury. “I don’t think he’ll Rule 29 this; I think he’ll let it go. It would be blatantly dishonorable in his mind to do that; I don’t think he holds grudges.” (Rule 29 of the federal rules of trial procedure replaces the earlier “directed verdict” and permits a judge, upon motion, to acquit a defendant without having the matter go to a jury.)
Sam’s conflicts go beyond any possible bitterness over the 10th Circuit reversal. His son, Daryl, was a bankruptcy attorney for the firm that defended David Johnson.
Another conflict: Sam was appointed to the bench by Utah Sen. Orrin Hatch who was involved in the bid and who made public statements about the case. Before he dismissed the first time, the judge told KSL Television, “I hope they can resolve it because nobody benefits by trial.” And he previously had told the Deseret Morning News that Welch and Johnson “are good guys and they did everything they could to get the Olympics.” He said federal prosecutors “ought to really think it through before they indict anybody because this is the way, apparently, Olympic business was done for decades.” After Salt Lake lost to Nagano in 1991, it ramped up its efforts to win. A letter from Hatch to Tom and Alma Welch, just after the loss to Japan, and obtained by the FBI was cited in opening statements of the trial: “Had it not been for prejudice and corruption in the system, we would have been bid winners.”
But by the time Sam upbraided the prosecution, it was clear his rulings during evidence presentation favored the defense. KSL Television reported, “There’s little doubt they’ve (the defense team) got home court advantage, including one high-profile local attorney defending them, a jury of Utahns hearing the case and a Utah federal judge, David Sam, (who already threw out the case once), presiding. Sam has tightly reined in the questions he allows Justice Department prosecutors to ask and their frustration has been evident in the courtroom.”
The Associated Press reported in similar fashion. “Throughout the trial, Sam—who tossed out the original charges against the bid leaders before they were reinstated by an appeals court—has repeatedly ruled against prosecutors on evidence and frequently shut down their lines of questioning. He’s also loudly admonished them for arguing with his bench rulings. With a hostile judge and uncooperative witnesses, the Justice Department attorneys called only 14 of their 43 declared witnesses.”
The media also widely reported the fact that a key government witness, Rod Hamson, when confronted with his own alleged embezzlement, was required to take the Fifth Amendment in front of the jury and have an attorney sit next to him for the rest of his testimony. “It was unbelievable that he made the lawyer sit there in front of the jury to make it look like Hamson was some kind of a criminal when he’s not,” said a source close to the prosecution team. Prosecutors planned to use a witness near the end of the trial to refute the notion Hamson stole from the bid committee, but—they say—were blocked by the judge from introducing that testimony.
“At the witness box! Oh gosh!” said a former federal prosecutor when told about Hamson’s attorney sitting with him. “Yeah, those are signals, sure. But I don’t know whether they’re signals that he [Sam] is sending because he wants to send some special message to the jury that they ought to acquit because this guy’s testimony is not reliable or just feeling he ought to have the lawyer close by in case another question comes up.”
Home Cookin’: The Eccles Testimony
In sports, “home cookin’” is different from home court advantage. It means that not only does the home team have the advantage of playing on its own floor or field, in front of its own fans, but also that the referees call the game to the team’s advantage. Prosecutors believe Sam served up a large dish of home cookin’ when he allowed former First Security Bank CEO Spence Eccles to conclude his testimony with a speech criticizing the prosecution’s case.
Federal prosecutors put Eccles, a member of the executive committee, on the stand to tell the jury that Welch and Johnson had deprived him of his right to control the bid process and had failed to give the committee the honest services the law requires. Government attorney John Scott asked Eccles questions to elicit those responses; objections ensued; Scott appealed to the judge that the line of questioning “goes to the heart of our case.”
The judge sustained the objection and told Scott to move on.
The government failed to get the primary testimony it needed from Eccles. But it was about to get worse. A lot worse.
Under cross-examination by defense counsel Max Wheeler, Eccles testified that gifting was part of the Olympic culture; that gracious entertaining was standard operating procedure for companies like his bank; that providing favors to people one is trying to influence is “common and mandatory” in the business world.
Then, Wheeler began a line of questioning that set up what was perhaps the most dramatic testimony of the trial. He asked Eccles if businesspeople generally delegated authority to subordinates. As Eccles explained how it worked at his bank, he opined: “I know of no crime here.” Wheeler seized the moment and wondered if Eccles was referring to the very trial in which he was participating.
Wheeler: “You say you see no crime here and you are referring to this case?”
John Scott objects: “Well, your honor, now I think that is certainly a matter for the jury and not any witness.”
Wheeler: “Your honor, this witness is identified as an executive member of the victims [bid committee] and I think that under the rules he can give his opinion.”
Judge David Sam: “Yes, I am going to let him give his opinion.”
Scott: “Your honor, he is sitting in that box [referring to witness box] and not in this box [referring to the jury box], your honor.”
Judge Sam: “Counsel, I am going to let him answer the question. [He then turned to the witness.] Mr. Eccles, if you can answer the question you may do so.”
Eccles: “Well, I think I made it abundantly clear before but I will make it abundantly clear now. This is an ill-conceived trial. I know of no law that has been broken. I think that judgment calls have been made that I would not have supported without further information concerning the purpose, but the bottom line was the mission statement and it was to win the bid and we gave them the delegated authority to do that.”
Wheeler realized Eccles had just dealt a crushing blow to the government. “That’s all I have, your honor,” he said, even though he had pages of questions left. Taylor had no questions. Scott had no redirect. And the trial was essentially over.
One attorney who read the transcript gasped. “Well it’s discretionary with the judge,” he said, “but it’s clearly irrelevant. Where he thinks there was a crime or not is irrelevant. There’s a specific rule of evidence that forbids such testimony.” He said the judge should not have allowed the testimony. But if it came in accidentally the judge should have admonished Eccles in the courtroom: “Mr. Eccles that’s beyond your competence and I’m instructing you now not to render opinions that are within the purview of the jury. Now, members of the jury, I’m instructing you to disregard that evidence I will tell you now that’s it’s not relevant what Mr. Eccles thinks was or wasn’t a crime, and that’s for you to decide.”
“It’s also improper for Max to have even asked the question. Not unethical but improper,” the attorney said. “You can’t ask a question to which you know the answer if blatantly objectionable.”
Judge Sam: No Bias against City Weekly
In October 1995 when I was covering the Bonneville Pacific fraud for City Weekly, I filed an action with the bankruptcy court to force then-Salt Lake City Mayor Deedee Corradini to turn over documents that had been sealed by the court. I won in bankruptcy court and her attorney immediately appealed to Utah’s federal district court.
Because the bankruptcy court ruled the records had to be released that very day, Corradini’s attorney needed to find a federal judge who would hold an emergency hearing. One judge after another refused to hear the case, citing possible conflicts of interest. There was only one left to ask: David Sam.
Corradini’s attorney and I sat in Sam’s office discussing with the judge whether he would hear the case. He asked if either of us thought he should recuse himself, as his colleagues had opted to do.
I popped up, “Judge Sam, I’m Lynn Packer. I’ve written articles in City Weekly that were critical of your decision to release swindler Carvel Shaffer early from prison,” I said, “including the fact that [Sen. Orrin] Hatch backed the judge’s decision calling Shaffer ‘a very good church-going person’ who was convicted in the ‘rotten, lousy area of security law.’”
Sam said, yes, he recalled reading those stories, adding “I have no problem with that.”
I replied, “If you don’t have a problem, then neither do I. Let’s get on with the hearing.”
The judge heard arguments in a courtroom packed with media eager to obtain the sealed documents. He ruled favorably and even denied a motion to suspect release pending appeal to the 10th Circuit. The papers were released. If the judge held a grudge, he had every opportunity to thwart media access to those documents. He did not. And, it was information in those sealed documents that led to Corradini’s Giftgate scandal a year later.
Final Grades
(Editor’s note: Lynn Packer, a trial consultant, covered the Olympic bribery trial for City Weekly. He kicked off his coverage by issuing grades to attorneys for their opening statements. Now it’s final grade time.)
For the opening statements of the Olympic bribery trial I gave the two defense attorneys a combined B average and the prosecution a D+. Why a D+? Mostly because of the failure to clearly lay out their case in opening. Not good thinking when you’re the underdog and have the burden of proof. That may or may not have contributed to U.S. District Judge David Sam’s tossing the case. One juror, in a post-trial interview, called the prosecution’s case “confusing.” Another told The Salt Lake Tribune that the prosecution’s case “never followed a direct timeline.”
Witness examination was done primarily by seven lawyers, three for the prosecution, and four for the defense. My final grades are issued for the four primary attorneys in the case: Richard Wiedis and John Scott for the government, Bill Taylor for Welch and Max Wheeler for Johnson.
Neither side used flow charts, timelines or other visual aids to great advantage, aids which would have helped the jurors sort through a complex labyrinth of facts, documents and witness statements. But both sides did use electronic document-presentation software fairly well. Sam told City Weekly he thought that technology did help shorten the trial a bit. Since both sides made poor use of visuals, it’s a draw. So the final grades are primarily for witness examination and tactics.
Richard Wiedis: B- Mostly for valor under fire. He held up, bit his lip, and pressed on under an assault from opposing counsel who outgunned him, and from a judge who probably had made up his mind before the trial started. Wiedis was slated to give a closing that now resides somewhere on crumpled yellow legal-pad paper.
John Scott: D. His poor direct examination of Eccles set up Wheeler’s brilliant cross-examination. Had he asked the right questions the right way, he might have gotten what he needed from Spence Eccles’ testimony, points which were blocked by defense counsel objections and sustained by a judge who, in any event, might have thwarted a better plan of attack.
Bill Taylor: B. He gave the best opening; Wheeler’s was more workmanlike and less striking in comparison. But all that flip-flopped during witness examinations. Taylor’s style is more plodding. It’s a Matlocklike approach that stars the lawyer rather than the witness. Taylor calls it Basic Witness Examination 101, a style where most questions elicit yes/no answers. Very effective, very conservative, often very boring.
Max Wheeler: A. May have deserved an A+ but I’m a tough grader. Yes, he struck out at the plate during his cross-examination of Frank Joklik. Yes, Joklik threw a few spitballs and forked-tongue fast balls, but a strikeout is a strikeout. And, yes, he crossed the line when he asked Eccles the historic question: “You say you see no crime here and you are referring to this case?” But he not only hit that cross-examination out of the park, the ball was still rising when the fans lost sight of it. Wheeler’s cross-examination of Eccles will go down in Utah litigation history if not lore. (See the main story for the verbatim exchange.)
Judge Sam’s grade? I’m not touching that one with a 10-foot pole. I’m a trial consultant and have to work in this town.
It’s true that defense counsel Bill Taylor told the Deseret Morning News after the case had been dismissed that, in his view, the judge did not go into the case expecting to dismiss it. “He was completely disposed to be as objective and as even-handed as he could be. … He’s not going to put his fingers on the scales of justice for anybody,” Taylor told the Deseret Morning News. Prosecution counsel, if they were talking, would likely agree the judge did not put his fingers on the scales of justice. Their demeanor suggested they thought the judge sat on the scales.
In any event, biased or fair, Judge Sam’s ruling might/should/will go down in Utah judicial history as the most popular ruling ever made by a Utah judge.
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