By: Donald V. Watkins
April 7, 2023
An Editorial Opinion
On December 10, 1990, Birmingham, Alabama Police Chief Arthur Deutcsh, police officers Bob Howell and Mike Lee, and Assistant Jail Administrator Robert Stone were indicted on felony charges of tampering with government records. The charges arose from an unsuccessful effort by one or more of these officers to alter jail records in an unsuccessful attempt to cover up the July 5, 1990, arrest of Erica Arrington, the daughter of then-Birmingham mayor Richard Arrington, Jr.
There was extensive publicity surrounding the attempted coverup of Eric Arrington's arrest, and it was overwhelmingly negative. Much of this publicity was sensational and undoubtedly prejudicial in the courts of public opinion and law. The publicity included highly inflammatory pre-Indictment remarks by long-time Jefferson County, Alabama District Attorney David Barber.
The Indictments came at a time when Mayor Arrington was running for re-election in October of 1991 for his fourth consecutive term in office. Arrington’s strongest opponent was running largely on the jail records controversy, with David Barber surreptitiously supporting his opponent.
Chief Arthur Deutcsh was tried first, and he was convicted on May 24, 1991. (Deutsch's conviction was later reversed on appeal, and he was never retried based upon a judicial determination that he was mentally incompetent to stand trial after a work-related accident).
The negative publicity from Chief Deutcsh’s conviction spilled over into the political arena and was hurting Mayor Arrington’s chances for re-election, even though the mayor had no involvement whatsoever in the jail records controversy.
Officer Mike Lee's trial was up next. For a host of political reasons, we desperately needed a mistrial or acquittal. This article is about what happened in Mike Lee’s case, and why it is relevant to Donald Trump’s New York state court case of falsifying business records.
Officer Howell's trial started on September 9, 1991. His jury deadlocked, and a mistrial was declared on September 13, 1991. (After Mayor Arrington was re-elected in October, Howell was retried and found guilty of a misdemeanor charge of tampering with government records.)
Assistant Jail Administrator Robert Stone was tried last, and he was acquitted after the October election.
Mike Lee Won His Case by Calling District Attorney David Barber as a Defense Witness
Officer Mike Lee was represented by criminal defense attorney H. Lewis Gillis, who served as a member of my Birmingham litigation team (1985 to 1998), as well as the all-star defense team that won former HealthSouth Corp. CEO Richard Scrushy's 85-felony count case in U.S. v. Richard Scrushy. (2003 to 2005). Gillis is also a former Montgomery County assistant district attorney with an impeccable trial record and unparalleled trial skills.
Each of the four police officers in the jail records case had a separate lawyer who was paid with city funds, as authorized under state law. Each officer had a separate trial.
We assigned Lewis Gillis to represent Officer Mike Lee. Chief Deutsch and the other two defendants selected their own attorneys.
Mayor Arrington and I asked Lewis Gillis to secure a mistrial, if possible, as the mayoral election was only two months away from the start of Mike Lee’s trial in August of 1991. After Chief Deutsch's conviction in May of 1991, we thought another conviction was likely and we did not need a second conviction as we approached the October election. The optics from a second conviction would further erode Mayor Arrington's chances for re-election. Under the circumstances, a mistrial would have been a good outcome.
On the third day of the trial, Lewis Gillis asked to meet with Mayor Arrington and me to brief us on the progress of the trial. In his briefing, Gillis reminded us that we asked him to secure a mistrial, if possible.
Then, Lewis Gillis asked us for permission to WIN officer Mike Lee's case. We were stunned by his request. We asked Gillis whether an acquittal was even possible, given the divisiveness in the community, the non-stop negative media coverage, and the circus-like political atmosphere surrounding Mike Lee's trial.
Gillis’ answer was simple and direct. He would call District Attorney Barber as an adverse witness for Mike Lee's defense and fillet him in front of the jurors. He would expose Barber's political motivation for bringing the criminal charges against Lee. With the defense work Gillis had already performed during the prosecution's case, he thought this strategy would sway the jury towards an acquittal.
Alabama Rules of Evidence, like New York Rules of Evidence, permitted a defendant to call any witness who had evidence that was material to the defense and relevant to the charges. These Rules of Evidence are still in effect in Alabama and New York.
The next day, Gillis called a stunned David Barber to the witness stand as his first defense witness. Gillis filleted Barber in front of the jurors, who were surprised to see the way Gillis firmly handled a member of the prosecution team as an adverse witness.
Gillis kept Barber on a short leash and sliced him with razor-sharp leading questions about all his pre- and post-Indictment comments. Barber was nervous, unprepared, and testy during his entire time on the witness stand. Gillis’ examination of Barber was masterful. It turned the tide from a possible mistrial to an outright and stunning victory on all charges.
Trump’s Legal Team is Not Ready for Primetime
Donald Trump’s legal team has the Fourteenth Amendment’s Due Process Clause and Rule 6.10(4)(b) of the New York Rules of Evidence available to them to compel Manhattan District Attorney Alvin Bragg to take the witness stand in Trump’s defense. Bragg would be called as an adverse witness. He would be treated like any other adverse witness.
Once Alvin Bragg takes the witness stand, a highly skilled Trump defense attorney must surgically fillet him, without anesthesia, on all his pre-Indictment comments, campaign remarks, and media statements about Donald Trump, just as Gillis did with David Barber about his pre-Indictment comments regarding the four indicted police officers.
It takes "Big Balls" to call and run this kind of play. I have only seen it run once during my entire legal career, and that was when Lewis Gillis ran it in Mike Lee's case.
This strategic defense play would catapult this central question to the forefront of Trump's trial: Was Donald Trump indicted because he committed 34 felony crimes, or was he charged for the purpose of satisfying Alvin Bragg’s lust for determining the destiny of America’s 2024 presidential election?
For reasons that still fascinate me today, jurors love to see public officials bleed all over themselves on the witness stand, whether they are simply witnesses in the case or criminal defendants. This defensive play would change the entire focus of Trump's trial and put the spotlight on the prosecution like no other trial strategy can do.
What is more, this defensive play takes the pressure off Donald Trump to attack Alvin Bragg in the court of public opinion and possibly risk unbearable sanctions by the trial judge for doing so. Trump could sit back and enjoy the show in the "gladiator pit."
But first, Donald Trump must get himself a “gladiator” who is trained to fight in cases where losing is NOT an acceptable option. This, Trump has not done.
Don’t ever forget, Alvin Bragg’s prosecution team only needs to win ONE criminal count, while Donald Trump must win all THIRTY-FOUR counts. That's the difference between prison or freedom for Trump.
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