The Legal Intelligencer by Shannon P. Duffy - February 19, 2009
PHILADELPHIA - It was a day of jaw-dropping revelations in the corruption trial of former Pennsylvania state Sen. Vincent J. Fumo as prosecutors called three of Fumo's former lawyers -- led by Richard A. Sprague -- to rebut testimony that Fumo was relying on poor legal advice when he instructed his staff to destroy documents in the midst of an FBI probe. Fumo, who spent more than five days on the witness stand, claims he was advised by several lawyers that he was free to continue business as usual in his Senate office -- including following a policy of deleting e-mails -- until he was served with a subpoena. But Sprague, called as a rebuttal witness by the prosecutors, testified that he never gave Fumo any such advice and never would have, and that Sprague himself never believed Fumo's claim that he received such advice from another lawyer, Robert Scandone.
Fumo's current lawyer, Dennis Cogan, reminded Sprague that Sprague had relied on the account of Scandone's advice in shaping Fumo's defense both in a press conference and in a letter to Congress. But Sprague insisted that he was simply doing his best for Fumo and that Sprague himself "doubted the truth of it very much from the beginning." Scandone later testified that he thought Fumo's decision to assert an advice of counsel defense was "the dumbest argument I've ever heard" and that the brief conversation Fumo was referring to as the one in which he gleaned the advice from Scandone was a "nothing" conversation. But Cogan pointed to notes from a meeting attended by Fumo, Sprague and two other lawyers from Sprague & Sprague that, he said, suggested Sprague had at one time agreed with Fumo's view on the law of obstructing justice.
To understand the lawyers' testimony, one must first understand the time line of events that led up to the former senator's indictment. Initial press accounts of the probe suggested that the FBI was focusing on Fumo's dealings with PECO and Verizon and possible allegations that Fumo had extorted contributions from them to Citizens Alliance for Better Neighborhoods, a nonprofit Fumo created and controlled. Ultimately, Fumo was never charged with extortion but instead was charged with defrauding Citizens Alliance by having the charity pay for a wide variety of goods and services, including vehicles. The indictment also charges that Fumo cheated the state Senate by using his staff as personal servants and defrauded the Independence Seaport Museum by taking yacht trips for free. Fumo is also accused of orchestrating a massive cover-up of his schemes by instructing his staff to destroy documents, most notably thousands of e-mails, in a process that including "wiping" clean all of the laptops, computers and BlackBerrys used by the scores of workers on Fumo's staff.
As a defense to the obstruction of justice charges, Fumo has testified that he received advice from two lawyers -- Sprague and Scandone -- that convinced him there was nothing wrong with his decision to strictly enforce a "document retention" policy that called for regularly deleting all e-mails to and from the senator. Fumo testified that when the news of the FBI probe first began to surface in press accounts, he had a conversation with one of his top aides in Harrisburg, attorney Christopher Craig, who was concerned because all of the e-mails relating to the PECO and Verizon negotiations had been lost forever when the Senate replaced the main e-mail server in Harrisburg. It was then, Fumo said, that Sprague told him that the lost e-mails were of no concern because the government cannot expect documents to be maintained unless they are under subpoena. Fumo also claims that later, when Citizens Alliance was served with a subpoena, he had a conversation with Scandone about whether the subpoena would require Fumo and his staff to change their office practices and that Scandone assured him he was under no duty to change anything because the subpoena was not directed to Fumo or his office.
After Fumo's testimony was completed, the defense rested and prosecutors set out to torpedo Fumo's advice of counsel defense by calling the very lawyers whose advice Fumo claims he relied on. Sprague said he routinely advises clients who are under investigation not to destroy anything because even an innocent defendant can end up in trouble for a cover-up. "You can get out of the fire, but you can be in the frying pan," Sprague said. Under questioning by Assistant U.S. Attorney John Pease, Sprague dealt a series of body blows to Fumo's advice of counsel defense. First, Sprague denied that he had ever had a conversation with Fumo about the concern that all of the PECO and Verizon e-mails had been lost in the changeover to the new e-mail server. Emphatically denouncing Fumo's account, Sprague said, "I never heard that at all until I heard that in this trial."
Sprague said that in a meeting with Fumo, the issue of deleting e-mails was discussed and that when Fumo said he believed he was free to delete documents until the day he was served with a subpoena, Sprague's partner, Mark Sheppard, asked Fumo where he had gotten such a "crazy" idea. Sprague recalled that later in the same meeting, Fumo had a question. The lawyer quoted the ex-senator as asking: "Would it help me if I had a lawyer who gave me that advice?" Fumo then left the meeting briefly, Sprague testified. When the former senator returned, Sprague continued, he said Scandone would testify that he had given Fumo such advice. Later on Wednesday, Scandone offered an account that dovetailed with Sprague's, saying he had received a call from Fumo who said that he was in a meeting with Sprague and needed a "really big favor."
Scandone said he told Fumo at the time that he was not his lawyer and that the conversation Fumo was referring to was "a nothing conversation." But Scandone said he ultimately agreed to write a letter that memorialized the conversation, even though he disagreed with the decision by Sprague and Fumo to rely on it as legal advice that would support a defense to obstruction charges. Attorney Geoffrey Johnson of Sprague & Sprague also testified briefly Wednesday and rejected Fumo's claim that Johnson's notes from a 2005 meeting showed that Sprague had agreed with Fumo's view of the law. Scandone's testimony will continue today. Fumo's lawyers are expected to seek permission to call Sheppard as a surrebuttal witness.