Ray Nagin faces 'uphill battle' as he heads to court

This week, he becomes a member of a larger, but still exclusive, club: allegedly crooked politicians who decide to test the federal government by going to trial.

Beating the rap will be a tall order for Nagin, legal analysts say, noting the breadth of the government’s case: A 25-page indictment lists 21 charges, including a conspiracy involving 59 “overt acts.” The dry recitations contained in the indictment will be fleshed out at trial by testimony from a slew of cooperating witnesses — convicted and otherwise — who have agreed to take the stand against the former mayor.

To have a chance at acquittal, most observers say, Nagin will almost certainly have to testify in his own defense.

“I’ve never in 50 years of doing this won a case where my client didn’t take the stand,” said veteran defense attorney Julian Murray. “I know the judge tells the jury not to hold it against the defendant if they don’t, but the jury wants to hear them give their side of the story.”

That’s especially true when the parade of witnesses and evidence is so extensive, said Murray, who believes Nagin faces an “uphill battle.”

Loyola University law professor Dane Ciolino agreed, saying the case against Nagin is comparable to the one the government brought against former U.S. Rep. William Jefferson in 2009.

“It looks like a very tough case,” Ciolino said. “Here, they may not have admissions from the mayor, or (secretly recorded) video. But there is lots of testimony from cooperating witnesses and lots of corroborating documentary evidence.

“Admittedly there’s nothing as salacious as the money in the freezer. But it’s still a tough case, and the government’s track record at trial is quite good. I have to think long and hard to come up with someone who has gone to trial and been acquitted in a corruption case. (Former state Sen. B.B.) ‘Sixty’ Rayburn is the last one I can think of.”

A federal jury acquitted Rayburn of bribery charges in 1997 but convicted his co-defendants.

A raft of charges

Nagin will arguably have a lot more to overcome than Rayburn did. For starters, Nagin left City Hall four years ago as a very unpopular figure, with approval ratings hovering just over 20 percent. Though every effort will be made to scrub potential jurors — who will hail from 13 parishes in southeast Louisiana — for any animus against him, he’d be better off if jurors tended to see him favorably.

Tim Meche, who does criminal defense work in federal court, said he was somewhat surprised Nagin didn’t seek a change of venue. Though judges don’t like to grant such motions, U.S. District Ginger Berrigan might have done so in this case had a request been made, Meche said.

But, he added, having locals on the jury could work out for Nagin. “You never know who’s going to be on the jury,” Meche said.

Many courtroom observers say Nagin’s affable lawyer, Robert Jenkins, often has a good rapport with juries. However, Jenkins does most of his criminal defense work at Criminal District Court, where he is one of the city’s busiest lawyers. He has done courtroom battle with the federal government on at least one occasion, representing New Orleans business and political operative Gilbert Jackson in a complex corruption trial in Cleveland in 2005. Jackson was convicted and sentenced to seven years in prison.

Jenkins will be squaring off against a team of formidable prosecutors — Matthew Coman, Richard Pickens and Matthew Chester — with a lot of trials under their belt. Coman and Pickens managed to persuade a jury in 2011 to convict City Hall technology vendor Mark St. Pierre on every single one of the 53 counts he faced. St. Pierre, who may testify against Nagin, is serving a 17-year sentence.

But the most challenging obstacle Nagin faces may be this: persuading the jury that a whole parade of witnesses — who in many cases will be backed up by documents — are lying.

The government plans to lay out five essentially distinct schemes in which the former mayor allegedly traded city assets or the promise of them for personal profit:

The steering of lucrative, no-bid technology work to St. Pierre in exchange for St. Pierre’s underwriting of trips, landscaping and even cellphones for the Nagin family.

The waiver of delinquent tax and loan payments owed the city by cinema owner George Solomon in exchange for Solomon’s providing the Nagin family with a lavish trip to New York City.

The offer of help in derailing a proposed “community benefits agreement” between Home Depot and neighbors of a planned Central City store in exchange for an exclusive granite-installation contract between the retailer and the Nagin family’s countertop business.

Favorable city treatment for the firm Home Solutions of America, including contracts and the promise of others, in exchange for payments totaling $162,500, two truckloads of free granite, and other gifts sponsored by Frank Fradella, HSOA’s chief executive.

The steering of at least 22 professional-services contracts, cumulatively worth millions of dollars, to the engineering firm Three Fold Consultants in exchange for payments totaling $72,500 from Rodney Williams, one of the company’s owners.

Of the various schemes, the last may be the most difficult to defend, for several reasons. Williams may be the least compromised of the government’s key witnesses: The only crime he has admitted involves his dealings with the mayor, whereas some other witnesses are testifying in part in hopes of reducing the amount of time they will spend in federal prison for completely unrelated crimes.

The mayor is likely to argue that the money he took from Williams was in exchange for an ownership interest in Stone Age, the Nagin family’s granite firm. But prosecutors say the documents that back that up are a sham, a version Williams is expected to back on the stand.

Nagin may also try to say that he merely signed Three Fold’s city contracts after a technical committee recommended the firm. (City law does not require such professional-services contracts to go to the lowest bidder, giving the mayor broad latitude to pick a winner.) But WWL-TV, citing what it said were sources with knowledge of the committee’s deliberations, has reported that a City Hall selection committee actually found Three Fold was not qualified for city work, and the firm got a raft of jobs anyway.

Chinks in the armor

There are some potential weaknesses in the government’s case, with the biggest perhaps being that many of the witnesses have their own criminal problems, separate from the Nagin case.

“It’s a triable case,” said Meche, who tends to be more skeptical of federal corruption cases than some of his peers. “I think he’s got a shot. The witnesses against him have real credibility problems — some worse than others.”

Fradella, for instance, was charged in a sweeping fraud case of manipulating Home Solutions’ stock prices by issuing bogus news releases, and the government dramatically reduced the charges against him when he pleaded guilty and agreed to cooperate against Nagin.

And while it appears prosecutors have plenty of evidence that money and gifts flowed from Fradella to Nagin, it’s less clear what Nagin did for Fradella. Though Fradella’s firm landed a number of City Hall contracts, most if not all were construction or repair deals that by law had to go to the lowest bidder. There’s been no evidence of bid-rigging presented to date.

Fradella was angling for something much bigger — among other things, a shot at redeveloping the defunct Market Street Power Plant, which Entergy had taken out of commission in 1973. No deal was ever consummated, but records show Nagin held several meetings with Fradella and Entergy executives, and at one point he took a trip to Baltimore to talk up the project with potential developers.

Prosecutors don’t actually have to prove both ends of a quid pro quo in a corruption case, merely that the government official took gifts or cash in exchange for a promise from an official, but juries tend to find it much more persuasive when it’s clear what both sides got.

Other witnesses have issues too. Meche noted that a good defense lawyer will be able to point out contradictions between the self-serving testimony Nagin pal and former city technology chief Greg Meffert gave in a civil lawsuit brought by disgruntled crime-camera vendors and his later admissions of guilt.

In the big picture, the jury may be unimpressed with the size of Nagin’s alleged ill-gotten haul, Meche said. “It’s not like he ended up with a couple million dollars,” he said. Prosecutors have not put an exact price tag on the total amount Nagin allegedly received, but the indictment charges he got $235,000 in payments to himself or Stone Age, plus travel worth perhaps $50,000 — and two truckloads of granite whose value they have not estimated, but which could be substantial.

Self-affirming pattern?

The indictment charges that Nagin failed to pay taxes on any of those gifts or bribes, and legal observers agreed that the four tax-evasion charges stemming from those failures could be hard for the mayor to explain away.

The fact that he did not list the payments as income will tend to bolster the government’s case that the payments were illegal, they said.

Similarly, Ciolino said, the prosecution’s enumeration of so many unrelated schemes benefiting the mayor may suggest a pattern of behavior that is hard for the jury to ignore — even if Nagin’s lawyer succeeds in casting doubt on some of the witnesses’ credibility.

“If you only have one witness saying it, that’s one thing, but it gets less and less plausible when a whole list of witnesses is saying the same thing,” Ciolino said. “The problem with selling that to the jury is that that’s a lot of people making stuff up.”