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Kilpatrick’s case up for review by U.S. Supreme Court

Jennifer Chambers
The Detroit News

Disgraced former Detroit Mayor Kwame Kilpatrick’s bid to get his 2013 public corruption conviction tossed is before the U.S. Supreme Court on Thursday.

At its weekly conference in Washington, D.C., the nation’s highest court is expected to discuss whether to consider Kilpatrick’s appeal and the appeals of more than a dozen cases from across the United States.

The court can either grant or deny Kilpatrick’s petition or put the case over for another day to consider, Kilpatrick’s attorney Harold Gurewitz said on Wednesday.

Gurewitz said the court should consider Kilpatrick’s case because the role of law enforcement lay opinion testimony at the six-month trial went beyond introducing and publishing evidence to the jury by two agents who testified 23 times.

Review is warranted, Gurewitz said, on the troubling issue of whether an agent’s lay opinions interpreting text messages, recorded calls and complex documents can be based only on the agents post-hoc review of investigative materials.

Kilpatrick was convicted of racketeering, extortion, income tax invasion and other charges.

“Far from limited to only ‘context’ and ‘background,’ it was the means used continuously by the prosecutors to place Mayor Kilpatrick in after-hours meetings and contract negotiations that were the heart of the RICO, fraud and bribery charges on trial,” Gurewitz wrote in a June 8 filing with the court.

“This extraordinary use of agent testimony to narrate the six-month trial and the theory of prosecution is unprecedented,” he said.

In his appeal, Kilpatrick also argues that he was without “zealous” counsel to argue his defense at critical stages of his trial because his trial attorneys were dealing with conflict of interest issues, which Kilpatrick objected to before his trial began.

Gurewitz said the trial court rejected Kilpatrick’s request for new counsel after a hearing without witnesses and without examining the counsel relationship his attorneys created with the law firm representing the plaintiff simultaneously suing Kilpatrick for money damages based on the identical RICO allegations in the indictment.

“Their conflicts should have required their disqualification before trial; and, after his objections were denied and Mayor Kilpatrick was sentenced to 28 years custody, they should have required an order from the court of appeals for a new trial,” Gurewitz wrote.

In a previous ruling, the U.S. Court of Appeals said Kilpatrick was not denied his constitutional right to conflict-free counsel.

The appeals court also rejected his argument that the district court abused its discretion in allowing the agents to give their lay opinions about the meaning of “shorthand” lingo used in text messages, to discuss some of the inner workings of the Detroit government and to explain aspects of the city’s sewer-department contracts.

In their response to the appeal, Solicitor General Donald B. Verrilli Jr. said Kilpatrick’s and his co-defendants’ six-month jury trial included almost 100 government witnesses and more than 700 exhibits, producing 10,000 pages of transcripts.

The government’s investigation had amassed about 300,000 text messages and hundreds of thousands of records from the City of Detroit, municipal contractors, accountants and financial institutions.

Due to the volume of evidence, Verrilli said the federal court permitted the government to present its case in “chapters” and federal agents testified multiple times by introducing and publishing documentary evidence that pertained to each chapter, including bank records, documents, calendar pages, emails and text messages.

Many of the text messages and recorded conversations introduced into evidence were communicated in “informal short-hand with little or no explanatory detail,” Verrilli said.

“As a result, the district court permitted the agents to provide some context and background, based on their investigation, to help explain the meaning of abbreviations, shorthand, or nicknames,” Verrilli said.

When asked about Kilpatrick’s current condition, Gurewitz said there was nothing specific to report.

“We are all waiting with concern. It’s an important step, and we look forward to a decision,” he said.

jchambers@detroitnews.com

Kwame Kilpatrick’s 2013 conviction and sentence

Convicted of:

One count of RICO conspiracy

Four counts of extortion

One count of attempted extortion

Eleven counts of mail and wire fraud

Five counts of subscribing a false tax return

One count of income-tax evasion

Sentence: 28 years in prison, to be followed by three years of supervised release and criminal restitution.

Source: Detroit News archives