Head Strong: Why the jury chose to believe Sprague

Karen White, the jury forewoman in former State Sen. Vincent J. Fumo's federal corruption trial, read the word

guilty

137 times last Monday. Thirty-three of those findings were for obstruction of justice. In determining Fumo guilty, the jury rejected his "advice of counsel" defense that had been the predicate for one of the trial's more interesting conflicts.

This was a battle between two Pennsylvania giants. In one corner stood Fumo. The ranking Democrat on the powerful Senate Appropriations Committee for more than two decades, Fumo represented his South Philadelphia district for more than 30 years in Harrisburg.

His opponent was Richard A. Sprague, the veteran of 54 years of legal practice and an estimated 10,000 trials, who first gained national notoriety after he successfully prosecuted United Mine Workers president Tony Boyle in the early 1970s.

Fumo and Sprague were not only titans of the state's political and legal circles, but also for decades they maintained "as close a relationship, I believe, as you can have," Sprague testified. Sprague represented Fumo until late 2007, when a feud ended their relationship - both professional and personal.

At issue for the jury: whether to accept Fumo's assertion that Sprague had offered flawed legal advice - an argument he said was evidenced by a note recorded by a Sprague colleague; or to believe Sprague, who testified as a rebuttal witness and denied Fumo's claim.

We know from testimony that in January 2004, after The Inquirer first reported that federal investigators were looking into Fumo's relationship with Citizens' Alliance, a Harrisburg staffer expressed concern to Fumo that potentially pertinent e-mails had been lost after the Senate switched servers in 2002.

Fumo testified that he then discussed that matter with Sprague. "If nothing has been subpoenaed, you don't have to have it," Fumo said Sprague told him. "You can do whatever you want."

When called to testify, Sprague said: "I never said that at all."

Any such advice would have been unfounded in the law, which holds that the lack of a subpoena does not excuse an individual from preserving documents that could be relevant to a federal investigation. Nevertheless, Fumo was trying to assert that he had stepped up efforts to delete e-mails and wipe computers after being assured - wrongly - by both Sprague and another lawyer, Robert Scandone, that those efforts were legal.

In other words, Fumo was asking the jury to believe that Sprague - who prosecuted Boyle for the murder of union rival Joseph Yablonski, acted as chief counsel to the Select Committee on Assassinations that investigated the murders of John F. Kennedy and the Rev. Dr. Martin Luther King Jr., and represented Allen Iverson - had offered faulty legal advice.

Why roll that dice? Fumo's attorney, Dennis Cogan, argued that this was more than a he-said-he-said. He claimed that Fumo's rendition was supported by a note written by a Sprague colleague, Geoffrey Johnson, in January 2006, during a meeting between Sprague and Fumo at Sprague's house. It read: "VJF [Fumo] always believed no obligation to save anything until you get a subpoena." And next: "RAS [Sprague] did as well."

Sprague was the prosecution's first rebuttal witness. His physical stature may reflect his 83 years, but mentally there has been no deterioration in his skills. After recounting for the jury some of the highlights of his long career, he testified that if he had known that e-mails were being deleted and computers were being wiped, he "would have told them to stop." Johnson testified that the memo did not imply that Sprague actually offered Fumo that advice.

The result? Thirty-three findings of guilt on obstruction of justice.

Why did the jury choose Sprague's version of events?

Motive, or lack thereof, according to former state and federal prosecutor Lloyd George Parry. "The defense never established any motive whatsoever for Sprague to have been anything other than a truthful witness," Parry told me. "On the other hand, as a defendant facing a potential life sentence, Fumo had every incentive to attempt to falsely blame his lawyer for the destruction of the evidence."

But what of Johnson's note?

"That was part of it, but it wasn't all of it," juror Greg Brecker told me this week. The Johnson memo, he explained, came long after Fumo should have disclosed the e-mail deletion to his lawyers. And more than that, Fumo, "as a lawyer, should have known to seek more complete counsel and more comprehensive counsel, even if that was part of it. And it just never rose to the level of reasonable doubt, at least in my mind," Brecker said.

"There were very few [witnesses] that I believed everything that they said, and there were very few that I disbelieved everything they said. It was kind of a compilation of both," Brecker said.

Given a choice between two Pennsylvania icons, the jury sided with Sprague.