The government "can't just go trolling for public officials, can they?"
The answer is "absolutely not." FBI agent Brian Burns said that from the witness stand in John Ford's trial in response to a question from defense attorney Michael Scholl, just like he said it from the witness stand in Roscoe Dixon's trial last year in response to a question from assistant U.S. attorney Tim Discenza.
So when the FBI and federal prosecutors set up Operation Tennessee Waltz to root out "systemic corruption" in state government in 2003, they did not target John Ford. And when Captain Quint and Matt Hooper and Chief Brody set out in that fishing boat and started chumming the waters in Jaws, they were not looking for a big shark.
Seven days into the Ford trial, the case for entrapment is as murky as the case for bribery is clear. Jurors have seen and heard tapes of 10 payoffs to Ford, totaling $55,000, in 2004 and 2005. Each one is made in the context of conversations about Ford helping undercover FBI agents posing as business executives get special legislation for E-Cycle Management. Undercover agent L.C. McNeil counts out stacks of $100 bills and passes them across a desk to Ford, who often puts them in his pocket without bothering with an envelope. Some of the videos are shot from multiple angles and are as clear and carefully analyzed as NFL football replays, with McNeil, à la Boomer Esiason, circling the money with a red marker on his computer screen.
"I can walk into a room and get more done than 10 motherfuckers," Ford says on one tape in a typical example of the former senator's bravado and ratiocination. Obscenity may be edited out of family newspapers but not federal trials.
The prosecution's biggest problem is probably also Ford's best hope: showing that it caught Ford without setting him up. In the current news climate, with the Justice Department and U.S. attorney general Alberto Gonzales under fire for the firing of eight federal prosecutors, possibly for political reasons, establishing that Tennessee Waltz was nonpartisan is especially important.
Here's an overview of the trial as of Tuesday, April 17th:
Who's on the stand? Undercover FBI agent L.C. McNeil (not his real name) has been on the stand for most of four days. He was Ford's running buddy in 2004-2005 and taped hundreds of hours of conversations. He is the government's key witness because he actually made the payoffs to John Ford in a way that, in hindsight, seems like a dead giveaway to an undercover sting.
"I don't target anyone," McNeil said in response to a question from Discenza. "My focus is to go out and conduct a fair and balanced investigation."
In two days of cross-examination, Scholl has done everything but shout "liar liar pants on fire" in numerous efforts to get McNeil to depict acting as lying.
Who is L.C. McNeil? The short answer is undercover specialist who looks like he could kick anyone in the courtroom's ass. The long answer is more complicated. In real life, he is 39 years old, African-American, 6'1", 220 pounds, a former Los Angeles policeman, a graduate of Oral Roberts with a theology degree, and a former full-time minister who was still ministering last year. For some reason, the government got McNeil to divulge most of that information in the Dixon trial but only gave the Ford jury an abbreviated resume and let Scholl flesh out the details.
In his fake identity, McNeil was the single father of a son in Chicago, a music producer and investor in lucrative stock offerings, and a world traveler. On the tapes, he and Ford are partying, talking about women in language that would get a budding Don Imus in trouble, and going to sports events. But McNeil is not nearly as foul-mouthed as Ford. He calls Ford "cat" and "doctor" and almost always ends his phone conversations with "Peace."
Does he ever slip up? It's hard to say, but there seems to have been a close call or two. McNeil always refers to his fellow undercover FBI agent Joe Carroll (alias Joe Carson) as simply "Joe." Inevitably, Ford says something like "who?" And McNeil says, "My partner." But he never uses his full name, which is perhaps too easy to confuse with his real name. And his fake career in music and movies, by coincidence or design, put him in Los Angeles and New York at the same time that one of Ford's daughters was trying to break into the business there. He even says he will contact her, but apparently he never did. Nor did Ford check him out, which might have blown the cover.
Was John Ford targeted? At some point, he obviously was, but when and how are key issues in the trial. The FBI and prosecutors had to comply with guidelines for undercover operations and get approvals from higher-ups in Washington. Given the notoriety and history of the Ford family, it seems likely that Gonzales or his predecessor were in the loop, but that has not come out in court.
The jury must decide whether Ford was "predicated" or predisposed to take a bribe or entrapped by overzealous FBI agents. That's the reason why so much has been made of an April 2004 dinner at Morton's Steak House in Nashville when Ford and McNeil met for the first time. Kathryn Bowers, who definitely was an early Tennessee Waltz target, arranged the dinner and E-Cycle paid for it.
"I got a brother on City Council and another brother on County Commission and I control the votes in both places," Ford says. But he was not an eager player. In his cross-examination of McNeil, Scholl played a tape on which Ford said he was too busy to help.
"It takes five months of my time, and I just don't have time to do it," he says.
The next day, McNeil and Tim Willis, his undercover informant, visit Ford at his Nashville office in the legislative plaza. Ford wants to talk more about the music business, but McNeil wants to talk about E-Cycle.
"Do you think we're in good position to do some things?" he asks.
Three months later, Ford travels to Miami to meet Willis and McNeil, supposedly for a black film festival. He gets a tour of E-Cycle's yacht and an earful of Willis blabbing interminably on his cell phone at lunch one day. Scholl's tapes, in contrast to the government's tapes, present Ford as quiet and mainly interested in the music business and women.
The man who came to dinner: The government wants to start the Ford story at the dinner at Morton's. Ford came to the dinner, apparently without a personal invitation. Other legislators did not. Bowers, like Ford, is a black Democrat from Memphis. The road through Bowers and Dixon, another early target, would logically lead to Ford.
Ford's self-assessment as political godfather was not shared by everyone. In tapes played at Dixon's trial, Dixon says to E-Cycle executives that "we're all leaders in the Senate." And Bowers says, "The Senate didn't have no leaders." Also, Barry Myers, a Dixon understudy who testified against him at trial, says on tape that the powerful Sidney Chism-Willie Herenton Democrats "don't give a fuck" about the Fords.
What are the risks of the entrapment defense? It's a chess game, and prosecutors can counter with evidence such as the Rolex watch gift from developer Rusty Hyneman to Ford to bolster their predication argument. It is still early in the trial, and Discenza likely has more witnesses and more evidence that he might not have been able to put before the jury without the entrapment defense. There has already been testimony that Ford was involved in three previous FBI investigations.
Could the bribes be construed as legitimate? The intent is as clear as the video quality. McNeil always brings the conversation around to E-Cycle legislation so there is little, if any, chance of the payment being depicted as a legitimate consulting fee. Ford, of course, drives home the nature of the payments by playing the part of the dutiful legislator in the early tapes and, in the later tapes, threatening anyone who rats him out.
So, it's a slam-dunk case? Never. That's for the jury to decide.
Where's Tim Willis? In the wings. The government will have to put him on the stand to talk about the witness-intimidation charge against Ford. He will take his standard beating from the defense (this will be the third trial in which he has testified) and will be questioned sharply about his moviemaking, which could suggest that he saw the whole thing as a sort of "Tim's Excellent Adventure" project to advance his career.
Deleted scenes: Like the dozen or so reporters in the courtroom each day, the defense and prosecution are each trying to create a storyline for an audience by selectively choosing quotations, characters, and incidents. Scholl has effectively changed the plotline for now, but his points are sometimes hard to decipher. Discenza works faster and always has his witnesses repeat what he considers to be key statements.