Norm Pattis

Fieger Trial: The Tyranny of the Reasonable

There comes a point in every trial where lines are drawn and warfare yields bloodshed. Today will be such a day in the case of US v. Fieger. To win this case, Fieger's lawyer, Gerry Spence, must strike boldy and without fear. He must topple a tyrant today, and that is the tyranny of the reasonable.

"Why did Spence take this case?" a fellow asked me in the gallery yesterday? "Don't ask me," I said. "I am just a spectator." But the stakes are pretty well displayed in a note to yesterday's post here "Will Spence Matter?," sent pseudonymously by "Deepthroat". The case is less about Fieger than about the Government's power to consume its critics under cloak of law, he writes.

Deepthroat writes with the passion of the converted. He reminds me of a student I saw at TLC, a wealthy man in his own right from the Southwest who has declared himself a latter-day Sam Adams; he literally bought himself a place in the hearts and minds of students and staff alike. He, like Spence, knows the people and their needs. Leave him be to fight the people's fight. He, like Spence, knows best. In Deepthroat's view the Fieger trial is a political trial. Fieger may be a fool, but so is everyman; so, for that matter, is the Government. Hence, the fight. Perhaps. (Memo to Deepthroat: I have not received a target letter, but I have thus far in my career been advised to take the Fifth when once the Government asked questions.)

In US v. Fieger the atmosphere in the courtroom is calm, sometimes circuslike. Judge Paul Borman struggles valiantly to create an aura of good cheer. At sidebar, he smiles, nods, cajoles the parties to see the law as he sees it. It is easier to rule that that way. Government's counsel stands, arms-clenched, jaw tight, a vice squeezing itself. Spence, by contrast, lumbers; he stands close to the judge, preaching the people's case. Today he must find a way to preach to the jury and not the judge.

Lawyers and judges share a hermetically sealed world of case law and convention. We take the fact patterns of other lives and impress them into forms known at law. Over the course of years, we acquire a sense of what is reasonable based on what has occurred before. Reasonableness can cripple a lawyer.

Spence needs today to shake loose of Judge Borman's tethers. The facts and the law work against Fieger in this case. If Deepthroat is right, and this case has larger significance, then Spence must take the case to the only people who really matter in this case, the jury. He can't do that at sidebar. When the Government objects today, as it will, and the Court calls for a sidebar, Spence should stand his ground and withdraw the question. Let the people hear the case, he should intone.

Of course, all jurisprudential Hell will break out at that point. And perhaps it is time that such a thing happen. Jury's can't nullify, we say in the law's chambers, but they do decide cases. Their vision of what is reasonable will yield a case's outcome.

Of course, such a course can backfire. The law, some say, is reason's thread, the tie that binds us together. A jury could well find that Fieger's conduct showed arrogance bred of wealth. The testimony yesterday certainly shows how soiled is the election of judges; the Fieger firms spends a good deal of time and money supporting candidates of its choice. Just who elected them to represent the people anyhow?

And what of Spence, the man who never lost a criminal case? I have not, Deepthroat, come to bury this man. I've come to watch to see what I can learn. I have great misgivings about his pride, and about your arrogant claim to be some sort of secret representative of "We the people," knowing what is best for us when we ourselves are too daft to notice. Reading Deepthroat's note reminded me of long summer day's and nights in Wyoming on Spence's ranch, and the mad scramble among the converted and those who wanted badly to be regarded as notiates to see who had the biggest, er, anatomy of all. Deepthroat, my dear, yours are fine, but a psuedonym? What cowardice? Say what you mean and own it man. I've said my piece about Spence and have, as I did yesterday, looked him in the eye after saying it. Truth doesn't lurk in the shadows.

Is this a trial about an evil administration bent on destroying the people? I don't think so. I think it is a case about what Fieger may well have done to himself. Whether Spence can make the jury care enough about his client to acquit is a test of his greatness. Whether the jury gets to that issue is the test that answers whether even a great lawyer matters when confronted with bad facts and bad law.

Fieger Trial: Will Spence Matter Tomorrow?

I may as well be in Dayton, Tennessee in 1925. A great lawyer is going to cross-examine a buffon tomorrow. It's Gerry Spence versus Special Agent Ayr O. Gance. Spence will slice, dice and shred this wisp of man. He will entertain and perhaps educate the jury using all the tools of a trade he has mastered in a lifetime of brilliant work.

Will it matter? Darrow lost the monkey trial -- the facts and law were against him. But history recalls the loser. Why? The message was more compelling.

In modern times, bumbling federal agents often make trials far more interesting than they should be. Why? They cannot give a simple answer to a simple question. They spend too much time trying to outwit the defense lawyer during cross examination. I've never seen a deer stare down a speeding car.

Here are some inescapable truths the FBI agent in this case ought simply to give up lest he and the bloody mat covering the courtroom floor become indistinguishable:

1. The FBI does not have a policy requiring that interviews of subjects be electronically recorded. That is because law enforcement wants flexibility in its investigations. It might make for a better record in cases to record interviews, but it is not done. Yes, it would have been more fair to tape all interviews in this case.

2. The agents involved in this case were all hot and bothered about taking down Fieger. The brash lawyer has been taunting law enforcement officers for years. His apparent fall from grace was a source of some twisted satisfaction the agent cannot deny.

3.  The Fieger investigation was special. It was directed from Washington and scores of agents were used in a manner unlike any other campaign finance investigation the agent is aware of. You don't hunt elephant with a fly-swatter.

4.  The agent was from time to time rude and overbearing, and, at times he misled folks. Civility is not required by the law. Indeed, the United States Supreme Court has sanctioned deceit by law enforcement officers.

In other words, the agent should stop acting like a, well, Richard Tracy, and just answer questions. Instead, misplaced pride will yield a wildly entertaining cross-examination. The agent will be at times defiant, reflective, evasive and even truthful. But he'll also come off as a used car salesman.

Who is responsible for the training of federal agents on testifying in court? That person should be tarred, feathered and shipped to Iraq in a prayer rug. I have never cross-examined a cop or FBI agent and not had a field day. Truth is simple and univocal. Speak it in words such as yes, no and I cannot answer that question with a yes or no.

Have fun tomorrow, Gerry. Slay the beast sitting smuggly on the stand. But don't lose sight of the following: When the show is over the jury still wants to know why Fieger was using strawmen to finance a fellow trial lawyer's dreams of power. The facts seem clear enough on this record.

The sad reality of criminal work is that just as a prosecutor can indict a ham sandwich, a prosecutor with a pulse can sleepwalk his way to a win. Lynn Helland showed nothing in court today, except patience. Sadly, that may be all he needs to get a verdict.

Fieger Trial: The Special Agent Testifies

I did not quite score a front-row seat in US v. Fieger today. Those were taken by the lawyers trying the case. But I wasn't far behind the bar. It was a good day for the Government, if the jury was paying attention.

Fieger and a partner stand accused of violating campaign finance laws by using strawmen to contribute to the presidential campaign of John Edwards. There was an avalanche of evidence today in support of that claim. U.S. Attorney Lynn Helland produced hour after hour of documents and monotone by the lead agent in charge of the investigation.

Most powerful evidence? People working for Fieger earning $1,100 in biweekly salary contributed $2,000 to the campaign. They were then immediately reimbursed for the contributions by Fieger's firm. This much seems indisputable.

It should have taken a half an hour to produce this evidence by way of an illustrative chart, but Helland seemed intend on milking the clock for all it was worth. He is short man, not quite trim, with the bearing and countenance of the owner of a failed apple orchard: everything is a scowl. What personality he had at birth has been submerged and hidden by a mountain of sorrows.

Of course, one needn't have a personality to be a prosecutor. Indeed, passion is an invitation to claims of prosecutorial misconduct. Defense counsel get to act up. Defendants should not.

I sat several rows behing Fieger and I was stunned. Judge Paul Borman uses a white noise device to fill the courtroom with an annoying static while side bars take place. The jurors seem to have bonded, and were animated during the morning's side bars. As they giggled and gabbed, we spectators sat quietly. Not so, Fieger. He beamed as though he were still running for Governor. I kept looking to see if his bright countenance was returned or ever acknowledged by jurors. It appears not. Is he kissing babies at a morgue?

The day's session ended at 1 pm. Helland could not quite fillibuster the day away without turning the proceedings over to the defense. Gerry Spence wasted no time grilling FBI agent in charge of the investigation. Why hadn't one of the agent's interview with Fieger been taped? No federal policy to tape such interviews, the agent said. Yet the same agent tape recorded a telephone conversation between a fired Fieger employee and Ven Johnson, Fieger's partner.  It was a classic encounter between agent and defense lawyer: ask a simple, but pointed question, and then suffer the monotonic chatter of an agent who wants to be in control.

The day ended dramatically, which, I am sure, was no accident. When Spence challenged the agent by asking whether the case was a big deal to him, the agent sputtered. Spence then asked, "Can you tell me a case in the history of the world in which ..." "Objection," the prosecution interjects. "Okay, the United States," Spence says. The court summoned counsel to a sidebar, tossing aside that the question would be improper even if confined to Michigan.

Oddly, the judge dismissed the jury and then resumed the side bar when the jury was not even in the room, insisting that the white noise still sound so that assembled spectators could not hear legal argument. What kind of nonsense is that, Judge Borman?

Cross-examination resumes tomorrow. Spence is clearly a great showman, and the jury is entertained. But the evidence, well, the evidence speaks for itself, and, depending on the judge's charge to the jury, it may be enough to convict. The defense needs to decide on its primary theme: either the conduct is perfectly lawful and it matters not what the defendants knew, or the defendants knew nothing.

And the biggest question of all: Will Fieger testify? Based on what I saw today, I would beg him not to take the stand were I his counsel. He seems not to understand just how perilous is his position in that courtroom.

Fieger Trial: The Last Chance To See A Master

DETROIT -- This afternoon I checked the news to see what was happening in the Fieger trial. It appears that on Thursday, the Government will put its case agent on. Then Gerry Spence will cross-examine the man. I sat down to write about this showdown between the lawman and one of the last remaining populist cowboys in America.

"I would give an eyetooth to see that," I started to write. I looked at the clock. It was just after three. To hell with the eyetooth, I concluded. I booked a flight to Detroit and am now at my hotel in the Motor City, some eight hours later. I'll be up early tomorrow to get a seat in the courtroom.

I went to high school here, graduating from Denby High School a long, long time ago. The city scared me then. It seemed friendly tonight as I made my way downtown. I plan to check out some of the old neighborhoods after trial tomorrow: the court day goes only from 9 a.m. to 1 p.m.

On the flight over I wondered why this extravagance? Haven't I enough to do in Connecticut? But then I remembered traveling to Spence's ranch in 1997 to spend a month at the Trial Lawyers College. I returned the next two years to serve as staff. I went to Wyoming to see what Spence had to say. But I never got to see what he could do. That will come tomorrow.

But it is more than simply wanting to learn from a legendary lawyer. As the plane bumped across the near midwest, it struck me: Spence is our century's Darrow-like figure. But, oddly, he is more of a populist than Darrow ever was. He's not book-learned, although he is the author of many books. Imagine William Jennings Bryan as a trial lawyer; Spence as the great commoner. Reverse roles at the Scopes monkey trial and imagine Spence as Bryant devouring Darrow.

Tomorrow and the next day I suspect I will see an age-old theme re-enacted: David sauntering up to Goliath in the name of the people, trying to topple the behemoth. The themes may not quite fit the facts in this case. Fieger isn't exactly Pa Kettle fighing off the robber barrons. But great trial lawyers paint in colors bold enough to find their story in even the most dissonant facts. Tomorrow is Spence's last chance to preach about the people and liberty when liberty is quite literally on the line.

There's a light drizzle in Detroit tonight. I've packed a fresh shirt and will request an early wake up call. I want to get a seat in the courtroom, if I can. Tomorrow may be the last chance ever to see Spence cross-examine an oh-so Special Agent of the FBI. I'm glad I made the trip all the way here, eyeteeth or not.

I'll keep you posted.

The Last Chance To See A Master

DETROIT -- This afternoon I checked the news to see what was new in the Fieger trial. It appears that on Thursday, the Government will put its case agent on. Then Gerry Spence will cross-examine the man. I sat down to write about this showdown between the lawman and on one of the last remaining populist cowboys in America.

"I would give an eyetooth to see that," I started to write. I looked at the clock. It was just after three. To hell with the eyetooth, I concluded. I booked a flight to Detroit and am now at my hotel, some eight hours later. I'll be up early tomorrow to get a seat in the courtroom.

On the flight over I wondered why this extravagance? Haven't I enough to do in Connecticut. But then I remembered traveling to Spence's ranch in 1997 to spend a month at the Trial Lawyers College. I returned the next two years to serve as staff. I went to Wyoming to see what Spence had to say. But I never got to see what he could do. That will come tomorrow.

But it is more than simply wanting to learn from a legendary lawyer. As the plane bumped across the near midwest, it struck me: Spence is our century's Darrow-like figure. But, oddly, he is more of a populist than Darrow ever was. Imagine William Jenning Bryan as a trial lawyer; Spence as the great commoner.

Tomorrow and the next day I suspect I will see an age-old theme re-enacted: David sauntering up to Goliath in the name of the people, trying to topple the behemoth. The themes may not quite fit the facts in this case, Fieger isn't exactly Pa Kettle fighing off the robber barrons. But great trial lawyers paint in colors bold enough to find their story in even the most dissonant facts.

There's a light drizzle in Detroit tonight. I've packed a fresh shirt and will request an early wake up call. I want to get a seat in the courtroom, if I can. Tomorrow may be the last chance ever to see Spence cross-examine an oh-so Special Agent of the FBI. I'm glad I made the trip all the way here, eyeteeth or not.

More Blunders In Fieger Trial: Will U.S. Have The Sense To Sit Down?

Rumor has it that jurors sent a private note to U.S. District Judge Paul Borman in the Fieger trial: "Can we go home now? We've heard enough." After eleven days of evidence, I suspect that is true. Why doesn't the Government have the good sense to quit?

The star of today's show was Fieger paralegal SueEllen Sander, testifying under the ubiquitous cloud of immunity. She was called as a government witness. But what people will remember is her testimony that the FBI so bullied her that she became disgusted with the ham-handed antics of agents. When federal prosecutors called on her to testify, she honored her subpoena, but refused to meet with them to prepare her testimony.

Are there minimal standards of competence for federal prosecutors? Even law students know you don't put witnesses on the stand without preparation -- at least not friendly witnesses. And, by the way, how did Fieger's lawyer know to probe this topic without a friendly wink and nod from the immunized witness?

This case has the look and feel of a traffic court fiasco. If the government was too busy or too distracted to prosecute this case with diligence and competence, it should have dismissed the charges.

As predicted, the defense managed to blunt the damage done yesterday by Wendy VonBuskirk. Yesterday's declarations about Fieger's telling her not to cooperate with the feds today sounded like a mere bad hair day. The former Fieger publicist told the jury today she was only guesing about what Fieger wanted, and that he hadn't said nearly as much as she reported yesterday. Again, Uncle Sam, did you not know what this witness would say? The difference between a clear recollection of a statement and an assumption about what someone meant it really not all that hard to discern.

This is the best Justice can do? I've judged mock trials with advocates better prepared than this.

But all was not doom and gloom for Uncle Sam. Fieger's personal trainer testified. (Oh, for shame. Six days a week at 6 a.m. with a trainer and the jowls still jiggle! Poor, poor Geoff.)

Richard Fincher's testimony alone is enough to clinch the Government's case. Fieger asked him to contribute to the presidential campaign of John Edwards, Fincher said. When the trianer balked, crying poor, Fieger told him not to worry about it because "he would be taken care of." So the trainer wrote checks, and Fieger did as promised, providing enough money not simply to repay the contribution, but to cover the taxes as well. 

The defense continues to toy with inconsistent defenses. It contends as a matter of law, that Fieger's conduct did not violate the law, a position that Judge Borman disagrees with. As a matter of fact, the defense contends that Fieger didn't encourage folks to contribute and promise to repay them. Some jurors will be quick to wonder why Fieger is so eager to deny innocent conduct.

The government is promising to rest this week, perhaps tomorrow. It ought to. Let's see what Fieger's team has for a defense. The chief remaining drama in this case will be watching Spence direct Fieger. Brilliant though he is as a storyteller, Spence may not be able to control Fieger. Geoff wants what he wants, after all. Should Fieger testify will he prove the age-old maxim known to litigators: "You can lead a client to the courthouse, but you can't make him think"?

The trial is a sputtering flame. Either put it out now or get another candle.

Bad Day For Fieger In Detroit

The Government announced that it may rest in its prosecution of Geoffrey Fieger as early as tomorrow. Why not end now? After yesterday's evidence, Fieger is in trouble.

A contractor working for Fieger and producing a newsletter dedicated to, who else, Fieger, testified that the Michigan lawyer asked her to contribute to the presidential campaign of John Edwards, then reimbursed her a sum sufficient to cover the contribution and taxes on the income, then told her to blow off the FBI. Wendy VonBuskirk tried to wiggle off the Government's hook yesterday by equivocating some, but the message was clear: The rent-a-pen journalist producing the Fieger Times was a pawn in Fieger's hands. What next, Fieger in drag as Statue of Liberty?

Cross examination today should be a prediictable affair: "Isn't it true, Ms. VanBuskirk, that Geoff never uttered the words "you play and I'll pay?"

"It is true," she'll whimper.

"You assumed that he'd reimburse you, isn't that what you said yesterday?"

"Yes."

"In fact, Ma'am, you invested in Edwards because you knew Geoff supported him. You thought it was good business to support the man he supported, correct?"

"Yes," she'll say. "Yes, that's right," smiling now for the first time.

"There was no plan to reimburse you, was there?"

"No. There was no plan."

The Government's redirect should consist of one question.

"Ms. VanBuskirk, do you believe in miracles?"

Of course, the rent-a-pen didn't have to speak to the FBI, none of us do. And when Geoff told her not to say anything, he was merely reminding her of her rights, as good lawyers are wont to do. When Fieger told her to tell the FBI that she was an Edwards supporter and to "keep it at that," he wasn't trying to hide anything, or induce her to hide things. He was just being helpful. No criminal intent there; no guilty knowledge. Pssst. Great views from this bridge I own in Brooklyn; want to buy it?

The defense needs to work a miracle of its own today in Detroit. Yesterday was a banner day for the Government, one of a few shining moments in a case marred by strategic blunders and something bordering on incompetence. End on a high note, Uncle Sam. And end soon.

Fieger Trial: Week Three And The Themes Are Set

When trial began, it was reported that the case of US v. Fieger would consume all of five weeks. I suspect that forecast has been shattered. At the rate things are going, the case could end in early July. That's a shame, really. The trial's major themes are now set. Additional evidence looks a lot like torture.

For the Government: "Ladies and Gentlemen, Geoffrey Fieger is a wealthy trial lawyer, a man of extraordinary persuasive ability and of even greater wealth. That wealth bred arrogance, the sort of arrogance that led him to conclude he was above the law.

"He wanted to be a player on the national political stage. The man who would be governor wanted to be a king, or at least, a president maker. He tried to divert his wealth to another wealthy trial lawyer, John Edwards. And he did so in a way that trampled on the very law that made him so wealthy.

"As the court will tell you, it is unlawful to use so-called strawmen to skirt campaign finance laws. Mr. Fieger claims the law was not clear. That is subterfuge. The law is clear. Listen to Judge Borman read it. Mr. Fieger read it, too. He just didn't like what it said. So he impressed employees, their children and vendors into the service of his ambition. That is the very essence of corruption, and, in this instance, guilt.

"No one is picking on poor Geoffrey Fieger. He put himself in a position to pick and choose which law to obey. No man is above the law, not even Mr. Fieger."

For Mr. Fieger: "We the people, you, me, Mr. Fieger -- we the people created a government to serve simple ends, and that Government acts through the rule of law. But who rescues us, who offers safe haven, when the Government uses the law to crush the people? Jurors.

"Make no mistake about it. You sit where Adams sat, where Madison sat. You are a founder today renewing an old and almost ancient compact among free people in the face of a Government turned to corrupt ends.

"Geoff broke no law, save the unwritten law that says to the lion, 'you are king of this forest; devour what you will.' Geoff had a dream of justice for all. He  lived that dream as a trial lawyer, and then he saw that dream made flesh in the person of John Edwards. Geoff wanted this man to be president.

"So what crime did he commit? He tried to give some of his wealth away. Other people who shared his dream contributed to Edwards. Geoff reimbursed them. He made a political action committee of we the people. Only the lion, that hungry beast feasting off the fat of the land, did not want to be tamed. It is all right if corporations feed the beast, but don't let the people feed the lion tamer.

"Don't be fooled, ladies and gentlemen. This isn't a case about rules evenly applied. It is a case about who can and should govern. Corporations, greed, power captured the White House in 2004, and there wasn't anything Geoff could do about it. But today, those same interests want to silence him and make you the executioners.

"We're a free people, we the people. Speak loudly and clearly today in a voice even plutocrats can hear: Geoff Fieger is not guilty."

The rest of the trial will simply revolve around these very simple and powerful themes. Even if it takes another six weeks.

No Jury, But Plenty to Worry About In Fieger Today

Despite press reports to the contrary by the Detroit News and the Detroit Free Press, the trial of US v. Fieger has been adjourned until Monday. Here's the entry from the docket sheet at the courthouse in Detroit.

Minute Entry for proceedings held before District Judge Paul D Borman: Jury Trial as to Geoffrey Fieger, Vernon Johnson held on 5/7/2008 Disposition: held and continued to 5/12/08 at 9:00 a.m.(Court Reporter: Sapala) (Defendant Attorney: Spence, Nevin, Fishman) (AUSA: Helland, Day) (DGoo) (Entered: 05/07/2008)

Even so, the defense team continued its attack. Yesterday, Fieger's counsel renewed its challenge to the manner in which the jury was selected. Counsel sought permission to file a motion under seal asking the Judge Paul Borman to reconsider his denial of an earlier motion to dismiss based on claimed irregularities in jury selection.

Motions under seal are generally disfavored in the federal courts. There is a presumption that pleadings are public documents. The First Amendment, after all, guarantees the right of public access to the courts.

Judge Borman denied an earlier motion to dismiss two weeks ago. Fieger claimed that the pool of jurors summoned in this case was underrepresentative of Wayne County, and, therefore, of people of color. The Sixth Amendment guarantees a defendant a jury of his peers, and that means a fair cross section of the community. Fieger claims he has been deprived of such a jury.

Here's a snap shot of the data supporting the claim. The District plan for selecting jurors in the Eastern District of Michigan requires that jurors called from the Detroit courthouse be drawn from a master pool that proportionally weights each county. The weighted percentage reflecs the number of registered voters in each county. Wayne County, in which Detroit is located, comprises 39.62 percent of this pool. Of the 186 people who filled out jury questionnaires, only 46, or 24.73 percent, were from Wayne County. That is 15 percentage points and four standard deviations lower than it should have been.

A similar picture emerges with respect to people of color. Twenty-two percent of the nine-county region from which jurors are drawn are African American. Yet only 18 of the 186 folks filling out questionnaires were African American. Another seemingly significant statistical difference.

Fieger and company are seeking more information about how this disparity came about.  To make constitutional hay of these numbers Fieger needs to show that a distinctive group has been excluded from a jury pool such that the pool does not fairly reflect the community. That much seems obvious from the limited data available to date. But the blockbuster issue requires a showing that there is a systematic exclusion of the group from the selection process. That's harder to prove.

In April, Judge Borman granted Fieger's request for some additional information about this panel of potential jurors. But the court only agreed to give the defense access tor records regarding the 250 people sent summons to serve on this panel; only 186 made their way into the pool from which jurors were actually selected. Fieger asked for information on the last 15 panels summoned; it will be hard for him to prove systematic exclusion by examining just one panel.

So why the request for reconsideration under seal? Has the defense a smoking gun? Is there more and better proof that race matters in the selection of juries in Detroit? Or is the defense shooting blanks, as is so often the case when raising this claim? One would think the local papers would be all over this. But no. Silence. I hope the Detroit Free Press and Detroit News intervene through counsel to insist that new filings on this issue not be under seal.

Race matters far too much in our courtrooms. Most juries underrepresent communities of color. It isn't right, and the issue ought not to be swept under a rug.

A Little Drama In Fieger Case, But Still A PG-13 Affair

Every witness at trial comes at a cost. The test of a good trial lawyer is whether he can cover the cost by obtaining something of value from the witness. If you can't cover the cost, don't call the witness. It is an elementary rule, really. But it seems lost of the Government in the case of USA v. Fieger, now concluding its second week of evidence.

Trial has rules. A fundamental rule is that, absent something unusual, an advocate cannot ask leading questions of his own witness. Hence, the who, what, where, what-happened-next quality of direct examination. Good direct showcases the witness.

Not so with cross-examination. Focus here is on the advocate; a good one can lead a witness into troubled waters, telling a competing narrative that all but erases the direct examination. Indeed, Terrence McCarthy of Chicago teachs a technique he calls "look good cross," designed to help enhance the credibility of the cross examiner. Score two points every time a witness answers "yes;" one point when he says "no;" and zero points for anything else. A "perfect" 100 question cross yields 200 points.

Rule Number One when calling a witness: Prepare your witnesses. Make sure you understand what they are saying. And then engage in some practice cross-examination. Put some heat on 'em to see what they'll say.

Had the Government done so with Attorney Jeffrey Danzig, I doubt it would have called him. Danzig cost the Government a fortune. Danzig told the jury that the practice of reimbursing employees for political contributions was routine among the elite of law firms. The high-profile among the bar do it all the time, he said. In fact, Danzig went on to say, it happened all the time at the Lopatin-Miller firm, where he worked for a number of years. (Note to feds: The practice is not routine among we middle-brows of the bar who struggle week by week merely to make payroll.)

That had to make the jury gasp at this marauding Achean slipping out of the Trojan horse. Will the Government regroup? It can, if it asks the right questions. First, this looks like another blame-the-dead guy trick. Lopatin-Miller is defunct. When reporters tried to reach a former partner of the firm to confirm this, the partner was, surpise, surprise, out of the country. Do you believe in coincidences? I don't in this case.

Government counsel Lynn Helland was once again reduced to objecting to the releivance of his own witness's testimony. Put another way, Spence once again bent the Government lawyer over and commanded "bleat!" Who prepared Danzig for the Government, Fieger?

The Government fared better with the testimony of Eric Humphrey, a former Michigan state trooper who once worked for Fieger. Humphrey had concerns about whether it was lawful to reimburse employees for political contributions. He showed Fieger a newspaper story about a fellow placed on house arrest for doing just that.

Fieger's response? "[I]f he got placed on house arrest, at least he'd be in a very nice house." Ouch. The Government, too, can play the wounded populist card.

But Spence was quick to raise doubts about this witness. Fieger fired the fellow for excessive tardiness. Mr. Humphrey also owed Fieger money, and, the coup de grace, had sued Fieger just last year for wrongful discharge. Spence waived around a demand letter for $575,000 written by Humphrey's lawyer, calling the demand "extortion."  (For law nerds: The Sixth Amendment's confrontation right trumped the evidentiary rule prohibiting admissibility of settlement offers.)

On balance, a better day for the defense than the Government. Two weeks into trial the Government's case has yet to take flight. Fieger and company don't look good either, but it's not yet time to get fitted for prison jumpsuits, or, as Fieger hopes is the worst case, to call the interior decorator to redo his home for a term of house arrest.

The temperature is rising in the courtroom, apparently. But the water is a long way from boiling.