VITULLO-SAADEY TRIAL Gains: Immunity was expedient

An unexpected visitor was in the federal courtroom Wednesday.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- Mahoning County Prosecutor Paul J. Gains granted immunity from state charges to three federally convicted ex-lawyers who testified in the racketeering case against James A. Vitullo and Russell J. Saadey Jr.
The Vindicator found the disclosure in a U.S. District Court transcript of testimony given by Boardman attorney James R. Wise, a prosecution witness and federal felon who has immunity from further federal prosecution. He testified without state immunity during the Vitullo-Saadey trial.
Wise received a 13-month sentence in September 1999 on a mail fraud conviction, misappropriation of a client's funds, and had his law license suspended. He now works in the shipping department of Hoover Racing.
Jurors in the Vitullo-Saadey trial entered their third day of deliberations this morning, considering evidence that spanned Vitullo's time as an assistant Mahoning County prosecutor and Saadey's as a prosecutor's investigator in the early to mid-1990s.
The case was prosecuted by Thomas J. Gruscinski and Bernard A. Smith, assistant U.S. attorneys.
Who they were: The three ex-lawyers who testified for the prosecution with state immunity were Jack V. Campbell, Lawrence J. Seidita and Stuart J. Banks.
The men pleaded guilty to paying bribes to judges and prosecutors in Mahoning County and were compelled to testify as a provision of plea agreements reached with federal prosecutors. They were exempted from further federal charges and received reduced prison sentences.
Campbell received 16 months' electronically monitored house arrest. Seidita and Banks each received split sentences of eight months' incarceration in a halfway facility and eight months' house arrest.
James A. Philomena, who admitted he took bribes when he was Mahoning County prosecutor, reached a similar plea agreement with federal prosecutors. He's served about half of his four-year prison term.
He, too, testified as a prosecution witness in the Vitullo-Saadey trial. Unlike the ex-lawyers, Philomena was subjected to state bribery and perjury charges, which added two more years to his sentence, to be served in a state prison.
The state immunity disclosure for Campbell, Seidita and Banks took place at a sidebar conference at the bench of Judge Kathleen M. O'Malley -- out of earshot from the jury and gallery.
David J. Betras, Saadey's lead attorney, raised the immunity issue with Judge O'Malley after Wise answered questions put to him by Smith.
What was said: To that point, Wise had admitted that he attempted to fix a DUI with Vitullo and had fixed DUIs with Fred H. Bailey and Martin W. Emrich, both convicted of taking bribes when they were Mahoning County judges.
The following reflects excerpts of what was said at the sidebar conference:
Betras: Your honor, so there's no problem with this -- and I just thought of it because I just looked at some of the other exhibits that Thomas [Gruscinski] was kind enough to provide me. The other witnesses are going to come in and admit crimes they've been given immunity by Paul Gains. His name [Wise] wasn't on that list.
Smith: That's right.
Betras: And so he's got no state immunity. Does he need to be read his rights, is what I'm saying.
Smith: I should inform your honor with respect to witnesses ... Seidita, Banks and Campbell, those witnesses raised with us the issue of possible state prosecution in light of what happened to Mr. Philomena. Mr. Craig Morford of our office wrote a letter to Paul Gains, which has been disclosed to the defense, asking Mr. Gains to exercise his prosecutor discretion, so to speak, in light of the policy of the Mahoning County prosecutor's office not to duly prosecute defendants, and to confirm that intention in the case of Mr. Campbell, Mr. Banks and Mr. Seidita. Mr. Gains wrote a letter back to the U.S. attorney's office saying that as long as ... the three were cooperating, that they would not be prosecuted by the state, based upon what their testimony was. ... Mr. Wise has never raised that issue with us. So I let a sleeping dog lie.
Maridee L. Costanzo, one of Vitullo's lawyers: Don't you think the court has to advise this kid? It's a little late now.
Smith: The rights, your honor, are self-executing. You have to assert your Fifth Amendment rights. This man is not in custody. There is no requirement under Miranda or any other constitutional decision of the Supreme Court or the Sixth Circuit that I'm aware of that this man has to be advised of his rights at this point.
Judge O'Malley: This man has a J.D. [juris doctorate]. He's practiced criminal law. He has chosen to voluntarily testify and he certainly could have anticipated the state prosecution if he wanted to, and if the issue had been raised before he started to testify, I might have called him over and confirmed that, but he's already testified, already waived any privilege that he could have asserted. I'm not going to raise any implication that he should not have testified.
Back to the witness: The questioning of Wise then began in open court. Betras pointed out that Wise's felony conviction had nothing to do with bribes, and Wise said "Correct."
Betras asked if Wise was facing prosecution for bribing Emrich.
"No, sir," Wise answered.
In referring to Wise's plea agreement with federal prosecutors, Betras asked if Wise wanted to please the government, adding: "Well, you don't want to be prosecuted, do you?"
"I don't want to be prosecuted," Wise replied.
"OK, and you want to make the prosecution happy, correct?" Betras probed.
"I want to testify truthfully," Wise answered.
The thrust of the defense in the Vitullo-Saadey trial was that witnesses with federal plea agreements that compelled their testimony caused them to implicate the defendants to assure reduced sentences.
An unexpected visitor, meanwhile, was at the federal courthouse Wednesday and wandered back to where reporters and friends and family of Vitullo and Saadey sat waiting for the jury to return a verdict.
Andrew Polovischak Jr.'s mustache is gone and he looks leaner and fitter than when he served as a Youngstown Municipal Court judge. Polovischak, who admitted taking bribes as a judge, received a 30-month federal prison sentence, which he began serving in August 2000.
He said that he has been working out and is now being housed at a halfway facility in Cleveland and due to be released in mid-March 2002. He said he was at the federal courthouse to file a motion but didn't elaborate.
Saadey, who is known as "Champ," turned 47 today and had hoped for acquittal as a birthday present.
meade@vindy.com