TRAFICANT ON TRIAL It's time to wrap it up, judge tells rep

The congressman said if he defies the judge's order, it won't be the first time.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- The buzz here is that U.S. Rep. James A. Traficant Jr. will shuffle his cowboy boots to the witness stand and become his racketeering trial's star witness.
"I would be surprised if he didn't testify," said Lewis R. Katz, law professor at Case Western Reserve University. "It's why he wanted to be his own lawyer in the first place. I don't think he'd miss the opportunity to showboat."
Should Traficant decide to take the witness stand, he would have to say "Question," then state the question and wait to see if there is an objection. Before answering, he would have to say "Answer," and not use the answer to give a speech.
Taking the stand opens him up to cross-examination by Craig S. Morford, lead prosecutor.
Today's ultimatum -- that U.S. District Judge Lesley Brooks Wells delivered in no uncertain terms to Traficant on Wednesday -- was crystal clear: "After these [three] witnesses testify, you will have to be the next witness. If you don't take the stand, we will go into closing arguments."
Traficant, of Poland, D-17th, said he "would try" to get a records custodian from an out-of-business concrete company, a man who did work at the congressman's horse farm and a private investigator who already testified.
Even if Traficant managed to get the three witnesses to court today, something he failed to do Wednesday, Judge Wells predicted the testimony would not take long. She warned Traficant to keep in mind that Morford has objected to the proposed testimony, calling it irrelevant.
"The case ought to be closed," the prosecutor said. The trial, which began Feb. 5, is in its ninth week.
As of Wednesday, Traficant had called 25 witnesses, 22 of whom testified in front of the jury. The remaining three gave testimony that the judge ruled inadmissible.
Ran out of witnesses: Judge Wells sent the jury -- nine women and three men -- home at 11:05 a.m. Wednesday when Traficant ran out of witnesses. She told the jury to return today with enough clothes to last two to three days, a sign that the panel will be sequestered.
What the judge did Wednesday has, in effect, shut down Traficant's defense.
"It seems to me that unless [Traficant] can produce witnesses, he's shutting it down," Katz said. "It's totally improper to keep a jury coming in and sending them home."
Katz said Traficant has had plenty of time to subpoena witnesses.
Morford said in court that the congressman has known since his May 4, 2001, indictment what the case involved.
The congressman, who turns 61 May 8, is accused of taking kickbacks, compelling staffers to do work at his horse farm in Greenford, accepting bribes and gifts and using his influential position instead of paying contractors for work at the farm.
Before she released the jury, Judge Wells said she could only conclude that Traficant had nothing further to present -- unless he wanted to testify on his own behalf. She asked if he intended to testify.
"I'm not sure yet," Traficant answered.
He said he wouldn't take the stand unless Morford does, which is impossible because the prosecutor is ethically prohibited from being a witness. The judge also has ruled against it.
Aside from having Morford testify, Traficant said he would testify if 29 conditions were met, an offer the judge soundly rejected. The conditions were really questions about prosecutorial misconduct and audiotapes the judge had previously ruled out.
Like every other defendant, Traficant has a right to testify. He does not, however, have the right to attach conditions, the judge said.
Attacks on judge: Traficant, reacting to his trial's ending by a decree from the judge, shouted at her that he hadn't been allowed to have all his witnesses testify.
The congressman identified seven witnesses whose testimony was barred because it involved conversations they had with others. Had they been allowed to testify, he said, each would have been on the witness stand two to three hours.
After jurors left Wednesday, Traficant accused Judge Wells of "poisoning the jury" by asking in its presence if he intended to testify.
Katz doesn't see the judge's question as a problem.
By posing the question to Traficant, the judge simply wanted to know how he was going to proceed, Katz said. The congressman, the law professor said, has a right to have the judge instruct the jury that declining to testify cannot be a factor when considering guilt or innocence.
"I think he's just groping," Katz said of Traficant's accusation that Judge Wells poisoned the jury.
What is illegal, Katz said, is a prosecutor's commenting on a defendant's not taking the stand in his own defense.
"He pushed her into it, trying to figure out whether he would testify or do final argument," the law professor said. "She has a right to schedule her courtroom."
Judge Wells expressed that very sentiment when Traficant asked what right she had to stop his trial. The judge said she has a right to control the court proceedings.
The law professor called what Judge Wells did "a reasonable order."
Defiance: "I'll rest when I'm ready to rest," Traficant defiantly told the judge. He said he wouldn't oppose the judge's suspending the trial a few days.
She didn't respond to the offer.
He then accused the judge of violating his rights and made a motion for a mistrial.
Morford said the government often had 10 to 12 witnesses who sat for days waiting to testify. He said the prosecution never ran out of witnesses because it didn't want to inconvenience the jury.
"Day after day [Traficant] ran out of witnesses," Morford told the judge. "He has no witnesses."
Traficant insisted that he does have witnesses. "My case does not rest," he said.
Later, Traficant told the judge that if she poisons the jury one more time she'll have to send a U.S. marshal for him because he won't return to her court.
She reminded him that today's testimony would be brief and he could finish preparing his closing over the lunch hour. Traficant shouted that the judge had shredded the Constitution into "toilet tissue," and pointed to the court reporter and said, "Put down 'Charmin.'"
Closing arguments: Judge Wells told the congressman and Morford to have their closing arguments ready for today. Each side will be given 90 minutes, with the prosecution going first and reserving some of its time for rebuttal.
Morford had asked that closing arguments be given Friday, but the judge held firm. She told both sides to be ready to present their arguments today, likely this afternoon.
After Traficant formally rests his defense, the judge will read jury instructions, which could take roughly an hour. At the conclusion of the closing arguments, more jury instructions would be given before the jury begins its deliberations by choosing a foreman.
After court Wednesday, Traficant commented on the judge's order to have his closing argument ready for today.
"There's nobody going to make me do a damn thing. It's the United States of America, still. This isn't the old Soviet gulag," the congressman said. "I don't give a damn who ordered anything. If I decide to defy a court order it won't be the first time -- and I may do that."
Traficant said the judge talked only about the jury's rights, not the defendant's rights. Actually, the judge said she's there to ensure that both sides get a fair trial.
Puzzled by actions: Katz said he can't understand why Traficant has prolonged his defense.
The congressman, Katz said, runs the risk of annoying the jury. Rather than sympathizing with him, jurors may feel he has inconvenienced them.
Katz said, in the end, "all [Traficant] needs is one sympathetic person who feels he's getting a raw deal."
The Vindicator asked Katz what would happen if Traficant used his closing argument as a way to tell the jury about all the evidence that has been barred from the trial.
The judge has not allowed certain secondhand conversations and audiotapes of interviews the congressman did with witnesses or co-defendants who talked about being intimidated by the government.
Traficant has to be careful in how far he goes, Katz said. Although he'll be given some latitude, the judge won't permit him to make statements about issues that have been prohibited.
A lot depends on whether the prosecution objects or the judge, on her own, stops the congressman if he goes beyond the bounds of a closing argument, Katz said.
Whatever happens, Katz said he is sure Traficant will raise certain issues on appeal.
"It's not over by a long shot," the law professor said.
The Vindicator asked Katz what would happen should Traficant decide to testify and, under cross-examination, not be responsive to the questions posed by Morford.
The judge, Katz said, would instruct the congressman to answer.
What's she going to do if he doesn't? Such a demonstration, in an ordinary case, could boomerang, Katz said, causing to jury to question if there's any reason to find Traficant's defense credible. The law professor said he couldn't make a prediction.
Traficant said "it's a horse race" and he thinks he has a chance of winning.
The judge's remarks in front of the jury, Traficant said, "were highly, highly volatile, actionable and did poison -- and I believe with intent -- the jury. I'm disappointed in her."
meade@vindy.com