For the better part of two days this week, Buffalo’s top criminal defense lawyers took turns challenging, critiquing and at times even mocking the government’s case against Operating Engineers Local 17.
Defense attorney Mark J. Mahoney suggested politics were behind the prosecution and that a desire to silence organized labor always lurked in the background.
Kevin W. Spitler accused the government of over-reaching, and Rodney O. Personius called it a case based on liars, perjurers and sick men.
“Convicted lawbreakers who made deals," Personius said. “As expected, that is the centerpiece, the cornerstone, the linchpin of the government’s case."
The trial of five union members accused of threatening and intimidating non-union contractors went to the jury Wednesday but not before some of Buffalo’s most prominent lawyers, including one of the government’s most seasoned and savvy trial attorneys, went toe to toe in their closing arguments.
During a two-hour summation, Assistant U.S. Attorney Anthony M. Bruce compared Local 17 to a bank robber and said the breadth and scope of its criminal conduct made it almost impossible to believe former president Mark N. Kirsch’s repeated denials of any involvement.
“To say he knew nothing about what was going on is like Mark Kirsch saying he walked through a hurricane and didn’t get wet,” Bruce said at one point.
Unlike most of the trial, which focused on the testimony of contractors and union members, the closing arguments gave the attorneys a chance to drop the gloves.
Joel L. Daniels, another well-known defense lawyer, used his summation to pick apart the government’s case, most notably its use of audio recordings of his client, former business agent Thomas Freedenberg, and encouraged the jury to listen to them again.
“You’ll never hear him threaten anybody, you’ll never hear him intimidate anybody," Daniels said of the tapes, suggesting at one point that they help Freedenberg more than they help the prosecution.
Like Personius, Mahoney attacked the credibility of the union members who pleaded guilty and are now cooperating with prosecutors.
He pointed to the large number of witness revelations that came to the government’s attention in the weeks leading up to the trial and suggested they are by their nature suspicious.
Mahoney went so far as to suggest that the government’s motivation in prosecuting Local 17 had more to do with politics than the law.
He told the jury that the case is part of a larger national effort to stifle organized labor, especially aggressive unions like Local 17, and that his client, former business agent Gerald Bove, got stuck in the middle.
When Bruce objected to his comments, Mahoney ended his summation, looked at the jury and said simply: “You can ask yourself why Mr. Bove was indicted.”
Bruce countered by using a PowerPoint presentation that listed the evidence and testimony – there were 67 prosecution witnesses – against each of the five defendants.
He talked about a landfill contractor who says Bove threatened him and a golf course contractor who claims Freedenberg purposely slowed down his project.
He also singled out Kenneth Edbauer, another co-defendant, for comments he made about union vandalism while on a picket line in Buffalo.
“The recordings speak for themselves,” Bruce said. “The recordings don’t lie.”
And he talked about Michael Caggiano, the union member accused of stabbing a contractor in the neck with a knife.
He reminded the jury of the two former union leaders who testified that Caggiano came to them looking for help in hiring a lawyer and insisting he had stabbed the contractor on behalf of the union.
More than anyone else, Bruce focused on Kirsch, the former local president well-known in the labor community.
He read from the laundry list of charges against Kirsch and listed the 16 witnesses who testified against him.
“Sixteen witnesses,” Bruce said. “Can 16 people be wrong on every aspect of their testimony as it relates to Mark Kirsch?”
While Bruce and Personius dominated the closing arguments, there was no shortage of legal firepower in the courtroom.
In addition to Daniels, Mahoney and Spitler, defense lawyers Daniel J. Henry Jr. and Brian M. Melber were on hand as well. So were prosecutors Robert Tully and Edward H. White.
Personius took on many of the witnesses Bruce heralded and, one by one, attacked their credibility with the jury.
He accused one of them, a former Local 17 business agent, of lying on the stand, and described another one, a union organizer, as the “sick man” who wrote a threatening letter to the wife of a contractor.
“I’m going to tell you this,” Personius said of the letter writer, “He committed perjury. And he did it to try and harm Mark Kirsch.”
In every instance, he said, the witnesses lied because they felt pressure to come up new evidence that would help the prosecution, and help them gain some leniency in their sentences.
Like Personius, Spitler spent much of his closing argument poking holes in the credibility of the government’s witnesses.
He also dismissed the government’s undercover recordings of Edbauer talking about union vandalism.
The government, Spitler said, never produced a single shred of evidence linking Edbauer to an actual act of vandalism.
“Ken Edbauer is not part of a conspiracy,” he said. “The government is over-reaching is bringing this charge against him.”
Unlike most of the defendants, Caggiano has admitted to some wrongdoing. He did indeed stab contractor Timothy Such, but claims it was nothing more than a bar fight.
His lawyer says anyone suggesting it was more than that, that Caggiano was acting on behalf of Local 17, is making things up in order to please the government.
“You have to be wary of witnesses who are trading their testimony for leniency,” said Michael G. O’Rourke, Caggiano’s lawyer.
The jury began deliberations Wednesday afternoon and will resume today. The case is being heard by Chief U.S. District Judge William M. Skretny.