8:59AM Think we're going to have a late start this morning. Lines are pretty long at the courthouse this morning because it's immigration day. Kwame Kilpatrick is just entering the courtroom with his lawyers and Bobby Ferguson follows shortly thereafter. Bernard Kilpatrick, in a summery beige suit, and Victor Mercado were already seated at the defendants' table.
9:03AM Judge Nancy Edmunds enters the courtroom. "Ready to go?" she asks the court.
Jurors are shuffling to their seats.
9:05AM Agent Carol Paszkiewicz cross examined by Martin Crandall for Victor Mercado.
Crandall says he has exhibits from the Judge John Feikens files.
Is it fair to say that over the past many years you half looked over half a million texts? No. More like 300,000 to 500,000.
Fair to say the texts were from the mayor's inner circle, "Kitchen Cabinet"? Give me names.
Most texts were mayor, Ferguson, Beatty and Derrick Miller to begin with. miller was Information Officer and Chief of Staff? Yes.
Kandia Milton? Yes.
DeDan Milton his brother held a position in inner circle as well? Yes. Believe he was an aide to Mr. Kilpatrick.
Mr. Mercado was dramatically smaller? I wouldn't say dramatically.
My client is 500 texts whereas we are looking at 500,000 texts, less than a percent? Yes. at one point I did a review of just your client and Kwame. Witness says it was less.
Dramatically less? It was significantly less, yes.
As you looked at Mercado's they were business like? Yes.
August 22 2004, Sunday morning text on sinkhole. Got a text from his deputy. Know from messages we know Mercado was on the scene? Yes he was.
I mean manner in which he texted? Yes.
Typical of texts that he was very professional? I agree with that.
Is it fair to say, it seems clear that the texters that included "zeke", Miller, Ferguson and Kwame and they talked of Victor being "full of shit", "slick man", derogative words. Fair? Yes that's fair.
Victor not involved in texts about meeting? Yes I agree the texts from yesterday maybe only one or two involved Mercado.
One of the texts said "do we trust him" in February 2005? That was not entered in evidence yesterday. But yes it exists.
Is it fair to say, based on the texts in this DLZ scenario from yesterday, Victor was not in the trusted confidence of the speakers? I am not going to verify that statement. If you'd like I'lll clarify why.
9:17AM Crandall has walked away from his microphone and his questions are inaudible.
One of the exhibits John Minock was going to put in the other day is the org chart of the water department. You aware of it? Yes.
Judge Feikens involved in water litigation since 1977, he collected a room full of documents which you've looked at? Yes.
Last Tuesday Mercado and I were out of court to look at those water documents from Feikens? Yes.
Letter from January 2003 from Mercado's water deputy to Feikens- is that a fair chart? Yes it is. Don't remember on aspect on it though.
Witness says Board of Water Commissioners appointed by mayor.
Witness says they didn't have to go to through Board of Water Commissioners for water contracts.
Looking at the DWSD Reorganization Plan on overhead. At top is Board of Water Commissioners. Director under them and Deputy Director under that.
This reorg a product of IMG? I don't know.
IMG started contract in May 2002? Yes he was here June and July 2002.
Losing so many questions because Crandall not talking in microphone.
Anthony Adams was another water director who was not an engineer? No he was not an engineer.
Judge Feikens obviously very happy with Victor? I read the order. Yes Judge Feikens was approving of the decisions.
Witness says Feikens was very approving of steps taken under Mercado's directorship.
The initial contract for IMG was for 90 days and it was extended beyond Mercado's tenure.
Judge Feikens through court orders was directing direction of water department? Yes. It was very unusual nationwide to have a judge controlling that.
These exhibits show that in the 6 years Victor was in the water department he was dealing with Judge Feikens, in this very chamber, and John Joiner with IMG. IMG was an oversight group? They would advise the judge and Mercado. they would provide counsel to both ends.
They looked at 142 contracts? Yes.
Witness says that what they were asked to do in the first 90 days of contract.
Basically it seems that Crandall is suggesting that Judge Feikens was the ultimate power in things to do with water department. Also outside group IMG was monitoring and counseling on water contracts.
9:33AM Have you reviewed these exhibits? Yes, 8 through 13.
So these are reports on behalf of IMG to Judge Feikens copying Mercado in February 2003? Yes.
And here is DWSD Contract Procurement Oversight? to be clear its the cover page.
And this document is an agenda for December 2004 that shows Judge Feikens, includes Mark Jacobs a lawyer for water department, John Joyner. So in the meeting there were many people? Yes.
And then this document is an agenda for February 2005 for the same crew that outlined their meeting? Yes.
Last document of February 28th 2006, a comprehensive report of IMG to the Judge and Mercado? This is the change orders and contracts they looked at over the reporting period.
It goes through many change orders, many contracts, it has details on pumping stations. there were 25 contracts in that report? Yes. It's a lot.
For the entire 6 years that Mercado was there from July 2002 until his departure in 2008.
Witness says when you say report to IMG, they discussed certain data. He certainly did report, in some aspects, to Feikens.
IMG could have what they wanted? I would not agree with that based on my investigation.
Witness says that this was a proposed reorganization by IMG in 2002 but doesn't know if it actually happened. Not saying it couldn't be, just that she doesn't know that.
Judge Feikens meeting with Mercado and team monthly over 6 years? Yes, I agree.
Looking at a document in Judge Feikens files which showed that when he was involved in search for new water director when Mercado decided to leave in July 2008, Feikens was canvassing country to see appropriate wages. In LA, it was $329,820 for example (Not mentioned today but we know that Victor made less than that at $240,000).
You talked yesterday about the sibling contracts 2014 and 2015? Yes.
And the pilot project that led to 2012?
Pilot was 1347 that became CM 2012 on the downtown water main projects.
That was an ambitious project? Yes I agree with that.
It dealt with a momentous opportunity for Detroit? The Super Bowl asks witness?
Yes says Crandall and the All Star Game.
Crandall says it was ambitious because it was "like spaghetti underground"? Those were the words used yes.
Some of this infrastructure was at least a century old and fragile. It was aggressive and ambitious? EPA agent says that a lot of the witnesses she spoke to felt a lot of pride in that project.
They got this done in 2 years, 3 years less than the prognosticators were saying? Yes I believe so says witness.
Companies competing? Yes says witness it was get your work done and you'll get more.
They got it done, it was complicated and there was a tremendous amount of paperwork? I didn't look at the engineering files. I'm assuming there was a lot of paper.
Project very successful? Yes.
And for Mercado overseeing this, he's got a lot of irons in the fire? I would say so.
Water main break on Jefferson Ave in July 2002. Do you remember they described dragging this guy from Puerto Rico out on the street?
Judge Edmunds says to Crandall you need to ask questions.
So he was on the scene like the sinkhole? I wasn't there...It very well could have happened.
Witness says yes, the sinkhole was an emergency response.
Crandall introducing sinkhole texts.
Crandall says he is trying to show jury the dialogue between Mercado and Kwame on august 22nd 2004. That Mercado was very professional? Yes.
Texts indicate he is on the scene? Yes.
It was an 150 foot sinkhole? Witness says she doesn't know the size but "it was enormous."
Victor to Kwame: "11 foot sewer collapsed 15 mile between moravin and Hayes. Road closed 6 homes evacuated. Electric power out for 800 to 1000 homes..."
There had been another sinkhole previous to Mercado that took 5 years instead of the year Mercado took says Crandall.
9:59AM Mike Rataj for Bobby Ferguson cross-examines.
You've been EPA agent for how long? 15 years.
Been involved in other criminal cases and investigations? Yes.
You understand witness sequestration? Yes.
That is where witnesses are precluded from coming to listening to witnesses testify? Yes.
That's done to prevent witnesses listening from tailoring their own testimony? That's one of the tenets, yes.
But that's what sequestration is for? I'm not an attorney, I've not read it but I would see reasoning for that.
You like your colleagues can be in courtroom when witnesses are testifying? Yes there is an exception for federal agents.
Chutkow objects. Judge overrules but says be careful to Rataj.
How many agents coming in and out of court at this point? I'd say 6.
You, IRS agent Sauer, FBI's Beeckman and who else? There are two other agents who sit in the back.
You've heard testimony over last 3 days, Mr. Edwards and the DLZ witness? Yes.
Remember Executive Order 4? I was asked about Executive Order 2003-4.
Document on overhead. Witness says that it is not 2003-4 and doesn't remember reading it.
You agree that racism has existed since founding father put their Hancock’s on Declaration of Independence? Yes.
You would agree that racism still exists? Yes, it does.
Even in our lifetime Affirmative Action has been legislated? Yes.
Looking at businesses opportunities? Yes.
You can't say Executive Order was designed to give business to minorities? I haven't looked at this one.
Rataj asks witness if she wants to look at the Executive Order. "If you want me to," says the witness. Rataj hands it to her.
Witness reads document.
Defense lawyer Susan Van Dusen whispers something in Rataj's ear as document is being read.
Goal of the administration is to give 30% of contracts to Detroit-based businesses says the document.
You reviewed Feikens file and you didn't come across this? There were 10s of thousands of documents. It could have been in there.
The one you saw is similar to that? Yes.
Witness says addresses racism by giving business to certain percentage of residents.
You would agree that Detroit based and headquarter business should benefit? If they qualify absolutely.
You would agree that citizens of Detroit should also benefit? Yes.
You have no problem with goal of Executive Order? "No. I'm a female law enforcement officer sir. I think I've faced discrimination in my life," says witness.
Rataj can't pronounce DLZ's witness's last name so referring to him by first name "Pratap".
Witness says I will agree with you that he (DLZ witness) addressed the city with an idea.
There was a backlog? Yes a backlog and a need.
"I've spent an inordinate amount of time in sewers investigating illegal discharges" says EPA witness. Eeeewwww.
Mercado willing to give pilot project a try? Yes.
Wanted to open up more businesses to women, minorities and small businesses? Yes.
You interviewed Pratp on November 19th 2009? I believe so yes.
And he told you they had decided to use minority contractors? I believe so.
And that there were only 3 qualified minority contractors in the city? Yes.
Hayes, Ferguson and Wili McCormick? Yes.
Pratap selected Hayes and Ferguson for pilot? I don't know if he selected them but they were selected.
Would you agree with me that no one threatened him with future economic harm if he didn't hire Ferguson? I absolutely agree with that.
He testified that both contractors came in under budget on the pilot? I can't remember that but don't remember anything to the opposite.
Rataj gives witness report to refresh her recollection.
In terms of you report it came down under budget and in schedule? I’ll admit that often times at counsel table I'm looking at documents at other things. So don't remember him say it.
But he said it in interview in 2009? Yes.
You would agree that 2012 was an umbrella contract that had multiple other contractors? Yes.
And 2012 was supposed to have as many as 7 contractors? Yes.
And it was an RFP contract? Yes I remember Mr. Edwards testifying that.
Email on overhead from Pratap at DLZ to Daniel Edwards at DWSD. December 24th 2003. Saw this email in court yesterday. Clearly indicates that it will be an RFP evaluation and not lowest bidders. Strong preference to be given to Detroit based businesses. As many as 7 contractors working. Special attention needs to be paid on ability to perform and past performance.
So says Rataj the 2 contractors for pilot were Ferguson and Hayes, 2 Detroit-based companies? Yes.
Wouldn't it make sense FEI and Hayes would have a leg up because they had helped make pilot project a success? No.
You don't agree with that? No. Can I explain why asks witness?
No- Rataj shoots witness down.
Now looking at DLZ letter to Awni Qaqish at DLZ.
Witness can't read document on overhead. Kwame's lawyer Jim Thomas comes over to straighten document.
The letter recommends giving contracts to Hayes Excavation and Ferguson Enterprises based on pilot project performances for downtown main work.
Witness says there are many steps a water contract will go through to be awarded if it's not done through a special administratorship.
A memo from Mercado to Audrey Jackson head of Purchasing in finance Deportment. time stamped January 13th 2004. It lists 4 contracts awarded 642 and 649 to Hayes and 650 and 651 to Ferguson Enterprises and 1 other.
In the memo, DWSD asks for authorization to proceed with Emergency Procurements for the contracts listed. Emergency Procurements necessary because water mains are so deteriorated they require immediate work.
The combined cost for the 5 contracts is $3.8 million.
It says Hayes and Ferguson have demonstrated ability through the pilot project and they are both minority businesses.
Document is signed by Mercado and approved by Audrey Jackson.
Judge says this is a good place to take a 20 minute break.
10:57AM Judge back in the courtroom. Mike Rataj making nice with Judge Edmunds, talking about her favorite subject, the Tigers.
EPA Agent Carol Paszkiewicz takes the stand again so that Rataj can finish his cross.
Do you remember yesterday in your direct testimony some text messages and documents? Yes.
And he asked you to make connections? Connections, no. Elements of time.
Then you and I will agree to disagree says Rataj.
Documents related to CM 2012 and the pilot project? Yes.
Looking at text from February 18th 2004.
B:" "Hate to bother you, but you need here this, pratap people stopped negotiation with my people and is trying to give water main job to one of other contractors."
B:"Is just what you said before when we are not, apart of the decision making, we get fucked no matter how the process started. you still in the office."
A month prior to that Hayes and Ferguson were slated to give the projects? Yes by that document.
March 19th 2004- document from Awni Qaqish to DLZ. Regarding contract CM 2012. Awards contracts to the 3 lowest bidders Posen, L D'Agostini and Lanzo for 654,655, and 656.
Witness says they are big but Walbridge is bigger as is Inland. Posen, D'agostini and Lanzo not minority owned.
Rataj says this document about a month after the text message we read of February 18th? Yes.
You are aware that DLZ had bonding issue for 2012? They were never asked for it says witness so I wouldn't call it a bonding issue.
DLZ just managed the execution of these contracts? Yes.
Rataj brings out another document. Message from Michael Faith with DLZ on March 19th 2004, same date as previous document, addressed to Daniel Edwards at DWSD. Lists contracts under CM 2012. Has the numbers WS 642 for Hayes, WS 649 Hayes, WS 650 and 651 for Ferguson, Eagle construction had WS 653, Posen had 654, 655 for D'Agostini and 656 for Lanzo. So those were contractors for those contracts? Yes says witness.
So there was a contract not listed that is not awarded? no it's here.
Wasn't there a 657? I'd have to see something to refresh my memory sir.
At this point, there is one minority contractor who has been awarded a contract?
Rataj and EPA agent get into it a little bit.
Witness says that she needs to see contract file to see chronology of events.
As of this date it looks like it has been awarded? It is absent from the document, yes.
Document from April 1 2004, 2 weeks after previous document, to Pratap at DLZ. Asking to assemble contract documents for 657 to be awarded to Willie McCormick.
McCormick had contract 657? He did.
How many messages did the government obtain from the defendants and others? Somewhere between 300,000 and 500,000.
How many texts being used in this trial? About 200.
Would you says that Ferguson is someone who has tremendous racial pride? Pride asks witness.
He's proud to be a b lack man? I would hope so says witness.
He's a type A personality? "So am I" says witness.
And he wanted to help other black people? Yes.
He did speak in colloquialisms- Rataj can't spit it out and says "you know what I'm taking about".
"He used street language!" says Rataj.
He used Black Man as salutation? Yes he did says witness.
He called Kwame Black? Yes he did.
He used different language than you would? Yes.
As of February 18th 2004. At the time of this text message, McCormick had been left out of the contracts. So couldn't "my people" be McCormick.
Do you read minds asks Rataj.
Isn't it a fact that he could have been talking about McCormick?
Witness says it's not a fact but it's a possibility.
Rataj says so it's a fact that it's a possibility.
When Ferguson says "we" he could have been referring to black people, black race? I don't know answers an exasperated witness.
Now looking at March 18th 2004 document from Awni Qaqish to Mercado where it recommends rebidding. Attached is price comparison on Washington Blvd. At this point, DLZ had intended to give 5 contractors contracts asks Rataj? Yes says witness.
Document lists bidders by rank of bids, lowest to higher. this document meant nothing because this wasn't a low bid contract but and RFP contract?
It wasn't a low bid contract, yes or no? Witness says she can't answer yes or no.
Didn't Edwards say it was an RFP contract? I am not going to answer that.
Rataj says "oh so you refuse to answer that".
But on document of December 24th 2003 it says right here they are going to use RFP process? Yes answers witness.
Witness is not happy with questioning by Rataj. They are giving each other major attitude.
Ferguson contract 650 was for $821,475 and 651 was for $720,195. Biggest contract went to McCormick who got $1.6 million.
Looking at Lanzo Construction change order #12 which listed original price at $1.4 million which became $6.3 million.
11:33AM According to your testimony yesterday, you said that by the end of the contract 650 was $3.4 million. But it's be clear that was not profit? Witness says I believe I said that was his revenues.
On 651 you said $3.5 million. Revenues? Yes.
Rataj asks how many change orders on the contracts. Witness says she remembers he had some but can't remember the number.
11:36AM Stopped because a juror had to rush to the bathroom.
Everything ok asks judge.
11:37AM How many change orders to Hayes have on 642? Can't remember sitting here says witness.
On 649? Can't remember.
How many revenues on 649? Can't remember.
Asks about change orders on 653, 654, 655, 656? Witness can't remember.
Asks about revenues? I don't know says witness.
L D'agostini had at least 8 change orders? Yes.
Went from $1.3 million to $5.4 million? Yes.
Lanzo had 12 change orders at least. Do you know how many they had total? No.
Went from $1.4 million to $6.4 million? correct.
WS 657 $1.5 million for McCormick how many change orders do you know? no sitting here no.
Do you know revenue total on 657? No I do not.
Rataj says he's done. but consults with Gerald Evelyn and comes back with more questions.
Rataj puts up document that says WS 650 ended up with $3.1 million and not $3.4 million as witness testified yesterday.
Witness says she reconciled all documents.
Rataj says where is the document? Witness says it has been produced and will be introduced in my later testimony.
Looking at contract 651- the document Rataj puts up says that the contract was ultimately $1.7 million instead of the $3.5 million she testified yesterday.
Yes that's what it says.
Rataj is done with witness. And she is so done with him.
11:45AM Jim Thomas, Kwame's lawyer, cross examines.
Talking about special administratorship and the orders that go with that.
You testified yesterday that Kilpatrick signed 2012? Yes says witness.
Do you remember telling jury that it was signed and approved by the mayor? Yes.
You understand that CM 2012 wasn't signed till 2004? Witness says that she would have to see signature page to verify that.
Special Administrative Order 2003-3. document from special administrator to City Council? Amongst others, yes says witness.
This is an award for construction management to DLZ? Yes.
Signature date is 6/28//03? Yes.
Do i have to go through with you the 2003 DLZ emails that go towards awarding contract? No.
Special administratorship appointed way before Kilpatrick was? Yes.
Amendment to special administrator order when Kilpatrick was elected? Yes.
Allowed Kwame to do a search for water director? Yes.
Witness says IMG had 90 contract not Mercado. Believes Mercado's contract was for 1 to 3 years. And yes, she answers thomas, it was extended.
The last paragraph on the order permits Mercado to enter into contracts for the center core of the city of Detroit.
Ferguson involved in pilot program? Yes he was.
The word expeditiously is interesting. What does it mean in this term? You're referring to Super Bowl and All Star Game.
All Star Game in 2005 and Super Bowl in February 2006 says Thomas? Yes.
The work had to be completed on or before June 2004? Those dates are commonly changed by change order says the witness. That segment of the contract they were awarded initially, yes, did have a contractual end date.
Witness says yes, everything was to be done more expeditiously than in regular contracting mode.
Lawyer Michael Naughton pushes microphone towards Thomas so he can be heard more clearly. Thank you.
Letter of Intent to Award contracts on July 2003 to DLZ from DWSD.
You were signed if it was signed by the mayor does it look like it to you? Clearly signed by Victor Mercado.
Thomas says that is still your position that Kwame signed the order? Yes that he was signed the order. But Mercado that physically signed contract.
Did you say that the contract was signed by mayor? Clearly I did.
Is it your position today? The contract document, no.
Witness says she should have been clearer. Mayor doesn't sign actual physical contract document.
Looking at document from September 9th 2003, do you remember that? Yes.
When was that? Not for several months. Probably May or June of this year.
This document was logged and indexed in your files? That of the government, yes.
You had forgotten about this document? Yes.
Letter from September 2003 from Gerald Moore to Daniel Edwards in DWSD. Letter specifically deals with who is supposed to sign contracts for CM 2012.
Thomas makes fun of previous witness Daniel Edwards. "Helloooo" says Thomas. Kwame cracks up.
Document says the documents were delivered to water director for mayor's signature but deputy director said it should have signature for Mercado.
Thomas references text message brought up earlier today from February 18th 2004. Bobby talking about pratap people stopping negotiations and giving job to another contractor.
Were there more messages than shown here? Yes.
These texts were selected by you to show your position?
Prosecution objects. Thomas says did I just see her (the witness) signal prosecution to object?
There are 3 messages on the screen? Exchanges says the witness.
What is bolded in the messages is what is being communicated? Bold is to identify what is new.
Thomas asks how "what" could be read. Can't tell right? I can tell it's a question says witness. i just take it for the word.
But its open for interpretation? He is inquiring about something.
Is this all the exchanges they had that day? No because they had one later.
Now on to another text from yesterday.
Thomas says you made a mistake yesterday about Kilpatrick signing contract? Yes.
on February 18th 2004. This is an exchange between bobby and Derrick miller.
B: "I need to see you sir"
M: "Cool holla about 3:30."
Thomas says Miller's reply not right away is about 20 minutes later. Thomas juxtaposes 2 texts messages, exhibits 8 and 9. In the interim, Ferguson has sent a text to Kwame? Correct.
At 1:19PM, mayor's reply is "What" and nothing more? Yes.
Bobby text to Miller" I him with the boss this is real urgent." 1:28PM
Were you aware on February 18th, that Kwame was supposed to be at Gompers elementary school between 1:30 to 2:30PM.? No says witness.
Thomas puts up agenda page that shows a confirmed appointment at Gompers School at 1:30PM. Did you check it? no says witness.
Witness says looking at calendar entry, yes, it looks he was at Gompers School from 1:30 to 2:30PM.
Calendar shows that later Kwame had other appointments including a Jim Stapleton event at 6:00PM. Emma bell was also there.
Thomas talking about Cyrano de Bergerac, the literary figure with the big nose, in terms of interpretation of things.
The fund-raiser took place at lobbyist D'Alessandro's home.
Thomas goes back to texts of February 18th. "I him with the boss." Thomas says you took this to mean he was with Kwame? Yes.
Thomas says you filled in words that weren't there. this goes back to my Cyrano speech. Do you rul out the possibility that Miller misinterpreted line above? No he asked a question.
"You are there?" was Miller's text at 1:29PM.
Witness says that Ferguson and Kwame were communication with Miller what they want him to do with Mercado based on the totality of the message.
How can you fill in words based on something you didn't see? Witness says I did not fill in words.
Would you agree that the letter of intent in September 2003 predates that conversation? Correct says witness.
Do you agree that the special administrator's order authorizing Mercado to enter expeditiously on contracts predates that conversation? Yes.
That's almost 7 months earlier? Yes.
I have nothing further says Thomas.
12:29PM Mark Chutkow redirects for government.
Mr. Crandall charts you remember that? Yes.
Board of Commissioners? Yes.
Who had more influence Board or Mercado on water contracts? Mr. Mercado.
Can Mercado sign a special administartor contract without approval of Kwame Kilpatrick when he was special administrator? No.
Talked about monthly meetings with Feikens? Yes.
Did you inform Feikens about your investigation into water department?
Thomas objects. Judge asks what is your objection and Thomas asks for sidebar.
Did you advise Feikens of your investigation? Not that I'm aeare of.
So in 2006, nothing was disclosed to Feikens? No.
Did Mercado mislead Feikens after he authorized investigation into security contract? Yes.
Thomas objects. Judge sustains and says we are getting far off field.
From your investigation, did IMG review all contracts in this case? No they did not. They reviewed aspects for certain contracts. There were instances that after contracts were awarded they looked at them. By and large not involved in process.
Did Feikens and IMG express frustration at not receiving documents from Mercado? Yes.
Crandall talked about sinkhole communications and professional tone? Yes.
And whether Mercado was on the scene? Yes.
Did you look at whether mayor and Mercado meet at sinkhole? Yes.
Where there also text messages between Kwame and Bobby at that time? Yes.
Were there phone calls between Ferguson and Mercado at this time? Yes there were.
Crandall asked about Mercado being part of Kitchen Cabinet and focused on 2012 contract? Yes.
You said you couldn't agree that he wasn't in the Kitchen Cabinet. Why? Witness says there was information being communicated between the parties. When Crandall asked if it was true they didn't trust Mercado, witness says that messages indicate that there was a level of trust there and they were questioning it.