Trial blog: Kilpatrick defense expected to be done by Wednesday

Published On: Feb 04 2013 10:00:37 AM EST   Updated On: Feb 04 2013 12:05:53 PM EST
Kwame Kilpatrick feb 4
DETROIT -

Local 4 is inside the courtroom for the federal corruption trial of former Detroit Mayor Kwame Kilpatrick, Kilpatrick's dad Bernard Kilpatrick and his childhood friend Bobby Ferguson. Each day we bring you information from inside federal court as it happens.

Day 66 at the Theodore Levin U.S. Courthouse. Seems we will be hearing from former Detroit City Council member Sharon McPhail who will be testifying for the defense. Once a very vocal opponent of Kwame Kilpatrick's, the former councilwoman has become a supporter of his in recent years. She has been subpoenaed to testify in this trial. 

9:01AM Looks like counsel has left the courtroom again, likely for Judge Nancy Edmunds's chambers. 

Kwame and Bernard Kilpatrick are sitting together waiting for morning proceedings to begin. No sighting of Bobby Ferguson just yet. 

9:04AM In saunters Bobby carrying a briefcase and makes his way to the defendants' table.  

9:15AM It's musical chairs time and Kwame moves back over to sit next to Bobby. Another late start this morning with most be yet another evidenciary issue. 

9:35AM Still waiting!

9:37AM Finally, the lawyers are back and everyone takes their place in the courtroom. 

But now Kwame and Bobby have left the room and the judge has still not entered so we are obviously not set to go yet. These lengthy delays are becoming par for the course these days. 

9:41AM Judge enters and says they have met to discuss evidenciary matters and the ending of the trial. Judge says she needs enough to be able to do a Rule 29. Lawyers have until Friday to submit whatever else they need to. 

There is McPhail standing behind the defendants' table. 

Jury enters and judge apologizes to them. Tells them that she has been meeting with counsel for an hour to wrap things up. Judge says testimony of defense witnesses should wrap by Wednesday. Thursday and Friday will be off so that judge and counsel can prepare for the end of the trial. Closing arguments start Monday. 

9:46AM Sharon McPhail takes the stand. Superintendent of Detroit community schools is her current position. Witness started at Northeastern University for law school but finished law studies at University of Michigan. Started professional life at Ford as counsel, then was a US Attorney for awhile, worked with Wayne County prosecutors office for 10 years. Ran for mayor in general election against Dennis Archer. Served a term on City Council- 2002 to 2005. 

McPhail ran for mayor in 2005. Didn't make it through primary- that was Hendrix and Kilpatrick who did. 

McPhail agrees that Kwame was an underdog in that race as he was 38 points behind. She threw her support behind Kwame at that point.

Witness looking at newspaper article on vote recount at the end of December 2005.

McPhail describing City Council process as related to contracting. the Council authorizes budget and line items. Contracts come back to City Council for approval and they are voted on. Each City Council member has as much staff as their budget allows. 

McPhail says she wouldn't says she investigated contracts. If they had questions, they'd write them on a memo they would then place on the table and wait for answers. 

McPhail says she knows a little about the DWSD contracting process. Knew about the special administrator process. 

Witness knows that the Council handled some of the DWSD contracts. 

Looking at professional service transmittal contract for DWSD. McPhail says it looks familiar to her and it's the type of document she would see when it would go through City Council. 

Jim Thomas asks if she remembers contract 1368 amendment #4. No says McPhail. 

McPhail recognizes signature of Victor Mercado, then director of the DWSD. Knew of him but didn't really know him. 

Thomas asks what was going on in McPhail's life in August 2005. 

McPhail appears confused. "Politically," says Thomas. 

Polling demonstrated at the time that 20% of polled would vote for whoever she recommended. 

McPhail describing the intensity of running for office. 

"Very intense and very unpleasant," says McPhail of the campaigning for City Council.

 McPhail says the unpleasantness and intensity only increases as the field narrows. 

McPhail admits that contracting would be impacted by the electoral process. Never a prompt process, it would become even slower. 

Thomas asking if 7 1/2 months to clear a contract is unusual. 

"No, they often took a long time," says McPhail. 

McPhail saying that the mayor in the city of Detroit is responsible for all administrative matters relating to the citizens, City Council votes on whatever comes before them on the recommendation of the mayor. 

Thomas asks if City Council has the right to look at contracts independently of executive branch. 

"Yes," says McPhail. 

Witness says that often mayor's office would send over people to talk to them about things that were about to come before them. They would also get phone calls. 

"There were a lot of people who wanted to talk to us about contracts," says McPhail. 

McPhail says even contractors themselves would come talk to City Council. 

Witness says if contractor didn't get a contract and was aggrieved by it, they could come before City Council. City Clerk could receive a request in writing for this or a City Council member could be called in their office. 

McPhail says this was absolutely appropriate. 

Thomas asks about talking to consultants. 

"A lot of the contractors had consultants, yes. So they would come see us as well," says the witness. 

10:10AM McPhail says she interacted with Judge Feikens. 

"We were friends," says the witness. Explains that he became the overseer of the Water Department and that anything related to it had to go past him. 

McPhail describes Feikens as "brilliant." 

Witness says Archer and Kilpatrick were special administrators. Doesn't know if Coleman Young was. 

McPhail says the night after the primary she got a call to support the mayor. She declined to make an immediate decision. Was considering staying out of it. Then got another call from Kwame's people and agreed to meet with him and have a conversation with him. 

McPhail says after she supported Kwame, she helped him prepare for the debates. Close to when he was about to take office, Kwame asked if she wanted to come work for him and what was it she'd want to do. 

Witness said on 2 conditions. Not reporting to Christine Beatty is the first one. Second, she wanted to do things for people who live in Detroit: job opportunities, regulations being complied with on a state and federal level. 

Got a cabinet level position. McPhail says she was given responsibility of redesigning various departments in the city. 

John Johnson of law department reported to McPhail. Also Human Rights, Gerard Grant Phillips and Kim Harris reported to her. 

In earlier testimony, Harris said that Grant Phillips would invoke mayor's name to make things happen. 

McPhail in this position for 3 years, through 2008. 

McPhail says that she doesn't feel that Kim Harris was an effective administrator in Human Rights. 

Thomas asks if McPhail ever witnessed people extolling mayor's name to get things done. 

"It happened all the time," says McPhail of people trying to get what they wanted. 

McPhail says she knew Derrick Miller. Starting to talk about Miller coming to her office but US Attorney Michael Bullotta asks for sidebar.

 Michael Naughton hands McPhail a box of tissues. 

McPhail says she knew Miller when he was Chief Administrative Officer to the mayor and when she became counsel to the mayor. Witness says he was not at cabinet meetings, he was at IT when she got to the mayor's office. 

McPhail says she heard things about Miller. Says she already had her own opinions on his truthfulness. 

"I didn't trust him. He didn't tell the truth," says witness. 

Thomas asks if he was a truthful person. No says witness. 

McPhail also knew Emma Bell. Thinks she saw her in the office once the whole time she worked with the mayor. 

McPhail says that Kwame had two secretaries that sat in fron of his office and a large waiting area. She says that someone would take you into his office and you would meet at the long table in front of his desk. Says that sometimes other people would also attend meeting. 

Witness never heard speculation about Bell giving Kwame money. 

Witness knew that Bell did fund-raising for political people. Says she knows some people charge 10% commission for their fund-raising services.

McPhail says that Emma Bell was not a truthful person either. 

10:30AM McPhail says that people closest to Kwame had parties each year for his birthday, usually at a venue outside the office. Cabinet members, about 80 people, would contribute some sort of gift for the mayor. 

Recalls going to the Atheneum. But does remember much about gift collecting there. Says Christine Beatty would collect a "big ball of money" for Kwame at the office every year. Cabinet members would give at least $1000 or more. No one ever told them that they had to do it. Doesn't know what directors gave. 

10:33AM Thomas is done and Bullotta has no cross. McPhail steps down and we are taking a 20 minute break.

10:51AM Our first witness today was Sharon McPhail who served on city Council and worked as a cabinet member in Kilpatrick's administration. She seemed annoyed with the defendants, rolling her eyes when she felt they were talking too loudly. Seems she even asked defense lawyer Michael Naughton to tell them to keep it down a little. 

11:03AM Gerald Evelyn, Bobby's lawyer, calling the next witness. Thomas is not done but judge says there is no need to go in order. 

Theo Simmons, age 42. "Little bit somewhat employed" in demolition. Brother started E & T Trucking in 1991. Met Bobby in 1992-1993, at a construction site in Oakland Park. At the time, Bobby was working with his father. Witness worked with Bobby, driving trucks for his father. 

E & T did trucking and cement work. Did small jobs for Bobby, excavating with their small backhoe. Did a job for him that lasted 2 or 3 years. Did cement work for Bobby's AK Construction. Also did work for Glowrecking: water tap services and tie ins- tying new water main to old water main. 

Witness did work for Lakeshore on 2014. Says he saw the contract for it. Eric Simmons, his brother, handled the contract work. Witness says it was water main installing in January 2007. 

Witness says when he started he had never seen A & H. That is Tom Hardiman's, former Lakeshore exec who testified earlier in this trial, company. First check they received was for $407,000 from A & H. About 2 months after they started work. 

Looking at breakdown of contract work for 2014- lists E & T Trucking with A & H. Witness says that A & H was not involved with the work they did on Chalmers. Never saw any A & H equipment. Not on the site at Linden/Southfield either. 

Change order on Fox Creek in 2007. Witness first saw A & H on that site.

Evelyn asks to approach the judge. Bullotta, Chutkow and Thomas approach as well. 

Witness says that Ferguson helped get his brother's company started. Gave them a lot of work. Business was initially located at Schaefer St and had issues there with break ins. So they moved to Ferguson's old location. 

"It was a good thing cuz we had a building now. Instead of parking outside, we were parking inside," says Simmons. 

Simmons says they sometimes used Bobby's equipment and materials. 

Evelyn done. 

11:20AM US Attorney Mark Chutkow cross examines. 

Simmons says that his brother handled all the paperwork, he just did the jobs. 

Chutkow asks if he knows that E & T Trucking was on the 2014 contract but that Bobby wasn't. Witness does. 

Witness doesn't know if they hired consultant to get the job with the city. 

Chutkow asks to approach for sidebar. 

Chutkow asks if witness has ever seen check in front of him. Chutkow asks if he knows Bernard. Witness says no. 

Chutkow asks if his brother ever hired Bernard and Maestro Associates and paid him $40,000. I don't know says witness. 

Witness says his company is E & T Trucking Inc. which did business with Lakeshore. He was President of the company doing work for Lakeshore. He did fieldwork, his brother did all paperwork. 

itness says he was on the field, he just knew locations and water main work. That was it. 

Looking at application for certificate of payment. Witness knows nothing about this document and how it was prepared. 

Witness does not know everyone's relationship with each other. 

Evelyn objecting but judge says that he introduced document in direct. 

Talking about Willi McCormick and L. D'Agostini. Witness doesn't know what they did for work. 

Witness says the contract had E & T and A & H on it so they must have been a joint venture. Witness says that he never talked to Tom Hardiman. Says that his brother Eric Simmons handled the bills. 

Witness doesn't know if there was fee dispute between bobby and his brother. "I don't know anything about nuthin'," says Simmons. 

Witness says if his certification had been yanked he wouldn't have been able to work in the city. Chutkow insinuated that Bobby was trying to get E & T's certification yanked. 

11:31AM Evelyn asks if he knows someone Hussain. 

Evelyn is done.

11:33AM Lewis McVay from Muskogee, Oklahoma. Arrived in Detroit in 1972. Currently retired but did construction work. Says he is 65 but looks much younger. 

When first arrived in Detroit, worked for Dane Construction then Macomb Contractors. 

Also worked for Kalb Construction. Kalb was black-owned. Then worked for Hayes Excavating for 16 years in supervision, ran the underground. 

Ended up at Ferguson Enterprises Inc. Says he left Hayes Excavating because they were no longer be in the union so he had to leave. Says he had a very good relationship with Hayes. both shed some tears when they parted. 

Says he received a call from Ferguson asking if he would work for him. Wanted him to be a foreman but the witness didn't want that pressure. Ferguson asked him a few times and finally witness agreed that he would. 

"He said that he needed some black supervision," says McVay. 

McVay says that first project was on 8 Mile Rd from Keller to Hayes and from Hayes to I-75. This was roughly 9 years ago. 

Witness not familiar with number 2014. Remembers working on Fox Creek. Says he had a wrecking crew. 

Talking about working a broken water main site on Kercheval. Witness says he became familiar with A & H at that point. One young man from A & H was at the site. 

Witness says he doesn't remember meeting Tom Hardiman. 

Talking about MJ Reynolds who also worked with FEI. Says that Kenny Reynolds, MJ's brother and Ferguson's foreman, was also there.

Witness says they worked a long day and did not get any help from A & H. 

Worked for FEI roughly 6 years and in that time hired other people. 

Witness says he learned a lot about the business from Ferguson. 

"With Mr. Ferguson, you had to be accountable," says McVay. 

11:48AM Chutkow crosses. 

Chutkow asking about the water main site. 

Chutkow asking about 16 years he spent with Hayes and learning business from Ferguson. So asks him if he knows about costs. 

McVay says he knows about man hours. 

Witness acknowledges he worked on 2014. 

Chutkow asking about Hayes and if he couldn't pay union wages because he was losing city work. Witness says they bid on jobs. All he knows is he was getting out of the union. 

Can't answer whether Hayes was losing jobs with the city. 

Chutkow asks if he worked on downtown water main for Hayes. No says witness. 

Witness says he worked downtown for Hayes from Monroe to Greektown. 

Chutkow shows text about "hays excavation cussed out victor and told him stuff his job. 5 minutes later he calls me to find out when how fast we can do the job." 

Chutkow asks the witness if he knows that Ferguson laughed at Hayes. witness says he did not. 

Witness says that he wanted Hayes to do well with the city. Hayes was a minority enterprise that employed city of Detroit workers. 

Chutkow asks if it would upset him to know that the mayor and Ferguson were laughing about Hayes like this. 

Evelyn objects for about the 4th time. Judge overrules again. 

"Do you want my personal opinion, sir?" asks witness. 

"That's the only one I want," says Chutkow. 

"I wouldn't like that," says witness. 

Chutkow done.

11:55AM Evelyn continues. 

Evelyn asks if Ferguson ever said anything disrespectful about Hayes in front of him. No says witness. 

Witness concedes that Hayes was having problems with unions. Union went on strike against Hayes. 

Talking about graphite damage to Hayes's machines. Hayes thought it was union people doing it. Witness agrees this affected climate on the job. 

Witness says he still did union work but agrees that Hayes was bitter with the union. 

McVay steps down.

12:00PM All counsel heads to sidebar before the next witness. 

Judge says that there is an issue that has come up. We were going to hear from a short witness but this issue has to be resolved so we are going adjourn now and reconvene tomorrow morning at 9AM.

About the author

Alexandra Harland is a Princeton undergrad and has a masters degree in International affairs with Columbia. A Montreal native, she worked with the Daily Telegraph newspaper for a few years before transitioning to TV, when she worked at ABC News with Peter Jennings. Alexandra has also worked in newsrooms in both Detroit and Boston.

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