The Athens NEWS :: Athens, Ohio's only locally-owned newspaper :: Of dogs, cats and mafia bosses: With verdict pending in Gwinn case, attorneys trade final shots

Of dogs, cats and mafia bosses: With verdict pending in Gwinn case, attorneys trade final shots

Written by Jim Phillips

Thursday, 07 January 2010 01:02

In the criminal case against Athens County Democratic Party chair Susan Gwinn, a special prosecutor is trying to whip up a semblance of guilt out of whole cloth, and using the courts to conduct a “smear campaign,” according to her attorney.

The special prosecutor has argued, however, that the paper trail of money used by Gwinn for a political campaign make it clear that she broke the law.

Defense attorney Dennis W. McNamara maintained in a recent post-trial court filing that while special prosecutor Dave Yost may write eloquently about Gwinn’s alleged guilt, “verbose and fictitious argument cannot overcome a paucity of evidence, and it cannot subvert the truths of the facts established at trial. A dog remains a dog, no matter what words are used to call it a cat.”

Gwinn’s four-day trial in Athens County Common Pleas Court wrapped up late last month, and her fate is now in the hands of Judge William H. Wolff, Jr., who heard the case without a jury.

After investigation by Yost at the request of Athens County Prosecutor C. David Warren, Gwinn was indicted for theft in office, unauthorized use of property, money laundering and falsification. Later two bribery charges were added.

The theft and property use charges alleged that Gwinn allowed Democratic Party funds to be applied to her law firm’s advertising bills with a cable TV company.

The laundering and falsification charges alleged that she took $27,500 in donations from her brother and another man, applied most of the money to a political campaign in which she was running against Prosecutor Warren, then failed to report the source of the money on her campaign finance report.

The bribery charges related to an offer Gwinn reportedly made to members of the Ohio University College Democrats, that the party would pay $5 apiece for every early voter they brought to the polls.

Wolff threw these charges out, finding that one of the statutes under which Gwinn was charged was so vague as to be meaningless, and that under the other, he didn’t see that she had done anything illegal.

On the theft-related charges, Gwinn has testified that any misapplication of party money to her law firm’s bills was a mistake by Time Warner Communications, which provided her with invoices so hopelessly complex, she couldn’t unravel who owed what. (She often used her law firm account with the cable company to secure ad time in advance for party candidates.)

In a recently filed post-trial brief, Yost has noted that “Time Warner is not on trial,” and has stated that Gwinn knew perfectly well how to sort out the different billings, but never asked the cable company for the internal paperwork that she knew existed, and would have allowed her to pinpoint which ads had run for which entity.

“The defendant cannot avoid culpability by shutting her eyes,” Yost wrote. “She knew how to figure out what had run by looking at the affidavits, but she refused to ask for them – because she did not want to know the answer in December of 2007.”

In his earlier brief to which Yost was replying, McNamara had pointed out instances in which Time Warner officials acknowledged that there was “confusion” in the billing; that a Gwinn Law ad mistakenly ran in a political time slot; and that the company had made the mistake.

Yost has attempted to suggest that Gwinn was under money pressure, as she was about to launch her attempt to unseat Warren, and “she had to have cable television ads, and had to clear up her bills from the fall of 2007.”

McNamara called this “simply false.” Not only could Gwinn have run political ads in other media than cable TV, he argued, at the time she was a “long-term, valued customer of Time Warner,” who had established credit with the company.

“She did not have to ‘clear up her bills’ in order to place ads with Time Warner,” he wrote.

Yost has claimed Gwinn owed Time Warner $9,500 at the time she filed her candidate petition. Not true, according to McNamara.

According to one trial exhibit, he noted, at that time the party owed Time Warner about $2,500 and Gwinn owed around $1,500 – assuming this record is accurate. “Even now we don’t know for sure,” because of the confusion in the bills, McNamara wrote.

McNamara also called deceptive Yost’s attempt to suggest Gwinn was in dire financial straits at the end of 2007, to show some sort of motive for her to misuse party money.

After obtaining about three-and-a-half years worth of accounts from Gwinn’s law firm, McNamara wrote, Yost put together a document “focused on the most unrepresentative 13-month segment that could be found” to make it look like Gwinn was short of money.

Though these months showed average gross receipts of $18,600 per month, McNamara pointed out, the two months just before the 13-month period, January and February 2007, had combined receipts of well over $142,000. The months after the period looked at by Yost – starting with April 2008 – also had to be left out, McNamara suggested, because each showed gross receipts ranging from $20,000 to $35,000.

Yost says it’s “irrefuted” that Gwinn used party property, the only question being whether she did so knowingly.

Once again, replied McNamara, “saying it so does not make it so.” Witnesses who refuted this claim, he wrote, include Democratic Party Treasurer Lenny Eliason, two Time Warner officials, and Gwinn herself. “What the prosecution describes as ‘irrefuted’ was probably the most contested single issue in this case,” he added.

Yost has claimed Gwinn didn’t tell her secretary and campaign treasurer the source of the $27,500 for her campaign. McNamara noted that Yost interviewed the treasurer, Sherry Coon, but never called her as a witness.

Yost said that the defense’s claim that Gwinn couldn’t have falsified her campaign finance report, because Coon prepared it, is false for two reasons.

First, Gwinn was responsible because she told Coon to report the money as a personal loan from Gwinn to her committee. “If a mafia boss gives the order for a killing, it is no defense that he himself did not pull the trigger,” he added.

In addition, he noted, Gwinn “adopted” the finance reports as true statements and did not amend them.

The basis for the money laundering charge is that Gwinn had her brother make “structured purchases” of money orders, in amounts low enough to avoid federal reporting requirements, in order to keep their source a secret.

Even if Daniel Gwinn knowingly “structured” his purchases, however, this offense would apply only to him, not his sister, “since he made the money-order purchases without (Susan Gwinn’s) knowledge,” according to McNamara.

The point to remember, the defense attorney maintained, is that any money that belonged to Susan Gwinn, rather than to her campaign – whether that money came from a law firm client, from her brother, “from the sale of a used car, from prior wages held in an IRA or a deferred compensation account, or from a lottery ticket is not important. Once it became Susan Gwinn’s money, it was hers to use in any manner she saw fit, including a primary campaign for political office.”

Yost replied that it doesn’t matter whether Daniel Gwinn or the other donor intended their money to be a personal loan. Under Ohio law, a campaign “contribution” is defined by how the money is used.

“It is enough that the money is ‘received or used’ for campaign purposes (to qualify as a donation),” he wrote. And without the $27,500, he stated, Gwinn would have been unable to make a number of deposits to her campaign account.

As for the “structuring” being on the part of Daniel Gwinn, not Susan, Yost argued that while Daniel “may one day be asked to explain his actions to federal authorities,” his sister also did some “structuring,” by making piecemeal deposits to her campaign account, and running the money through her personal bank account.

Yost concluded his brief by urging that Gwinn’s case “is an important case, for it will serve as a guide for other politicians who may be tempted to commingle party money with personal money, and to hide the truth about who is paying for their campaign.”

McNamara, however, concluded that the case against Gwinn is – as Yost has labeled Gwinn’s testimony – “smoke and mirrors,” which doesn’t come close to proving criminal wrongdoing by Gwinn.

“There was nothing to justify the hundreds of hours and tens of thousands of dollars worth of government resources that have been expended in this investigation and prosecution,” he alleged.