Mistrial Only Emboldens Bobby Ferguson and Kwame Kilpatrick to Fight On

The odds were never great that the feds would ever convince contractor Bobby Ferguson to flip on his close pal, ex-Mayor Kwame Kilpatrick.

But whatever remote chance there was, well, that’s likely gone.  The same goes for the chances of getting Kilpatrick to cop a plea to a host of public corruption charges.

That’s because on Tuesday the feds were embarrassed and disappointed in their bid to put Ferguson behind bars when the judge declared a mistrial in the case. A conviction could have put some pressure on him to  entertain cooperating with the feds for a reduced sentence.

But a federal jury in downtown Detroit deadlocked on all seven counts against Ferguson and it couldn’t reach a verdict on two other co-defendants and three businesses charged with criminal activity in what the feds say was a big scheme to rig a $12 million bid for a low-income housing project to help land Ferguson the contract. Kilpatrick was not a defendant in this case, though the feds tried using his name to harm Ferguson.

The fact the feds fell far short of their mark in this case is likely to embolden Ferguson and Kilpatrick to fight on. Even before Tuesday’s verdict, both had already rejected less than appealing plea offers -- Kilpatrick 15 years and Ferguson 13 years -- in a totally separate case coming up in September involving charges of racketeering and bribery. Ferguson's plea would have also covered this bid-rigging trial, according to the Detroit News. 

Alan Gershel, the former head of U.S. Attorney’s Criminal Division and currently an associate professor at Thomas M. Cooley Law School, told me just hours after the mistrial was declared that it’s very possible Ferguson figures “the government couldn’t convince a jury in this case, why not continue to roll the dice.”

I’d say, Kilpatrick can only have similar thoughts. 

Political consultant Adolph Mongo, who had done some work for Kilpatrick, says the idea of Ferguson flipping on his buddy wasn’t really an issue even before the verdict.

“I don’t think he’s going to say anything,” Mongo told me while the trial was going on. ”I know him. I happened to meet him during the re-election. He’s a very smart and astute businessman who happened to get caught in the Kilpatrick political machine. If he was going to cut a deal, he would have cut it a long time ago.”

All that being said, Ferguson and Kilpatrick still face some serious legal challenges and the possibility of prison.

For one, U.S. Attorney Barbara McQuade wasted no time on Tuesday, insisting that her office will retry Ferguson and the others.

"We are disappointed that these jurors were unable to reach a unanimous verdict, but we appreciate their time and their work,” she said in a statement. “ We will try this case again because it is so important to the citizens of Detroit, who deserve so much better. We will do all we can to hold accountable defendants who are charged with cheating to obtain lucrative public contracts and then dumping contaminated soil on a housing project for low-income families just so that they can be paid to clean it up. We are confident in the merits and strength of this case."

Retrials are tricky things for both the defense and prosecution. In some ways, the prosecution is at an advantage because it has seen the defense’s case and how it poked holes in the evidence.

Prosecutors can adjust and also figure out ways to simplify to make the case more palatable for a jury. Case in point: The Gov. Rod Blagojevich case. The government was embarrassed when it got a conviction on only 1 of 24 counts. So it simplified and cut down the counts for the next trial and got convictions on 17 of 20 counts. Blagojevich is now serving 14 years in federal prison.

 Conversely in the retrial, the defense will have transcripts of testimony from the first trial. Any time  prosecution witnesses deviate from their testimony of the first trial, the defense will try to undercut their credibility.

Richard Helfrick, an attorney for the Federal Defender Office in Detroit, who’s been involved in some high profile cases in recent years, says both sides, which had first-rate lawyers, may have a better idea on the strength of the case if they know how the jury voted.

“What’s the breakdown, that’s what you want to know,” says Helfrick. “Was the vote 5 to 6 or 6 to 5 or was it just one juror hanging up the whole thing?”

Turns out, the Detroit News reported Wednesday that the jury had agreed to convict on some counts, but after the weekend break there was one holdout: A black female juror.

Gershel thinks prosecutors in the September trial with Kilpatrick will be armed with more concrete evidence that was not available in this trial: Wiretaps and text messages that could prove problematic for Kilpatrick and Ferguson. Other defendants in that case include Kilpatrick's father Bernard and former Detroit water department boss Victor Mercado.

Adolph Mongo, who is fond of stirring controversy, thinks the government has selectively gone after black business people like Ferguson at the exclusion of whites. 

That being said, he thinks the government in this trial committed a big mistake, particularly since Kilpatrick was not even a defendant in this case.

“They tried Kwame Kilpatrick instead of Bobby Ferguson,” he says. “People I talked to said Ferguson did a good job” for the city. “A lot of people in the city are glad he didn’t get convicted.”

Then again, it’s all far from over.

Update: A retrial date for Bobby Ferguson has been set for Aug. 21.