MANHATTAN (CN) – In summing up for the defense, attorney John Cline attacked the credibility of two “thieves” the government called as “star witnesses” against Frederick Bourke, who is accused by the government of conspiring to bribe Azerbaijan officials in order to acquire the nation’s oil company.
Cline even attacked the competence of the federal prosecutors, who he said did not exercise due diligence, hinging their case on two “liars” who testified to a story with a timeline that did not merit scrutiny.
Swiss attorney Hans Bodmer had testified that he met Bourke in the lobby of Baku’s Hyatt because they thought the hotel rooms were bugged, then the men walked around the block to discuss the bribery scheme.
The problem with that story, Cline said, was that flight records showed that Bourke was still in London when Bodmer said the conversation happened.
Cline said the same records showed that government witness Tom Farrell could not have had an incriminating conversation with Bourke in a parking lot when Farrell said it occurred.
He said Bodmer and Farrell both made up the stories about the secluded meetings because the testimony was “very easy to fabricate” but “hard to disprove.” Neither witness, Cline said, kept any memos, letters, emails or diary entries about the encounters.
The defense attorneys did not confront Bodmer or Farrell with these flight records during cross examination; they submitted evidence by stipulation after the government finished its case. Those records were the cornerstone of the defense’s attack on the credibility of the federal witnesses.
“There’s no question that Bodmer gave false testimony,” Cline said, adding that the records show what happens when the government pressures someone to cooperate.
Cline said Bodmer “lied” because he was “desperate to keep his freedom.”
Cline echoed the words of his colleague Saskia Jordan in the defense’s opening remarks, saying that federal prosecutors created an “upside-down world” in which the “victim” of an immense fraud had to face the words of two “thieves” – a word Cline repeated throughout his summation – who sought government favor.
“Suppose the flight records had not come in,” Cline told the jury. “You might have convicted Mr. Bourke based on Bodmer’s testimony.”
Although both witnesses had problems with their timelines, Farrell had other credibility issues, Cline said: in Farrell’s testimony, he admitted to lying on his 1998 tax return, failing to report about $700,000.
“If he perjured himself for money, would he do it to keep his freedom?” Cline asked.
He said that Farrell called the prospect of prison “terrifying,” but after cutting a “sweetheart deal” with the government, he was allowed to go back to St. Petersburg, Russia, keep his boat and avoid paying any restitution.
Cline agreed with prosecutor Iris Lan that the witnesses’ demeanor suggested they were credible. “I will be the first to tell you, they were very polished witnesses,” Cline said. “Of course, [their testimonies] were false, but very well presented.”
Cline derided the prosecutor’s argument that the witnesses were telling the truth, but just got the dates wrong, as a “new theory.” He said the government’s argument rested on the idea that Bourke rushed to invest in the Azeri investment shortly after he found out that the game was rigged.
Under the new timeline, Cline said, one must believe that Bourke did not invest again after finding out that Azeri officials were being bribed.
“He has the keys to the kingdom, and he never invests again,” Cline said. “Does that make sense?”
Cline brushed aside the idea that witnesses would not have perjured themselves to avoid further prosecution, saying the prosecutors would not have punished them for it.
“When it comes to Bodmer and Farrell, there is no such thing as a lie,” he said. The witnesses “have nothing to worry” about, he said, and “they know it.”
Whereas the witnesses had problems “sticking to a story,” prosecutors had trouble following a line of argument, Cline said. He said prosecutors argued that Bourke participated about the scheme and “buried his head in the sand” to avoid learning about the bribes.
Cline compared the argument to a murderer saying, “I wasn’t there. But if I was there, I didn’t shoot him. And if I did, he had it coming.”
“They’re throwing stuff against a wall, hoping something will stick,” Cline said.
After aggressively attacking the witnesses and prosecutors, Cline concluded, “Unless you can believe Bodmer and Farrell about those walks, you’ve got to acquit Mr. Bourke.”
He added that if the jurors had any “hesitation” about the testimony, they must find Bourke not guilty because of reasonable doubt.
But prosecutor Harry Chernoff disputed that in his rebuttal. Chernoff said the government “met the burden of proof” and “passed it.”
Chernoff said the government did not try to have it both ways: It always argued that Bourke knew about the bribes, but that even the defense’s argument that Bourke was never explicitly told about the scheme does not exonerate him.
“At best,” Chernoff said, “(Bourke) looked the other way,” which would make him a party to the conspiracy under the principle of conscious avoidance.
He asserted that the substance of the Bodmer and Farrell’s testimonies were valid, and that the government witnesses understandably forgot the dates of conversations that took place 11 years ago.
After all, Chernoff said, Cline got a date wrong in his own summation: that Cline said that his team submitted the flight records as evidence a month ago, but actually did so about a week ago.
Chernoff added that the cooperating agreements that Bodmer and Farrell signed gave them no incentives to lie, “only disincentives.” He said that “tell the truth” clauses invalidated the deals if the witnesses were caught perjuring themselves. more