Secret Recordings the Spotlight of Pennsylvania Mayor's Corruption Trial

by | January 22, 2018

By Peter Hall

The hearsay rule is a bedrock principle of American jurisprudence: Anything offered as evidence that doesn't come from a witness testifying in court is hearsay and cannot be considered by jurors.

There are, of course, exceptions -- two dozen in fact.

And they'll be tested repeatedly during the political corruption trial starting Monday in Allentown against Mayor Ed Pawlowski, a case centered on secret recordings -- most including the mayor himself.

Expect those recordings to spark frequent courtroom sparring between defense attorneys and prosecutors over what parts jurors should hear.

Pawlowski's lawyer, Jack McMahon, argued in pretrial filings and a hearing this month that the recordings contain the best evidence of his client's innocence. The mayor's own words show that he told his associates "we shouldn't even come close to crossing the line" and insisted "everything is to be done ethically," McMahon says. Prosecutors say those statements are "self-serving, misleading and can't be played for jurors."

Prosecutors assert the recordings will convince jurors Pawlowski was at the center of a broad conspiracy to trade contributions to his campaigns for city contracts, legal work and other favors. Defense attorneys say the prosecution must show other evidence of the alleged conspiracy before they can play recordings of the alleged co-conspirators plotting.

U.S. District Judge Juan R. Sanchez, who will preside over the trial, said at a Jan. 4 hearing he will decide issues related to the recordings and hearsay on a case-by-case basis.

"They're very technical rules. Hearsay is not admissible unless it is," said former federal prosecutor Seth Weber, noting the broad range of exceptions gives lawyers leeway to use an out-of-court statement when they can show it meets certain requirements.

One or more of those exceptions may give McMahon an opportunity to let jurors hear the recordings he asserts show Pawlowski never intended to break the law.

Pawlowski faces a 54-count indictment charging him with conspiracy, bribery, attempted extortion, fraud and making false statements to the FBI. A co-defendant, Allentown lawyer Scott Allinson, is charged with conspiracy and bribery. A third co-defendant, business consultant James Hickey, pleaded guilty to two counts of honest services fraud in the Allentown case and a related case in Reading.

According to court filings, the charges came after a three-year investigation in which Pawlowski's campaign consultant, Mike Fleck, and Fleck's employee, Sam Ruchlewicz, agreed to wear wires after being confronted by the FBI with evidence of thefts from campaign funds. The FBI also tapped their phones.

Between June 2014 and July 2015, when the investigation was revealed in an FBI raid on City Hall, Fleck and Ruchlewicz made more than 100 recordings that captured their conversations with Pawlowski, Allinson and others, including former city Managing Director Francis Dougherty and former Finance Director Garret Strathearn.

Prosecutors used the recordings to build their case against Fleck, who pleaded guilty in 2016 to conspiracy to commit bribery and implicated Pawlowski in alleged schemes to shake down contractors. Ruchlewicz has not been charged, but he and Fleck will be witnesses in the trial, prosecutors have said.

The recordings will be central to the U.S. attorney's case against Pawlowski and Allinson, but even prosecutors must overcome the presumption that hearsay, which includes recorded statements, is inadmissible.

The rules of evidence are designed to promote the ideal that trials should be conducted efficiently and fairly, Penn State Dickinson School of Law Professor Michael Mogill said.

They define what is considered valid evidence, and rule out hearsay as generally unreliable because such statements are not made under oath, and the judge and jury can't observe the speaker to decide whether he's telling the truth, Mogill said.

"We don't want to rely on repeated statements from out of court," he said. "That's going to undercut the whole truth-finding process."

Barring out-of-court statements eliminates uncertainty about the meaning of what was said or the accuracy of its repetition, Mogill said.

"Maybe [the witness] misheard it. Maybe there was some kind of misunderstanding. Maybe [the witness is] going to misstate it because he has some kind of grudge," Mogill said. "We want people to testify in court from their own personal knowledge, not from someone else's knowledge."

A broad exception to the hearsay rule is that statements by a co-conspirator can be used against a defendant if the statement was made as part of the alleged conspiracy. To use such evidence, prosecutors must first show that there is other evidence of a conspiracy.

"Most judges will say you have to paint the picture a little bit before I can see how this fits in," said Bruce Antkowiak, a criminal justice professor at St. Vincent College in Latrobe, Westmoreland County. "If you're going to use a co-conspirator statement, then you have to lay the groundwork to show how this statement would have been made in furtherance of the conspiracy."

McMahon noted in the hearing that some of the people identified in the recordings, such as developer and campaign fundraiser Jack Rosen, from whom Pawlowski is accused of soliciting contributions in exchange for a cyber security contract for a company backed by Rosen, do not appear on the government's witness list. He questioned how prosecutors could lay the groundwork to allege a conspiracy without Rosen testifying.

"If there has been no showing of a conspiratorial relationship, I will object to the tape on that basis as hearsay," McMahon said.

Another broad exception to the hearsay rule is that any prior statement that a defendant allegedly made can be used against him.

When a defendant wants to use a prior statement in his defense, however, it is hearsay and is considered inadmissible, Antkowiak said. That's because any statement a defendant might want to use to demonstrate his innocence is considered self-serving and unreliable.

"A defendant could call his grandma to testify what the defendant said," Antkowiak said.

Criminal defendants also have a constitutional right not to testify. That means prosecutors would never have an opportunity to cross-examine a defendant about prior statements.

In the Jan. 4 hearing, McMahon argued, however, that barring the recorded statements that point to Pawlowski's innocence would hamstring the defense.

"The government is attempting to keep out a voluminous amount of evidence that negates the alleged 'corrupt purpose' of my client," he argued.

Sanchez indicated he would hear McMahon's arguments during the trial.

"If you have a proper basis for admitting it ... you can make your pitch," Sanchez said, adding, "You're not going to get the opportunity to throw in every statement that he has made."

Weber said it's possible Pawlowski's recorded statements could be admitted under an exception for utterances that demonstrate a person's mental, emotional or physical condition at the moment the statement was made.

There is also a catchall exception that allows hearsay when it can be shown to be as trustworthy as other evidence in the case, when it proves the defendant's point better than any other evidence that's available and when allowing it will best serve the interests of justice.

"Basically, you ask: Do the constitutional rights to a fair trial and being allowed to present a defense trump the rules of evidence if the interests of justice require it?" Weber said. "Why can they use those words when I can't use other words on the exact same tape?"

(c)2018 The Morning Call (Allentown, Pa.)