John Shea's Big Case
Defending Bernard Kilpatrick
by Jan Schlain
"Today went fine," John Shea says, after a long pause and a deep sigh. "Probably better than expected."
Shea is on his cell phone, talking as he drives back to Ann Arbor after what the media are calling "Day Forty-Nine" of the trial of former Detroit mayor Kwame Kilpatrick. Kilpatrick, who's already served time for obstruction of justice in the "text message" scandal, now faces corruption charges over a $1.2 billion sludge-hauling contract. His co-defendants include his father, Bernard Kilpatrick. Shea is Bernard's court-appointed lawyer.
Today's testimony was from "a pretty critical witness for the government," Shea says, "which means a critical witness for us, as well." Derrick Miller "was indicted with us, and then pleaded guilty about six months later and has been cooperating [with the federal prosecutors], so he's their administration insider, so to speak. He's not done yet--the government's not done with him."
Among other things, Miller testified that he met with the Kilpatricks, father and son, at Bernard's condo to discuss steering city work to a third defendant, contractor Bobby Ferguson. "So far, [the testimony] hasn't been great," Shea says, "but it hasn't been horrible."
Shea says that even a serious felony trial typically lasts only a few days, or at most a couple of weeks. But he's been spending more than forty hours a week on the Kilpatrick case since September. He doesn't expect the pace to let up until it goes to the jury sometime in February.
"It has changed my life profoundly," says Shea. "Because, trust me, I do not get up at five forty-five in the morning as a general lifestyle habit of mine."
Shea's office is a second-floor walk-up on Fourth Ave. across from the courthouse. The stairs creak, the carpet needs replacing, and visitors are greeted by a small dog belonging to the receptionist he shares with two associates and four other attorneys. His administrative assistant, Monica Vogel, carries out her multitude of duties wearing her baby in a sling across her
Shea grew up in Detroit and attended De La Salle Catholic High School when it was still across from Detroit City Airport. He came to Ann Arbor in 1975 as a U-M undergrad, living for the first couple of years in Couzens Hall, where I met him. It seemed that he was always either helping someone move into the dorm, blasting Bruce Springsteen's "Born to Run" out of his triple, or sitting on your floor late into the night, drinking a beer and waxing philosophical.
He is the same guy now as he was then, still steadfast, loyal, and empathetic. He even still looks the same, though now that he's fifty-five, his wavy brown hair is sprinkled with gray. That makes it easy for his old friends to recognize him when they see his face plastered all over the Detroit media.
"Each federal district [court] has a federal defender, and that office is in charge of making sure that persons who can't afford their own lawyers get lawyers," Shea explains. He's been one of the attorneys on call in Detroit for "I don't know how long--probably going on twenty years."
He was asked in October 2010 if he would be willing to defend the senior Kilpatrick. "I said yes." But there was a complication: "I had been appointed to represent a witness in a related investigation." He disclosed the potential conflict to the prosecutors; since that case wasn't moving very quickly, they agreed to let him withdraw and take on Bernard's defense.
"I get paid by the taxpayers, at the princely rate of $125 an hour," he says. "No state secret there."
Shea lives in Dexter Township with his wife, Marilyn, who works for the U-M, two Labrador retrievers, and three cats. On trial days, he gets up at five forty-five and leaves the house by seven. If the weather's good, he'll drive his 2004 Lincoln LS; if it's bad, he takes the 2005 Toyota Tundra pickup.
When he gets to Detroit, his first stop is to pick up his client. "We go to court together," says Shea.
That's certainly not a standard part of a defense lawyer's duties, but Shea says that Bernard Kilpatrick hasn't had a working vehicle since last summer, when his car "suffered a fire ... his wheels got burned up, and he hasn't had the wherewithal to replace 'em."
Kilpatrick, who's seventy-one, no longer owns the waterfront condo where the meetings were alleged to have taken place--it's been foreclosed. Yet during the trial, prosecutors have presented evidence that he deposited more than $1.4 million into his personal and business accounts in 2004, 2005, and 2007. (They skipped 2006 because the IRS doesn't dispute his tax payments for that year.)
Shea says that figure is exaggerated, because it included money that moved between accounts and other non-income items. As for the rest, he says, "I personally don't know where the money went, but whatever it was he was making in income over the years, I'll tell you this--I'm not picking him up because he doesn't know how to drive, or because he prefers to simplify his lifestyle and not have an automobile by choice."
Kilpatrick now rents what Shea calls "a modest townhouse" not far from the federal courthouse in downtown Detroit. Driving a client to and from court is "certainly not contemplated in the ordinary attorney-client relationship," Shea allows, but he's glad to do it. "He's got some time where I'm with him in person. I've got some time when I'm with him in person," Shea says. "We don't have other people hovering about ... I think it's been a real positive thing, at least from my perspective, [and] I hope from his perspective.
"Early on I would call him when I was a few minutes away to give him a heads-up. Then we just got into such a routine, he doesn't even need that anymore. He's looking out the window by the time I pull up."
By court rule, there are things Shea can't talk about while the trial is ongoing. He can't discuss the credibility of witnesses or argue evidence in the press. But it's his job to put his client in the best possible light, and the way he does so suggests that he also feels some genuine empathy for Kilpatrick.
"I'm impressed with the man," Shea says. "Regardless of what people think of him, regardless of what opinions people may have, he is a strong guy, and he's strong-minded as well as strong-willed--and that includes when it comes to his health. He also maintains a level of equanimity that I'm not sure I could maintain in these circumstances. I admire that in him."
Kilpatrick, Shea says, "has been taking it in the chops, as far as public perception is concerned, ever since the media started writing about his son." In a later email, he adds, "Beware what you assume from news sources. They are pretty tainted and biased, and have been for many years."
With that caveat, the Detroit News ran a story last May describing Bernard Kilpatrick as a power-hungry ladies' man who lived big and gambled heavily.
Born in Detroit, the son of a postal worker, Kilpatrick was an All-American basketball player at Ferris State. After graduating in 1967 with a degree in business education, he played two years with the Muskegon Panthers of the Midwest Pro League.
According to the News, Kwame Kilpatrick claimed it was his father's aggression on the basketball court that earned him the nickname "Killer." Another source said it referred to Bernard's success with women. He met Carolyn Cheeks at Ferris, and they were married the year after he graduated; Kwame, the first of their two children, was born in 1970.
At the time of their marriage, Cheeks Kilpatrick headed the Black Slate. The group's Facebook page describes it as a "non-profit public relations consultant, fund raising, and advertising agency," but according to the News, it was founded as the political arm of the black-nationalist Church of the Black Madonna.
Bernard Kilpatrick worked as a field organizer for the Black Slate before winning election to the Wayne County Commission in 1983. According to the News, he was a thorn in the side of then-county exec Ed McNamara--until 1989, when McNamara took him to lunch and offered him a $90,000-a-year job heading the county's health and human services department.
The Kilpatricks divorced in 1981, when Kwame was eleven and his sister, Ayanna, was nine. Cheeks Kilpatrick was awarded custody. The following year, she petitioned the court for back child support, alleging that Bernard owed $4,222.50. The year after that, Bernard fathered another child, Diarra, now an actress.
While working for McNamara, the News reported, Kilpatrick was active in political campaigns, including Jennifer Granholm's run for governor in 2002 and his son's mayoral bid in 2001. He left his county job shortly after Kwame took office, to form the consulting group Maestro Associates LLC.
Around the same time, a longtime acquaintance told the News, the senior Kilpatrick "began wearing furs, big hats, and diamond Rolex watches." The acquaintance got the impression that Bernard wanted "to be known as the top street guy. He wanted to be Don Corleone. It was the power. He was living vicariously through the mayor."
But Kilpatrick had a gambling problem, and he has battled financial problems since his son's conviction and resignation in 2008. Text messages released by prosecutors in that year showed him frequently discussing city contracts with his son. The FBI subsequently tapped his home and cell phones and made video and audio recordings of his meetings with informants.
Both Kilpatricks were indicted in 2010, along with Derrick Miller, Bobby Ferguson, and Victor Mercado, former head of the city water department. As summarized in the Detroit Free Press, they were accused of running a criminal enterprise through the mayor's office by manipulating bids, shaking down contractors, and using charity funds for personal use, as well as cheating on their taxes. Bernard personally, Shea explains, is accused "of conspiring with his son and others to leverage his son's office in order to financially benefit himself and those other people. And he's charged with not reporting all of his taxable income in three years." If convicted, the defendants face up to twenty years in prison.
On January 18--Day Fifty-Seven--the prosecution played a 2008 video in which Kilpatrick could be seen accepting $2,500 from James Rosendall, a vice-president of Synagro Technologies. The prosecution alleges that Kilpatrick collected at least $25,000 from Rosendall, along with expensive charter-jet flights to Las Vegas, for facilitating the billion-dollar sludge contract.
In his cross-examination, Shea suggested that the payment--and others like it--was legitimate compensation for helping Rosendall navigate City Hall's bureaucracy. And he played other tapes to bolster his argument that Kilpatrick thought he had more "juice" with his son's administration than he really did. There's no crime, he argues, in that.
After court wraps up at 1 p.m., Shea takes Kilpatrick home. Then, "I drive back to the office to work on the case, or work on some other aspect of my practice, or to attend to administrative things. And I get up the next morning and I do it again."
Though the trial has dominated his practice these last five months, it hasn't taken it over. He credits his associate attorney, Uwe Dauss, with "doing a lot of heavy lifting" and "keeping my practice alive" while he's in Detroit.
"We have not closed shop," Shea says. "We are still open for business.
"Sometimes [a prospective] client has said, 'I think I'll find somebody else who is not quite so busy,' and sometimes the client has said, 'I'll continue with you and trust that you can give it the attention that it needs.'"
It also helps that he brought in a second associate, Alex Brennan, to share the workload. "I hired her fresh off of an ACLU Fellowship last January, a year ago, to assist me with two cases. I had to finish up a federal murder case, and then I had to jump into getting into the final prep stages of this. There is a reason why there are multiple defense hands on the defense team, for all defendants. This is not the kind of case you can handle by yourself.
"I've been accused of not playing well in the sandbox with others when it comes to my caseload, that I can be too insular and obsessive, not letting people help enough. One of the things I've had to learn in this case is, you better allow people to help, or you're not going to get through it."
When asked if he prepares the sound bites he sometimes gives the media as he and Kilpatrick leave the courthouse, Shea laughs. "Well, if I did, I probably wouldn't have said, 'I probably never filed a 100 percent accurate tax return.'
"We were talking about the difference between a criminal tax offense as opposed to an innocent or mistaken understatement of income," he explains. "What I said to [the reporters] is, 'I think it's probably a stretch to believe that I or anybody else has ever submitted a tax return that is 100 percent accurate. An inaccuracy [alone] doesn't make for a crime.'"
Sometime this month, the jurors will be asked to decide whose narrative they believe. The prosecution says that Bernard Kilpatrick extorted money from people doing business with the city and hid income from the IRS. Shea argues that he was a legitimate businessman who couldn't have influenced city decisions if he'd wanted to, and that any tax shortfall was inadvertent.
Shea says the jurors "have been remarkable! ... I know a number of them have been ill during this. They show up anyway, with Kleenex boxes and fluids. That tells me that they are taking this case [as] seriously as everybody else is."
As for his client, Shea says, "Bernard has been dealing with the slings and arrows of the media and the wounds to his reputation and image for a long, long time." He adds, "I think he was probably pretty thick-skinned even before that."
Maybe that thick skin has made Shea's job easier, but might it also make it harder to determine when his client is telling the truth? Shea laughs. "I'd like your readers to assume," he says, "that he's always telling the truth."
[Originally published in February, 2013.]