Judge denies defense bid for mistrial in former Ald. Ed Burke's corruption case
CHICAGO (CBS) -- A judge has denied a request from lawyers for former Ald. Edward Burke to declare a mistrial in his corruption case after a prosecution witness told jurors that the "Chicago way of doing business" seemed to be "very corrupt."
CBS 2 legal analyst Irv Miller said mistrial requests are common in criminal cases but rarely granted.
As CBS 2 Political Reporter Chris Tye reported, the defense request stemmed from testimony from Amtrak executive Ray Lang, who. Lang was on the stand Wednesday because Amtrak trains run under the Old Post Office, one of the four locations Burke allegedly extorted for personal gain.
Lang had testified that he had sent an email to a colleague in December 2016 informing them that "the owners of the Old Post Office hired Ed Burke today," calling it "a very old school Chicago move to hire him."
Prosecutors asked Lang what he meant by that.
"A developer hiring an alderman to do property tax work, I thought, was symbolic of the Chicago way of doing business," Lang said.
When a prosecutor asked him to elaborate, Lang said, "I mean, it's very corrupt," prompting an immediate objection from Burke's defense team.
Lang's remark came despite prosecutors telling him not to use the word corrupt. U.S. District Judge Virginia Kendall ordered Lang's comment stricken from the record and told jurors to disregard it.
After the jury exited, Burke's lawyers told the judge that Lang's remark was grounds for a mistrial, arguing the witness deliberately violated an order about giving his opinion that Burke's activity was corrupt. The judge ordered both sides to file written arguments before the trial resumed on Thursday.
In a brief filed with the judge overnight, prosecutors said a mistrial was unnecessary, arguing that Lang is a lay witness who doesn't work for the government and "there can be no suggestion that he was speaking on behalf of the prosecution." Prosecutors also argued that the judge had taken appropriate steps to remedy Lang's mistake by ordering the jury to ignore his comment.
In denying the defense's bid for a mistrial Thursday morning, Kendall said she believed it was an unintentional lapse, and jurors will follow her instructions to ignore Lang's "corrupt" remark.
"I do think the trial will go on for weeks more….it will be one word..and I think the jury can handle it," she said.
CBS 2 Legal Analyst Irv Miller said the judge's decision is unsurprising.
"Mistrial motions are rarely granted. It's an extreme circumstance for a judge who will find that the defendant's rights were so violated and were so prejudicial that the trial couldn't continue," he said.
Nonetheless, Miller said the mistrial request was an intelligent move by the defense and a clear signal that they're setting up a potential appeal if Burke and his co-defendants are eventually found guilty.
"Anytime they think that there's what I call a super objection, which is beyond the normal objection, they're looking towards the appellate court in the future if there's a conviction. They want the appellate court to know that this error was so bad that the case should have been thrown out at the trial level," Miller said.
Meanwhile, bombshell recordings heard during the trial Wednesday included Burke, the former head of the City Council Finance Committee, "making" someone a judge who could then help would-be clients for his law firm.
It happens that it was five years ago to the day Wednesday when Burkes were raided and papered over. The crux of the case against him is the secret recordings rolled on by his then City Council colleague Danny Solis.
On Wednesday, the court heard what Burke said on tape that led to these federal charges.
The $800 million makeover of Chicago's Old Post Office is the project at the center of thousands of Solis' secret recordings of Burke. This included an in-person meeting between Burke, Solis, and the Old Post Office developer -- who was having problems with Amtrak, whose trains ran under the building.
Burke was heard saying: "Put in the back of your mind one of the guys on the board is Jeff Moreland, formerly of the railroad. We made his daughter a judge here in Cook County. And one of their other daughters is a friend of my daughter... You'll find out Chicago is a very small town."
Burke later said, "Between Danny and I, there aren't many people around town we don't know."
As Burke heard from Solis that tax work was likely coming to his firm, Klafter & Burke, Solis ramped up questions on how he would be paid.
Solis said: "Last time we met, I got my son at (St.) Ignatius (College Prep) and a big mortgage. We talked about a marketing arrangement. I want to get my son in college and it's very important to me."
Burke suggested a payment structure for Solis through another lawyer.
Burke: "Maybe we could run it through Brian Hines, and we could give him a percentage of the fee, and if that doesn't work, we'd have to call you a marketing rep. And we'll bill hourly."
Solis: "No legal problems?"
Burke: "You're not going to get into trouble, and I'm not going to get in trouble."
The following month, talk of payment continued.
Burke: "I like working as a percentage. I'm a believer that if you're making money, you should share the wealth."
Solis: "We should figure out a way to be above board, legal."
Burke: "You and I aren't going to get (inaudible) in this stage of the game."
When Burke commented on making someone a judge, he was a Democratic committeeman. Part of that job is finding, selecting, running, and electing judges in the Chicago area. This is an important context in looking at the quote directly.