Authors: John Ellsworth
H
on. Mary Robles
-Wanstedt peers down at me from her high bench in Courtroom 1109, Dirksen Building. She is the federal magistrate judge the all-knowing federal judiciary has run up from the Central District of Illinois to sit in judgment of one of its own, Francis Pennington Jr.
"Mr. Gresham, if I may interrupt your conversation with the man next to you, are you ready to proceed with the initial?"
I break off my last-minute preparations with Marcel, who I will call as the defense's only witness today. He has had the opportunity to load up on background information that he can impart to Her Honor when he takes the stand to tell-all about Judge Pennington. This is the Who, What, Why, Where, When stuff about his life that will, it is my intent, serve to prove to the court the man has deep ties to the community that would weigh heavily in favor of doing the right thing about appearing in court if the court should grant him bail. Marcel leans away, and we break it off. Seated at Marcel's left is Judge Pennington, and I spin my fingers to indicate they should trade. They do, and now the judge is next to me, where he belongs in the traditional scheme of taking-your-client-to-court.
"Your Honor," I reply hastily, "the defense is ready to proceed."
"Very well. Mr. Pennington, will you please approach the lectern with your counsel? Thank you."
We both step up and Judge Pennington stands directly behind the lectern while I am one step to his left. The AUSA remains sitting, and beside him is Special Agent Nathan Fordyce, who is, I am confident, primed and ready to go.
"Mr. Pennington," Judge Robles-Wanstedt begins, "Rule Ten provides that a plea will only be taken at arraignment and this hearing today is not your arraignment so be careful in speaking to me that you do not indicate whether you're pleading guilty or not guilty, fair enough?"
"I understand, Your Honor," says my client.
"Good. Now, there are certain things we must accomplish here this morning in your initial appearance. You have been charged with a felony—multiple felonies, actually. You have been accused of several counts of conspiracy and similar accusations to purchase the murder of a James Lamb of Chicago. The case is venued here in Chicago because the U.S. Attorney alleges in his information that the facts underlying the indictment—the conspiracy portion—took place here in Chicago.
"You have the right to retain counsel, and you have exercised that right. Attorney Michael Gresham is appearing before you today, and Mr. Gresham is a member of the trial bar of the Northern District.
"You may secure pretrial release if certain conditions are met. However, in this case, the government has filed a Motion for Detention, which the court will hear this morning, and following that hearing conditions of release, if you are released, will be ordered by me. Are you with me thus far?"
"Yes, Your Honor."
"Very good. Pursuant to the Bail Reform Act of 1984, defendants will be released prior to trial without any special conditions, unless the court concludes that you are likely to flee or are a danger to others or the community.
"During this morning's detention hearing, the court can determine that certain pretrial conditions could reduce the likelihood that a defendant will flee or endanger others or the community.
"In the event the court determines there are no conditions or combination of conditions to ensure you would not flee or endanger others or the community, the Court will order that you be detained."
"Do you have any questions so far, Mr. Pennington?"
"No, Your Honor."
"Finally, you have no right to a preliminary hearing because the government has indicted you. Mrs. San-Jish, are we thinking amendments to the indictment?”
The AUSA, a mid-fortyish woman wearing a saffron dress of Indian descent stands to her feet and addresses the court. Her voice is small, courteous, and straight to the point.
"We will be taking the case before the grand jury on Wednesday, Your Honor. There may be additional counts.”
"Mr. Pennington, you have the right not to make a statement. I expect you will have discussed that aspect of the criminal proceeding with your counsel, and you will act on his direction. Having said all that, the court has read the government's Motion to Detain and has studied the file, slight as it is, and is ready to proceed with testimony to support the government's position if, indeed, the government wishes to offer testimony."
Again, the brown-skinned woman stands at the government table.
"The government calls Nathan Fordyce to the stand."
The witness is sworn in and takes his seat on the witness stand.
Preliminary questions and answers are passed back and forth, and I am struck with the youthfulness of Nathan Fordyce. From our previous confrontations in court and out, I had thought him much older. If he's a day over thirty-five, I would be surprised. However, as he responds to the AUSA's questions, he answers with a maturity level far beyond his age. This is a guy who has long proven that he knows his way around a courtroom. Moreover, this is probably the biggest case of his career—the prosecution of a sitting federal judge—and he has dotted all i's and crossed all t's. To put the capstone on the fact he is going to be an impressive witness and opponent at whatever stage of the proceedings he appears, he is handsome in a blond, crewcut way with full Hollywood sideburns, blue eyes that are blessed with almost a surfeit of honesty, and a perfect smile.
The AUSA continues. "Now, Special Agent Fordyce, one of the questions the court must decide today is the weight of the evidence against the defendant."
"I understand."
"Please give us the factual basis for the charges that have been brought against Mr. Pennington."
The witness swallows hard, gathering himself. This is the moment of truth for him and his case. Too much detail and he's given me way too much to work with; too little and the judge quickly lets my client loose.
"Well, I was assigned this case by—"
"Please, let's skip the administrative portions and just tell Her Honor what the defendant did."
"From his cell phone while in Barrington, Illinois, the defendant made contact with a gentleman by the name of Raul Demad Ramon. This subject is the father of Emmanuel ‘Emmie' Ramon. These two subjects are co-defendants of this defendant. These two subjects reside in Tijuana, Baja California."
"The government has alleged a criminal conspiracy between the three defendants. Please tell us about that."
"After Judge—Mr. Pennington—made contact with the senior Ramon, he held a hearing on the younger Ramon's case here in Chicago. The younger Ramon was a defendant in Judge Pennington's court at the time. He was facing drug charges, and there was a motion to suppress based on
Wong Sun v. United States
, the fruit of the poisonous tree doctrine. Following a very short hearing, the judge found the search and seizure were illegal and dismissed the government's case against Mr. Ramon.
"Sometime after, a man named James Joseph Lamb was targeted for assassination in Chicago, Illinois.”
"How is that, if at all, connected to Francis Pennington Jr.?"
"I have interviewed the father and son. They are on record saying the defendant traded the son's freedom and dismissal of his case for the murder of James Joseph Lamb."
"Is there a recording of that interview?"
"Video recording. I met with the father and son in Tijuana and arranged to have a video recording made of their statements."
"Why would they give you statements? That makes no sense."
"It was simple. We told the father and son that the charges against the son had been dismissed without prejudice and that we were going to refile and put the son in prison. Judge Pennington had slipped up and left a way for us to refile."
"Last question. Why would the judge want James Lamb dead?"
"Objection. Foundation,” I say.
"Sustained."
There are no virgins here this morning; we all know why Judge Pennington would want the guy dead. None of us blames him, either. Deep down we can all put ourselves in his shoes. It wouldn't be a hard call to put the Mexican Mafia onto the guy who murdered your wife.
"That is all, thank you."
The young agent swings his gaze to meet mine. I stand and take my place at the lectern.
"Mr. Fordyce, isn't it true that you also obtained that alleged statement by promising immunity to both the father and son from prosecution for Lamb's murder?"
"I can't testify to their motive, sir."
"But it's true they've been given immunity?"
"Yes."
"And the son also has immunity from prosecution on the Chicago drug charges, correct?"
"Yes."
"Do you happen to have the phone numbers for these people?"
"I do."
"Would you provide them to me? I'd like to talk to these gentlemen myself."
He smiles. "Careful, counsel, this is an ongoing investigation. You want to be very careful about interfering with a federal investigation. You've been warned. On the record."
"Just call my office with their number, please."
"Yes, sir. I'll do that."
"But the bottom line is, you have completely insulated the Ramon duo from prosecution in the United States in return for their testimony against Judge Pennington, correct?"
"You could say that, I suppose. Sounds more like argument to me."
"The witness will answer the question without editorializing," the judge interjects before I can object to the answer. Robles-Wanstedt has been around and isn't going to allow commentary during testimony.
So, I decide to push it.
"In fact, isn't it true—" I am fishing now, "that there are other crimes that have been committed by this Dynamic Duo in the United States, and that you and U.S. Attorneys in other jurisdictions have guaranteed there will be no prosecutions on those cases in return for helping you bag Judge Pennington in the biggest case in the office of the DOJ?”
"Object to Dynamic Duo. We don't believe they're all that dynamic, Judge," says San-Jish, proof that she too has a sense of sarcasm that she's willing to share with us.
"Sustained. Counsel will cease his own commentary."
I look at the witness. "Please answer the question."
"There are other investigations underway, particularly as to the father. I'm not at liberty to say what those are."
"Your Honor," I say, "please instruct the witness to answer my question whether he feels he has the liberty to or not."
"No, I don't think I need to," says the judge. "I've heard enough to get a pretty good feel for the weight of the evidence against the defendant and that's the standard that I am by law required to apply."
"Then I have no further questions for this witness," I say, and I sit down.
Judge Pennington is breathing heavily beside me. I am trying to breathe normally, but the testimony about the phone call made from Chicago to Mexico is hugely troubling. Scary, I'm sure the judge would agree. Who knows what all they've put together on him? Even worse, how do they have anything at all? He's promised me that he's guilty of nothing, and yet they claim he made a phone call? I shiver violently but am able to keep it inside my suit.
The government rests its portion of the hearing, and it's my turn.
I call Marcelino Rainford—Marcel—to the stand. He's sworn and takes his seat and looks around casually. Another pro of the courtroom wars.
After we have his name, education, and work history, I begin to narrow in on what I need. It's my job to produce evidence that Judge Pennington has close ties to the community that would keep him in our district and that he doesn't pose a threat to others or the community. I plunge ahead.
"Mr. Rainford, you've spoken to Judge Pennington?"
"I have. Just this morning."
"As a result of that conversation, do you have information concerning his ties to this community?"
"I do."
"Please elucidate."
"The judge is a lifetime resident of Chicago. Grew up in Forest Lawn, and has lived in a Chicago suburb for twenty years. He was married; wife now deceased; one living son. He has two sisters and two brothers living in Illinois; only one of those lives inside Cook County. He has served as an Assistant U.S. Attorney in the Northern District, ran unsuccessfully for State's Attorney, and was appointed for life to his current position on the federal bench in Chicago by President Clinton. He attends the Unitarian Universalist Church of Chicago, plays second flute in the BurbsPipes and serves two inner city kids as a Big Brother. Shall I go on?"
"What about his being a danger to the community or others?"
Marcel can't suppress a small smile.
"Really? Well, Judge Pennington's criminal record is non-existent. I checked. And I checked county and city records as well. Not even a speeding ticket. However, he does go to State Prison twice a month."
"State Prison? What for?"
"He speaks to Twelve Step groups there about legal resources for people imprisoned over addiction-caused issues. Drugs, drunk driving, prostitution, all of it."
I look up at Judge Robles-Wanstedt. After enough time spent in courtrooms you can read a judge's look. Right now she is telling me that she's heard enough. So I back off.
"Nothing further, Your Honor."
"You may cross-examine, Counsel."
"Mr. Rainford, how long have you known Francis Pennington Jr.?"
"Less than one hour."
"Do you think one hour is enough time to form an opinion about someone?"
"Counsel, I formed an opinion about you in the first two minutes I saw you."
San-Jish's head flies up from her notes, and her eyes blink rapidly.
"Well, I-I—"
"I decided you were a pretty fair prosecutor."
"That is—I think that's all we have, Your Honor."
"Very well. The witness may step down. Counsel, would you like to be heard?"
The upshot is, after we finish our arguments to the court, Judge Pennington is granted pre-trial release, subject to some very harsh conditions. Ankle bracelet, check. Surrender passport, check. Stay inside the Northern District of Illinois, check. Post a property bond in the amount of one million dollars, check. And there is more, much more. He will be a free man but he will wear an electronic hobble on his ankle, and he'll have no money with which to flee. He'll continue to receive his salary from the federal government; it turns out he has voluntarily recused himself from all pending cases and will accept no new assignments from the Chief Judge until the case is resolved. That's not a requirement from this morning, but it did surface during discussions of conditions. The judge, on the record, voluntarily recused himself.