Lawyers for former Chicago Ald. Edward Burke have filed a formal motion for a mistrial in his high-profile corruption case, arguing a witness’ off-the-cuff remark that Burke’s actions seemed “corrupt” has tainted the jury and violated Burke’s due process rights.
The motion by attorneys Joseph Duffy and Chris Gair filed shortly before 7 a.m. is expected to be discussed in court before the trial resumes Thursday for an 8th day of testimony. Co-defendants Peter Andrews Jr. and Charles Cui have joined in the motion.
The lawyers argued in the filing that the comment violated a pretrial ruling by U.S. District Judge Virginia Kendall and “…and put incurably prejudicial opinion testimony on the critical, ultimate issue in the case before the jury.”
In response, prosecutors argued in a filing that a mistrial was excessive and that the proper remedy for a lay witness making an errant statement had already been applied when the judge ordered that the testimony be stricken and told the jury to disregard it.
The controversy began during the testimony Wednesday of Amtrak executive Ray Lang, who was asked by prosecutors about comments he made in an email to colleagues that the developers of the Old Post Office had made an “old school” move in hiring Burke’s private law firm to do tax appeal work.
At the time, Burke had intervened in an issue the developer, Harry Skydell of the New York-based 601W Companies, had in gaining access to tracks under the Old Post Office site where Amtrak owns tracks leading into Union Station.
When asked about what he’d meant in the email, Lang testified, “A developer hiring an alderman to do property tax work, I thought, was symbolic of the Chicago Way of doing business.”
Assistant U.S. Attorney Diane MacArthur then asked Lang to expand on that answer, and he blurted out, “I thought it was very corrupt.”
Gair, jumped up and loudly objected, and Judge Kendall ordered jurors to disregard that comment.
But after the jury was excused for the day, an infuriated Gair asked the judge to declare a mistrial, saying Lang at one point had been specifically instructed not to use the word “corrupt.”
[ Ed Burke trial: What you need to know ]
Kendall told attorneys to submit written arguments for or against a mistrial, and said she would decide Thursday morning how to go forward. And Lang, whose testimony is expected to resume Thursday, “has a strong will to say what he feels,” Kendall noted. “So I’ll definitely rein that in.”
In their motion, Burke’s defense team said Lang’s testimony “violated the court’s pretrial ruling and put incurably prejudicial opinion testimony on the critical, ultimate issue in the case before the jury.”
“The court should declare a mistrial, and further conduct a hearing in order to ascertain the extent of the deliberateness of the conduct,” Gair, Duffy, and co-counsel Robin Waters wrote.
Motions for a mistrial are not unusual and are rarely granted, however Kendall seemed inclined in this case to at least take a serious look at the situation.
Prosecutors argued in their response that since Lang was a lay witness and does not work for the government, a mistrial would be excessive.
“Ray Lang is not an agent of the government and thus there can be no suggestion that he was speaking on behalf of the prosecution,” Assistant U.S. Attorney Sarah Streicker wrote.
Burke, 79, who served 54 years as alderman before leaving the City Council in May, is charged with 14 counts including racketeering, federal program bribery, attempted extortion, conspiracy to commit extortion and using interstate commerce to facilitate an unlawful activity.
[ Ex-Ald. Ed Burke corruption trial: Evidence seen and heard by the jury ]
Also on trial are Andrews Jr., 73, Burke’s longtime ward aide, and Cui, 52, a Lake Forest real estate developer, but neither of them is charged as part of the Old Post Office scheme.
The development with Lang’s testimony came on a day when jurors saw and heard a string of crucial undercover recordings that form the basis of the sprawling racketeering indictment against Burke, which accuses the longtime Finance Committee chairman of using the powers of his elected office to pressure Skydell and other developers into hiring his law firm to do property tax appeals.
Among them was an Oct. 27, 2016, meeting that was secretly recorded by then-Ald. Daniel Solis where Burke first pitched his private law firm to Skydell and his son.
“Between Danny and I there aren’t many people around town we don’t know,” Burke said on the recording, sliding a business card to Skydell, who then thanked Burke and remarked about his connections.
“I’d be surprised if you don’t know somebody here. If you don’t know somebody, he’s a nobody,” Skydell said.
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In the meeting, Burke seemed the consummate salesman, smoothly touting his longevity, knowledge and deep relationships that could help Skydell with thorny issues the ambitious $600 million renovation plan had already run into with Amtrak.
“As far as Amtrak is concerned, put it in the back of your mind,” Burke said on the video, assuring Skydell that his good friend was on the Amtrak board and that he’d helped make the friend’s daughter a Cook County judge.
That recording was followed by others Wednesday that showed Burke over and over tying the hiring of Burke’s law firm by Skydell’s company to any official action he might take on their behalf, be it helping with Amtrak or another issue that arose with the city Water Department.
“You know, if we’re not signed up, I’m not going to do any lifting for this guy,” Burke said with a shrug on one video recorded by Solis in January 2017. “I haven’t heard a word.”
When Solis reiterated the developers would need help with “a lot of other stuff,” Burke was caught on camera offering a half-smirk.
“So far we got no — the cash register has not, uh, rung yet,” he said.