Ky. fen-phen foreman: “There’s a lot of people that should have been on trial that weren’t.”

by Ted Frank on July 7, 2008

Louisville Courier-Journal:

After 52 hours of deliberation over eight days, a federal jury yesterday declared it was hopelessly deadlocked in deciding whether attorneys William Gallion and Shirley Cunningham Jr. defrauded clients of $65 million in Kentucky’s 2001 fen-phen settlement.

After the judge declared a mistrial, the jury foreman, Donald Rainone of Erlanger, said jurors were stuck at 10-2 to acquit the defendants, and had been at that vote for much of their deliberations.

“We felt the prosecution just didn’t have a strong enough case,” Rainone said in a phone interview in which he strongly criticized the prosecution for being unprepared and focusing its case on only Gallion, Cunningham and a third lawyer, Melbourne Mills Jr.

“There’s a lot of people that had their hand in this,” he said. “There’s a lot of people that should have been on trial that weren’t.”

Rainone declined to say who else should have been on trial, saying he didn’t want to “get sued.”

Of course, that the prosecution failed to indict participants in the fen-phen scam who also stole from tens of thousands to tens of millions doesn’t explain why one votes to acquit the criminal defendant attorneys who stole millions–except for the fact that the defendants were able to blame the empty chair for their actions. If the defendants’ allegations about Stan Chesley’s role are half true, the question remains why Ohio disciplinary authorities have not so much as opened an investigation, much less failed to disbar him. But we will perhaps learn more as the civil trial progresses. Meanwhile, as Peter Bronson writes, “giving immunity to someone so powerful, wealthy and politically wired was everything that destroys public trust in the justice system.”

Judge William O. Bertelsman, who has taken senior status, has recused himself from the retrial; the new judge, Danny Reeves, will likely be requested to lower the eight-digit bond for Gallion and Cunningham, who remain in jail. Melbourne Mills, who was acquitted, says he has already spent the $20 million he was paid for his role in the case–a case his lawyer told a jury that he was too drunk to work on and didn’t understand the underlying law. Nice work if you can get it.

Off-the-record reports I am receiving about the trial blame prosecutors’ performance (such as failing to object to defendant expert opinion that contradicted the facts) and Judge Bertelsman’s instructions to the jury; it also seems to me that the defendants were given far too much leeway to argue the law before the jurors when the judge should have given a straightforward instruction that the underlying case was or was not a class action covering all future Kentucky claimants rather than allow argument over that simple legal question. (Answer: it wasn’t. The settlement with AHP explicitly says it’s a lump-sum settlement for existing plaintiffs requiring the attorneys to comply with Rule 1.8, and there is no indemnification provision contrary to defense testimony arguing otherwise.)

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1 Julie De Vos 07.08.08 at 5:05 pm

It would seem that this case was not as open and shut as the media led us to believe all along! If 10 of 12 jurors voted to acquit, what is the purpose of re-trying this case? Obviously Bertelsman sees that they are flogging a dead horse (no pun!) and has the sense to get himself out of the midst of it. Hopefully the prosecutors will do the same, dismiss this case and save the taxpayers a lot of money. The longer they go on with this, the more incompetent they look! Go find some real criminals to prosecute!

2 Lovinsteph 07.08.08 at 10:45 pm

The reporters look like buffoons at this point. The news reports presupposed a guilty verdict, now they are trying to instruct the prosecution and judge on how best to obtain a conviction. Perhaps Bronson should go cover a basketball game, as his legal expertise is severely lacking.

3 Lovinsteph 07.08.08 at 10:48 pm

Argumentation?

Perhaps the Government should have objectified.

When the word argument is not officious enough just add “ation”.

4 Allen Sanders 07.09.08 at 7:31 pm

As church lady would say, “Well, isn’t this special?!” The idiots, I mean “jury” acquits & mistrials the biggest theft from clients in the history of Kentucky, and the “foreman” has the nerve to say “a lot of people should have been on trial that weren’t?!!” IS HE KIDDING? Than why didn’t the 12 fools AT LEAST have the decency to convict the thieves who WERE actually on trial and at least make a good faith effort for the innocent victims? This is an outrage and I hope they lose lots of sleep over the idiot stupid decision they made!

5 Homer Siegel 07.09.08 at 10:09 pm

As Allen Sanders wrote, “Peter Bronson could be John Grissom’s brother, he is such a talented writer.”

Obviously, the jury and the facts of the trial did not support either your hyperbole or the biased and slanted journalism provided by Bronson.

As has been noted in the past, Bronson is not a reporter, he is an editorial page contributor. His columns are not presented as facts, nor are the intended to be fact. They are biased and slanted to provoke comment and response.

He is no more than a web troll, publishing for the sake of flaming the crowds.

Accepting his information as fact is similar to believing a Grisham (not Grissom) novel is a true story.

6 Ted Frank 07.09.08 at 11:10 pm

Siegel has left multiple comments criticizing Bronson, but still hasn’t identified a single fact he’s gotten wrong or even a reason why his opinions aren’t well-reasoned conclusions from the underlying facts. The only topic Siegel has ever commented on as Bronson. He’ll need to bring more than ad hominems to the table if he doesn’t want to be considered a single-issue troll.

7 Homer Siegel 07.10.08 at 3:13 pm

Unfortunately, Franks attempts to base his facts of this case almost entirely on the information of Bronson. He brings his argumentum ad verecundiam to the table, based on the concepts that an editorial writer is a reporter.

This is not a single issue discussion. It is a concern that a columnist is being used to provide factual information. The reporting of this case in the Cincinnati Enquirer did not ever refer to any of the statements noted by Bronson and requoted by Frank in his blog.

8 Ted Frank 07.10.08 at 3:28 pm

Mr. Siegel’s latest comment is as inaccurate as his first five, right down to misspelling my name. The record will reflect that I have been writing about this case for years before Mr. Bronson has.

Mr. Siegel has never commented on any other issue except his vendetta against Mr. Bronson, and has yet to make a substantive remark. He gets one more chance before he’s banned as a troll.

9 Common Sense 07.11.08 at 6:40 pm

The Federal goverment should not waste tax payers and jury time 10 not guilty VS 2 other votes. Is a clear mesage. The press finds them self have to explain why did not report instead of hoping this was there big case. They did not even report Sandy Rios who dealt with half the clients and said there was know conspircy?

10 Allen Sanders 07.14.08 at 12:51 pm

Dear Mr. Frank,
I wonder if you would give your opinion on the Ky. Fen Phen “trial”. First, where do you think the 3 hid all those multi millions? And secondly, do you think the Prosecution will charge them, AND CHESLEY & BAMBERGER this time, with wire fraud AND malpractice?
In my opinion, as a voter, taxpayer, citizen, I think they put the millions in accounts/businesses under their wives/girlfriends/relatives names, to protect it. And I also think the only part the 10 idiot jurors got right was that they said ” alot of people should have been on trial that weren’t.” We all know, from logical reasoning, they are referring to Chesley & Bamburgler & probably Modlin). So, I also believe Chesley and Bamburgler should get charged with fraud & malpractice. Am I correct? Thanks!

11 Homer Siegel 07.15.08 at 7:54 pm

The following is noted:
1.) The misspelling of the name “Franks” was not a misspelling, but a grammatical error. It was meant to be “Frank’s”
2.) The argument against your blog is not a diatribe against Bronson, but that Bronson is reported as providing information about the trial. Bronson is not a reporter, but a columnist. This would be analogous to using a Maureen Dowd column to support an argument against George Bush.
I have nothing against Bronson, I have noted that columnists are not necessarily accurate sources of information.
3.) If you choose to be so limited in your understanding of the problem with your blogging that you need to call me a troll, so be it.

Banish me the waste lands.

Revoke my privileges.

Take away my ability to post.

Your disregard of any first amendment rights deserves to be noted in a web site that ridicules those who lack any understanding of common sense law and civility.

12 Legalesse 08.07.08 at 8:11 pm

The settlement letter you’ve linked to references another letter, which may be where the indemnification agreement was. Or maybe it was a Gallion myth as you suggest. But wouldn’t the prosecution have caught that? Just a thought.

The foreman obviously didn’t understand the case too well, which is the fault of the prosecutors. Chesley can’t really be tried for malpractice because he wasn’t those plaintiffs’ attorney. He signed no agreement with them and there was no attorney/client relationship. He was something like a special legal advisor to Mills, Gallion, and Cunningham. He negotiated the settlement amount and gave them some suggestions. He didn’t set up that charity or take any money he wasn’t entitled to. They knew he wanted 20 mil for his services from the beginning. Did he give bad advice? Probably, but it’s not malpractice to give bad advice to another attorney unless you’re representing him. In this case, Chesley represented no one.

And without Bamburger’s testimony (which would’ve been muuuuuuch different without immunity), the prosecution would’ve had even less of a case than they ended up with.

13 Ted Frank 08.07.08 at 9:06 pm

That’s a very charitable take on Chesley’s role, but one not held by the trial court in the civil fraud trial.

Without Bamburger’s testimony, there is a straightforward conspiracy and judicial-bribery case. I still don’t see why it wasn’t made.

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