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Divine Intervention

The workload increased significantly as we moved toward trial. In February, we started a very interesting and important phase of the pretrial hearings—motions in limine. These were pretrial motions that gave us the opportunity to challenge whether the evidence the government prosecutors intended to present at trial was, in fact, trustworthy from a legal perspective. They had taken document after document and defined them in a way that seemed to support their version of events. I knew for a fact that many of the documents didn’t say what they were being twisted to say. But taken out of context, they would influence a jury. I was pleased to learn that the courts had interpreted our constitutional right to a fair trial to mean that a jury could not be prejudiced with evidence that did not meet a reasonable standard of trustworthiness. In other words, we had the right to petition the judge to exclude some of this material from the trial altogether.

Motion by motion we challenged the relevance and/or trustworthiness of what the government intended to present to the jury. In many cases, the judge agreed with us. This judge was finally reining in the unbridled attempts to create evidence by arbitrarily assigning meaning to documents and events. I was not attending any of the pretrial hearings, but I was reviewing all the motions and following with great interest as they had their day in court. With Randy out, the associate attorney, Alex Walsh, would give me the daily updates. I was really impressed with her and could see how Randy’s absence afforded tremendous opportunity for the younger attorneys. I loved seeing that out of this darkness, something great was being forged.

Randy completed his chemotherapy and tried to come back to work right away. But though the therapy was successful, it would take a few months before he got his full strength back. In late March, just one month from trial, we learned that Randy’s recovery period was not our only concern. On March 27, 2009, Judge Blatt announced that because of his age and his health, he was stepping down from the case. We had lost our judge.

The saber rattling began immediately. The government sent out word to all defense counsel that they had better come in and negotiate a plea because they were going to be destroyed in trial with a new judge. Needless to say, given how well Judge Blatt had come to know the case over the last three and half years, and how fair he had been, the prospect of a new judge at the eleventh hour was disheartening. In the midst of the most dangerous situation of my life, the two forces in this world I had come to have the most confidence in to protect me, Randy and Judge Blatt, were both taken away. This amazing sequence of events was so completely out of my control that I had no choice but to surrender at an even deeper level. It seemed like life was finally unfolding in a way that would assure the demise of whatever was left of my personal self—just what I had asked it to do so many years ago.

No one knew what was going to happen next. The trial date would almost certainly have to be reset, but no one had any idea of a new date or who the judge would be. All we could do was continue to make sure we were ready, just in case. The chief district judge, Judge Norton, took charge of finding a federal judge who could handle a four-month-long trial on short notice. In the meantime, Judge Blatt continued to hold pretrial hearings, and we continued to do very well with our motions in limine. Finally, unable to find a replacement judge, Judge Norton decided to take the case himself. At a hearing in July, we were given the new trial date of January 18, 2010, which was five months away. So now the chief U.S. district judge of South Carolina was going to hear the case. Everything just kept getting bigger and bigger.4 Judge Norton took over the pretrial hearings around August 2009. By then Randy was fully back in the saddle, and he found Judge Norton to be very bright, knowledgeable, and impartial. It turned out that Judge Norton’s rulings were very similar to Judge Blatt’s. We continued to tear down the government’s case in pretrial motions throughout the months leading up to trial. It certainly appeared that the new judge, like the old, saw the weakness of the case being brought against us.

By October, we were three months from trial, and the time had come to reserve housing in Charleston. Years earlier I had asked Randy what the probability was of the government catching on that I didn’t do anything wrong and just dropping the charges. He told me that he expected the government to drop charges against everyone except me, John Kang, and John Sessions—the CEO, the president, and the chief operations officer. Randy would have included the chief financial officer, but he had previously died of cancer.

I wanted to be sure of my odds, so I pushed Randy by asking if it would literally take divine intervention for me to avoid a trial and just walk free. He pondered for a moment and said, “Yes, it would take an act of divine intervention.” With that in mind, Donna and I headed to Charleston to rent a place to live for four months. We made it an adventure. We had both lived at the Temple for more than thirty-five years. We had never been away for much more than a few weeks at a time. This trial is what it would take to force us to relocate for such an extended period. There was, of course, the possibility that my departure would be much longer.

As we approached the trial date, things unfolded in accordance to Randy’s predictions. The government called in the second tier of indicted executives one by one and tried to get something useful before dropping charges. Of course, there was nothing to get, and we were all glad to see our colleagues taken out of harm’s way. That left the three senior executives headed for trial on January 18, 2010.

I received a call from Randy mid-December. He had gotten an indication through back channels that suddenly the government was interested in discussing a settlement. After checking it out, Randy said it seemed prosecutors had had enough, and they wanted me out of the case. We were feeling pretty confident about my position given the successes we had in the pretrial hearings. I told Randy that I wanted the charges dropped with nothing on my record. If they wanted a statement of facts, I would state that I had always believed that everything was being done in accordance with standard accounting principles, but I now saw that Bobby had been doing some things improperly. In other words, I would tell the truth and nothing else.

Somehow, just four weeks before trial, and six years since the raid, light was dispelling darkness. The government insisted that I voluntarily give up a portion of a twelve-year-old stock sale, just in case the share price had been affected by Bobby’s accounting inaccuracies. I doubted that the share price would have been affected, but if it had been, that was money I didn’t want or need. Then, as suddenly as the whole nightmare had begun—it was over. The government agreed to drop all charges against me.

I didn’t feel joy, and I didn’t feel relief. What I felt was a deep sense of appreciation that in the end, truth triumphed. It may have taken divine intervention, but the truth won. Tempering this feeling, however, was the fact that John Kang and John Sessions were still headed for trial. I had been exposed to all the documents in the case, and the only things I ever saw being done willfully wrong were the actions of Bobby Davids and his group. I knew that John Kang and John Sessions had both just done their jobs to the best of their ability. I worked with Randy so that he and his team could do all they could to provide support during the trial. They couldn’t participate directly, but they were present and wrote up most of the summaries, motions, and other documents needed during and after the proceedings.

The trial went extremely well. John Kang’s attorney turned out to be an excellent litigator, and he pretty much handled all the cross-examination of the government witnesses, including Bobby and his paramour from the accounting department, Caroline. By the time the government rested its case, the defense attorneys felt that almost every government witness had been turned into a favorable witness for the defense. That being the case, the defense also rested. Given what had taken place in that courtroom over the past month and a half, no one could possibly feel that the government had proven its case beyond a reasonable doubt. With both sides having rested, the case went to the jury.

The jurors did not deliberate very long. After only five or six hours, they announced that they had reached a unanimous verdict. Given what had transpired during the trial, that seemed like a reasonable amount of deliberation. On March 1, 2010, the jury gathered back in the courtroom and read the verdict: guilty as charged.

The defense was stunned. The judge dropped his head into his hands. What had happened? Post-trial interviews with the jurors showed that the case was pretty much over after opening arguments. The government had presented such a simplistic, overwhelming view of what had been done wrong in the company that most jurors had made their minds up right then. Just hearing the government tell its story had been enough for most of the jurors. It was very sad. Our legal system had not worked. The truth had not been uncovered, and John Kang and John Sessions awaited sentencing.

Only one glimmer of hope was still burning. The defense had filed a motion for dismissal based on the statute of limitations, and the judge had not yet ruled on that motion. On May 27, 2010, almost three months after trial, Judge Norton issued his ruling and dismissed the entire case against John Kang and John Sessions. In that ruling, the judge took the opportunity to again and again chastise the government for what had happened in this case. Among his other complaints, he questioned why the government would keep so many people under indictment for five years and then drop all charges just before trial. Judge Norton pointed out that this had helped drive the pretrial defense cost of the case to more than $190 million.

I was pleased that John Kang and John Sessions were free with nothing on their records. I was also encouraged that at least someone had noticed the absurdity of what had taken place. But it wasn’t necessarily over: the government had the right to appeal the judge’s dismissal. In case that happened, the defense had filed a motion for retrial. This motion was based on the bold argument that the jury had been mistaken—the weight of the evidence presented at trial did not support the verdict. On January 19, 2011, almost a year after trial, the whole truth and nothing but the truth finally broke through. On that day, when Judge Norton signed his ruling regarding the retrial motion, Jefferson, Mason, and Madison must have breathed a sigh of relief. After two hundred years of interpretations of what they had intended—the system had worked. Truth and Justice would have the final word after all.

It had been more than seven years since Bobby Davids had walked into the U.S. Attorney’s Office in Charleston and begun telling his lies. That web of illusion gained momentum and ensnarled everything in its way. But it did not make it past the chief U.S. judge of South Carolina. Judge Norton had sat through the entire trial and heard all the evidence. The jury may have been willing to accept the government’s story at face value—without holding prosecutors to a reasonable burden of proof—but the judge was not. In case his dismissal order was overruled, Judge Norton not only approved the defendants’ motion for a new trial, but in a nineteen-page opinion he tore the government’s case to shreds. He stated that the government had not proven that there was any conspiracy among the executives, but to the contrary, the evidence supported that the executives at Medical Manager believed that the accounting was being done properly. He went on to state that he found the government’s chief witnesses, Bobby and Caroline, to be noncredible, and that Caroline appeared to just be parroting Bobby’s words.

I read Judge Norton’s ruling with a sense of awe and relief. Now it was over. In the end, the person who mattered most had seen through the noise and recognized the truth. I didn’t know that a judge could put aside the jury’s verdict because he believed it was not supported by the weight of the evidence. Judge Norton made it clear that he not only had the right to put aside the verdict, he had the obligation. This was the Constitution in its finest hour. It was framed to protect the citizens from their government. But, alas, it is just a piece of paper. The judge is the only agent through which that protection can come to life. In my eyes, both of the judges in this case are heroes. They showed why our separate branches of government create important checks and balances against one another. These judges had taken a vow to protect the Constitution, and they selflessly did just that.

For those interested, the government chose not to appeal Judge Norton’s dismissal of the case. In the end, all the indicted Medical Manager executives walked away free.