Risky move: No witnesses for Harris Co. commissioner
In a move even his attorneys acknowledged was risky, Harris County Commissioner Jerry Eversole's defense team rested Wednesday without calling a single witness after prosecutors ended more than two weeks of testimony alleging that he took bribes to steer real estate contracts to a developer.
The 68-year-old commissioner is accused of taking more than $100,000 in cash and gifts from developer Michael Surface in return for influence on five multimillion-dollar county contracts.
Eversole's defense team said the two men have a 30-year friendship filled with favors, and prosecutors offered no evidence connecting Surface's generosity with Eversole's official capacity.
"They've never shown any connection between the things Jerry and Michael Surface did together and any of Jerry's official actions," said defense lawyer Rusty Hardin. "The issue has always been: Did the people have a pre-existing relationship before the thing of value was given and the answer with Jerry and Mike Surface is that, clearly, they did."
Hardin said it was the first time in his 37-year career that he has rested without putting on any defense.
"It's the measure of two things: One is how much I hope I'm right and haven't messed up, and the other is how certain I am they haven't proved a case," Hardin said. "If we're wrong, we'll find out when the jury comes back."
Jurors are expected to return Friday for closing arguments. To find Eversole guilty, they will have to decide he intended to take the gifts as a bribe.
Federal prosecutors rested Wednesday and survived a motion by the defense asking U.S. District Judge David Hittner to find the commissioner not guilty instead of letting the jury decide. They said prosecutors did not present enough evidence for a reasonable jury to convict for bribery or tax fraud.
Eversole "never meddled or influenced or attempted to influence any of these projects," defense lawyer Andy Drumheller declared. "This all comes down to the very innocent explanation of two friends doing favors for each other."
Eversole's defense has not quibbled with estimates that he received $25,000 worth of antique Colt .45 revolvers and $10,000 more for antique African elephant ivory pistol grips. Surface also paid $63,000 to cover a payment on a $180,000 piece of land Eversole bought, and $17,000 for landscaping, according to prosecutors. The two also took eight trips together, some for golf and others to dude ranches or to collect Old West memorabilia.
Budget rooms, meals
Hardin has said that three of the five contracts at issue were awarded to Surface in the years before the first "bribe" was alleged, in 2002.
He also challenged allegations that Eversole wanted the "good life" by showing that the men stayed at economy motels and ate at Waffle Houses.
Prosecutors are expected to tell jurors to connect the money, gifts and trips with Eversole's official actions.
"There's no serious dispute that there were official actions that benefited Michael Surface," Assistant U.S. Attorney John Pearson said in court Wednesday.
He noted that Eversole voted more than 50 times for contracts and renewals that benefited Surface.
Pearson and other prosecutors declined to comment on Wednesday's events. Prosecutors have made no public statements during the trial.
Trial experts said there are serious risks to Hardin's strategy, but there may also be a benefit because Hardin can downplay the weight of the prosecution's testimony.
"It sends a statement when he stands up in closing arguments and says, 'Their case is so weak, we don't have to present anything,' " said University of Houston law professor Adam Gershowitz. "It sort of has this 'statement of force' behind it."
Strategy has risks
Other benefits include ending the trial sooner and not worrying about putting on witnesses that prosecutors could try to pick apart. Hardin had given notice that the first witnesses he expected to call were Precinct 1 Commissioner El Franco Lee, former County Judge Bob Eckels and Eversole's wife.
However, Gershowitz said, the strategy has risks.
"There is a major risk to not presenting any witnesses and not presenting the defendant, because that's who the jury is hoping to hear from," Gershowitz said. "And here, you have a much more sophisticated defendant, who would be able to speak for himself."
Jurors are instructed numerous times that prosecutors bear the burden of proof. Defendants do not have to present any evidence or testify. The jury also is instructed that it cannot consider that the defendant did not testify, but those thoughts still linger, Gershowitz said.
"Deep down the jury does want to hear from the defendant and it is very hard, as a matter of psychology, for them to follow that instruction."
Even if the jury does convict Eversole, who faces a maximum of 21 years in prison if found guilty, his attorneys may argue on appeal that there was not enough evidence to convict, Gershowitz suggested.
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