A controversial federal judge accused U.S. prosecutors yesterday of making a farce of the bribery and conspiracy trial of Airlie Foundation director Murdock Head by asking improper questions and violating court rules.
"The government's making a farce out of this case and I don't approve of it," Judge Oren R. Lewis, the cantankerous 76-year-old jurist, said in the presence of the jury on the third day of Head's trial in U.S. District Court in Alexandria.
Lewis' sharp criticism followed a series of acrimonious exchanges during which the judge repeatedly chastised both prosecutors and Head's lawyers, threatened several times to declare a mistrial, and accused one assistant U.S. attorney of "demeaning the bar."
Before the start of the trial, the prosecutors had urged a federal appeals court in Richmond to remove Lewis as the presiding judge, complaining that Lewis had already displayed an "angry attitude" and "an appearance of bias" against the prosecution during pretrial hearings. The appeals court rebuffed their request, and Lewis declined to step aside.
Dr. Head, 55, is on trial on charges of conspiring to bribe Rep. Daniel J. Flood (D-Pa.), former Flood aide Stephen B. Elko, former Rep. Otto E. Passman (D-La.) and a now-retired Internal Revenue Service agent.
The payoffs, which allegedly included $49,000 in cash and an $11,000 loan, were arranged by Head in exchange for the officials' help in getting federal financed aid and favorable tax treatment for Head's Warrenton, Va.-based Airlie Foundation, according to Head's indictment.
According to knowledgeable legal officials, Lewis' pointed criticism of the federal prosecutors would not provide grounds for a legal appeal if Head were found innocent by the jury. Acquittals cannot be appealed, the lawyers said.
Lewis aimed his harshest rebukes yesterday at Assistant U.S. Attorney Joseph A. Fisher III, a key member of the prosecution team. Lewis accused Fisher of improperly asking "leading" questions of witnesses, going questions that encompassed subjects outside the scope of the indictment and "almost defiantly" violating court rules.
"You do this once more, Mr. Fisher, and you'll be in more trouble than you've ever been in," the judge asserted at one point in the jury's presence. Fisher was later warned by Lewis that he might be ordered to "step aside" and be replaced by another prosecutor unless Fisher complied with Lewis' orders.
Rulings by Lewis yesterday also prevented two other prosecutors from questioning witnesses who had already been sworn in and had taken the witness stand. The prosecutors apparently feared Lewis might declare a mistrial if they proceeded with their questioning. His rulings, issued in his chambers yesterday morning, appeared to limit evidence that could be presented.
"If you cause a mistrial, don't complain," the judge warned one of the prosecutors, Theodore S. Greenberg.
At another point, Lewis admonished the prosecution for calling an IRS supervisor to the witness stand merely to establish that another IRS agent had audited Airlie Foundation tax records. "Why do you bring a government agent up here for that? You don't mind spending the taxpayers' money at all, do you?" Lewis said.
Amid the extraordinary, rapid-fire exchanges between the judge and the lawyers the prosecution presented considerable additional testimony intended to prove the conspiracy, bribery, tax-evasion and tax-falsification charges against Head.
Diane Kidwell, Head's former administrative assistant, testified that she had frequently "inflated" expense vouchers and turned over the additional money from those vouchers to Head. The prosecution contends such financial manipulations produced a slush fund, allegedly used to provide bribes.
Kidwell also testified she had seen Elko. Flood's former aide, leave Head's office serveral times with thick white envelopes. Elko previously told the jury that he received thousands of dollars in bribes from Head in plain white envelopes.
Charlotte Fowler, Head's former executive assistant, told the jury that she had maintained a cash fund -- sometimes amounting to $5,000 -- for Head. She said she periodically "put on a pair of white gloves" to wipe the money clean at Head's request, presumably to avoid fingerprints.
Fowler and several other witnesses also described a complex series of transactions, which the prosecution alleges were designed to launder an illegal $11,000 loan from Head to Jesse P. Hare, the former IRS agent. The prosecution has charged that Hare performed an improperly lenient tax audit of Airlie Foundation in return for the loan.
Head's lawyers appeared to raise doubt about the credibility of some prosecution witnesses during cross-examinations. Elko acknowledged that he once asked Head for an $8,000 loan and was turned down. The incident occurred shortly before Elko started cooperating with federal investigators, the former congressional aide said.
Another prosecution witness, Robert T. Curtis, admitted he had stolen between $20,000 and $25,000 from Head and the Airlie Foundation before he was asked to resign as Airlie's comptroller in 1975.