Lawyers for Dr. Murdock Head gave a U.S. appeals court here today a number of reasons why the Washington doctor should win a new trial on charges he conspired to bribe two congressmen.
In fact, 2,470 reasons.
Arlington attorney Frank W. Dunham Jr. charged that District Judge Oren R. Lewis interjected that many comments or questions into Head's six-day trial in Alexandria a year ago, denying the creator of Virginia's Airlie Foundation a fair trial.
In addition, Head's lawyers claimed that Lewis urged defense lawyers and prosecutors on 219 occasions to speed up their presentations. As a result of that "incessant interference" Dunham contended, Lewis "seriously damaged" Head's efforts to defend himself.
Head, a George Washington University faculty member, was convicted on two corruption counts last July and sentenced to 4 1/2 years in prison by Lewis. An earlier conviction was overturned by the 4th U.S. Circuit Court of Appeals because of errors by Lewis.
Today's 53-minute argument before a three-judge appeals panel threatened at times to become a contest between the defense and prosecutors over who had suffered most at the hands of the crusty, 79-year-old Lewis, who has been in semiretirement since 1973 and is known to many lawyers as "Roarin' Oren."
"I think Mr. Dunham is saying the judge must be consistent in his lunacy," Justice Department lawyer David B. Smith told the panel after Dunham complained sharply about Lewis.
Smith contended Lewis severely limited prosecutors, "for reasons best known to himself," by prohibiting most testimony about former Reps. Daniel Flood and Otto Passman. The two Democrats allegedly were paid $36,000 in bribes by Head in exchange for their help in directing a steady flow of government grants to Airlie.
"It was outrageous conduct (by Lewis) in the first trial. It was outrageous in the second," Smith argued. He said errors cited by Dunham "don't amount to much compared to the tremendous damage to the government."
In court papers, prosecutors chided Dunham's statement that he was "thrown off balance and unnerved" by Lewis' repeated interruptions. "Mr. Dunham is not a novice in Judge Lewis' courtroom, having clerked for the judge . . . He could hardly claim to be surprised at the judge's conduct of the trial," the government said.
Lewis is known for his brusque, near-shouting style. He frequently sustains his own objections, takes command of questioning of witnesses and appears fond of telling attorneys he will "show them the way to Richmond," seat of the 4th Circuit, if they wish to appeal his decisions. Dunham today quoted the judge as saying that Head had received the benefit of "what I call the Lewis form justice."
Despite Dunham's efforts to make Lewis "the focus" of Head's appeal, the appellate panel failed to comment on the judge's behavior. "Well, I think we get the point," Chief Judge Harrison L. Winter said, cutting off Dunham in mid-sentence.
Dunham started by quoting Lewis at the beginning of Head's retrial last June as saying, "I don't think I committed any error (in the original trial)."
"No trial judge ever thinks he did," Judge Sam C. Ervin III said drily.
Head, free on bond pending his appeals since 1979, sat in court today listening impassively to the latest proceedings in his case, which stretches back nearly six years. Federal prosecutors began investigating the tall, dapper-looking physician in 1977 after a Flood aide, Stephen B. Elko, told authorities he had helped funnel 11 bribe payments from Head during the 1970s.
Much of Head's appeal rests on what the defense contends were Lewis' incorrect factual statements and misapplications of the law surrounding sworn testimony by Elko, a convicted perjurer.The prosecution countered, however, that Head "is banking on (Lewis') conduct and proclivity for error to avoid going to jail."