Rendell's testimony could cap Fumo trial

After seven days and 22 witnesses, the defense in the federal corruption trial of former State Sen. Vincent J. Fumo will feature a big name on the stand tomorrow - Gov. Rendell.

And Fumo, too, might get up there.

As the sweeping case against the once-powerful Democrat finally winds down, the testimony of the two political titans could be the climax of one of the city's most memorable trials in recent years.

Rendell's appearance as a defense witness might seem odd, because Fumo secretly paid for attack ads against him in the 2002 gubernatorial primary, and used a state-paid private investigator to spy on construction of his Jersey Shore home.

In one e-mail introduced into evidence at trial, Fumo advocated making a point about Rendell's possible use of nonunion labor to build that vacation home - after acknowledging that the complaints were "all bull-."

Rendell, at least publicly, has been steadfast in his support for Fumo.

Last year, the governor endorsed him for another term despite the 139-count indictment against Fumo, and expressed sadness when Fumo gave his farewell speech after deciding not to seek reelection.

And when the news broke in 2004 about the FBI's investigation into Fumo's squeezing Peco Energy for a $17 million donation to a South Philadelphia charity, Rendell stood by him, saying: "Gosh, I'm outraged that I didn't think of it first."

Rendell could cap a lineup of defense witnesses that is much shorter, and boasts less star power, than the list of 197 individuals identified as possible witnesses in September.

That list included Philly Pops conductor Peter Nero; U.S. Rep. Robert Brady, the Philadelphia Democratic Party chairman; City Councilman James F. Kenney; radio DJ Jerry Blavat; influential lawyers David L. Cohen and Arthur Makadon; and some judges. Not a single one has been called.

The 22 who have been called included Montgomery County Commissioner Bruce L. Castor Jr., a maid, a driver, an accountant, and several of Fumo's Senate employees.

Rendell is expected to testify about Fumo's workaholic ways.

The governor said last week that Fumo used to call him "all the time" - even when the senator was out of state and "still thinking about problems" that needed attention.

G. Terry Madonna, a professor and director of the Center for Politics and Public Affairs at Franklin and Marshall College, said he believed Rendell was stepping up for Fumo despite any past issues because Rendell "doesn't personalize" political attacks.

Madonna said he also believed Rendell appreciated the help he had gotten from Fumo, who headed the Senate Appropriations Committee.

"I think Rendell generally appreciates and well recognizes the contributions that Fumo made to the city and to the state," Madonna said.

Rendell's testimony could be important to the defense. One part of the indictment accuses Fumo of defrauding the Senate by getting his workers to do personal or political-campaign errands on state time.

The defense has countered that Fumo's staff put in far more than the required 371/2 hours a week, and that any other work for the senator was voluntary.

A former driver for Fumo set the stage for Rendell, telling the jury last week that he sometimes had driven the senator to Rendell's home for meetings that started around midnight.

The governor, in turn, could set the stage for Fumo to testify, and what better witness to precede a defendant to the stand than a popular hometown political leader?

But whether Fumo will take the stand was still unclear. There has been a wide expectation that he will testify, but his lead attorney, Dennis J. Cogan, would not say.

Experienced criminal lawyers say it would not be uncommon for a final decision to be made as late as tomorrow morning.

"You don't make the call until the end," said Jules Epstein, a Widener University professor who teaches criminal law and represents defendants in court.

Epstein said that it was a hard decision, and that defense lawyers typically weighed a variety of factors - how defense witnesses have played out, how the jury seems to be taking it all in, and even whether last-minute legal rulings could throw up a roadblock.

Fumo's team almost certainly is conducting mock sessions, Epstein said, to test Fumo's ability as a witness.

"One would think that part of the preparation on a case like this would be to bring in a damn good ex-prosecutor to cross-examine the pants off this guy and see how he holds up," Epstein said.

And how well Fumo does during such prep sessions, he went on, could further influence the final decision.

"You'll see if there are some questions to which there are no good answers, and that may help inform the decision of whether to testify at all," Epstein said.

Another factor could influence whether Fumo testifies. While juries generally like to hear from a defendant, the big risk is cross-examination, and Fumo almost certainly would face a blistering grilling by Assistant U.S. Attorney John J. Pease.

Epstein called it the "overarching danger," and said it could go poorly for Fumo if prosecutors "spend hours, if not days, confronting him with every piece of damaging evidence and reminding the jury why this case was brought."

Fumo has testified before in a federal criminal case. In 1980, he was tried on charges that he took part in a scheme to put local Democratic operatives on the state payroll as "ghost employees."

Fumo took the stand, but the jury found him guilty. Ultimately, U.S. District Judge Clifford Scott Green threw out the verdict, saying it had been based on a flawed legal theory.

Pease is expected to try to introduce that case as evidence, a move the defense is sure to challenge.

Fumo's codefendant, Ruth Arnao, former head of Citizens' Alliance for Better Neighborhoods, the charity that received the Peco donation, also could take the stand. Her lawyer, Edwin J. Jacobs Jr., has declined to say whether she would.

Madonna said there would be wide interest in Rendell's testimony.

"This is an extraordinarily rare moment when a governor of any state, not just ours, testifies in a federal criminal case as a defense witness," Madonna said.

The trial is not just a hot topic in Philadelphia's legal and political communities. Madonna said interest was high at the state Capitol and across Pennsylvania's political spectrum.

"This is huge," he said, a kind of "trial of the century" for Pennsylvania politics and a senator he said was one of the five most-significant political figures in the last generation.

Zack Stalberg, president of the Committee of Seventy, a government watchdog group in Philadelphia, said the expectation was that Fumo would testify.

"He's got nothing much to lose, and he's as good with his mouth and his brain as anyone I know," Stalberg said. "There's a chance that he might be able to help himself out."

For complete coverage of the Fumo trial, go to http://go.philly.com/fumo

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