Day 38: Government witness pushes back at defense; Ferguson lawyer sidelined after painful spill

DETROIT (WXYZ) - Follow along with day 38 in the Kwame Kilpatrick corruption trial as 7 Action News Investigator Ross Jones blogs live from federal court: 

11:10--Court ends early:  "It seems like we're snake bit in this trial," Judge Edmunds said, disclosing that Susan Van Dusen seems to be alright, but had to go to the hospital to be checked out.

Court will resume tomorrow at 9AM, hopefully with Susan Van Dusen.

10:55--Attorney hurt: Is this place cursed?  Defense lawyer Susan Van Dusen--who was just questioning McCann--took a spill on her way out the courtroom and seems to have hurt her nose (she may have landed on her face).  Court is on hold for right now. Not sure how this will affect the day.

You'll recall earlier that Ferguson's other lawyer Gerald Evelyn was taken out on a stretcher back in October after suffering from a heart ailment in court.

10:35--Short break: Time for the morning break.  Van Dusen and McCann may need one after this morning's back and forth. 

10:29--Memo: Another reference to pass through contractors was made in a memo between a Ferguson subcontractor to Soave Enterprises.

"(Ferguson) seemed more open to a materials management agreement but was concerned that it not be a pass through," wrote an employee with Insituform, another subcontractor working with Soave.

Again, McCann said Ferguson was employing "self-serving theater" in his overtures that he not be used as a pass through.  Van Dusen pounced.

"You question the sincerity in the pride in who he is and his company?" Van Dusen asked.

The prosecution objected to the question, and Judge Edmunds sustained the objection. McCann again said that Ferguson was unlike any other subcontractor.

"No one had ever delayed contract negotiations unreasonably when there was millions in dollars of work waiting for them to do.  This was indeed a very unusual situation," McCann said.

10:20--McCann's notes: We're about to get a look at the notes McCann took during her interactions with Ferguson, which she initially said she took because she thought she may have to "tell this story" one day.

In a conversation with the FBI years ago, though, Van Dusen points out that she took notes when she dealt with people she was uncomfortable with.

The first bullet-point she wrote on December 2, 2002.  "Ferguson difficult to work with."

Van Dusen said he was fighting (i.e., being difficult) for the sake of his employees.

"No," McCann said, "Mr. Ferguson was fighting for himself."

10:17--Cripple this company: McCann is offering her own spin on Ferguson's push-back during contract negotiations.

"From our perspective, this could have been a situation where he was intentionally crippling this company by not doing work," McCann said.

"Mr. Ferguson's difficulties were of his own making...the reason he wasn't at the table was because he didn't want to be," she said.

Van Dusen said this was merely her opinion of the chain of events.

"I think reality speaks for itself," McCann said.

10:10--Getting testy: Neither Van Dusen nor McCann are raising their voices, but the back and forth here is getting a little heated.

"You were used to working with minority contractors who were compliant, weren't you?" Van Dusen asked.

McCann disagreed, saying: "We haven't experienced this with any subcontractor."

9:57--"Pure pass through:" An e-mail from a company working with Soave Enterprises indicates that the company (Insituform) was discussing using Ferguson as a "pass-through" company.

"I was hoping that I could make our labor lease agreement with Ferguson a pure pass through but our insurance company has interjected," wrote John Marich of Insituform, a company working with Soave Enterprises.

McCann says the e-mail was referring to how Ferguson would be treated for insurance purposes. Van Dusen is trying to use this to show that Ferguson Enterprises was being used as a "pass through" company, where revenue would flow through it and into Soave's pockets.

9:55--Profit: Van Dusen is talking about how Ferguson discussed with McCann that he wanted to achieve 3% profit on the work he performed.  McCann agrees.

"Mr. Ferguson wanted 3% on the $50 million job, not on the work he performed,"

9:42--Bobby's World: Van Dusen is leafing through a pamphlet that Ferguson Enterprises provided Soave Enterprises, detailing his work on Ford Field, Comerica Park, Compuware Headquarters and other major downtown sites. It also lists his many pieces of equipment that Ferguson Enterprises had at its disposal, showing that he didn't need anything to be leased to him.  The argument here is that Ferguson was clearly the right choice for the job. 

9:40--Volley continues: Give Van Dusen points for persistence: she has tried several more times to get McCann to agree with her that Williams was a minority front, essentially re-wording the same question over and over.  Again, though, McCann is pushing back.

"That is not what was going to happen counselor," she said.

"I don't know how many different ways to say it."

Van Dusen and McCann make an interesting pairing.  I don't get the impression that either is accustomed to losing arguments. 

9:33--Right fit: Van Dusen said that, when McCann met Bobby Ferguson, he wasn't in need of any "mentoring," as Soave Enterprises was offering Charlie Williams.

"You met a man who didn't need any equipment," she said.

"He had his own employees...Ferguson Enterprises had been in business for over 40 years," Van Dusen said, adding that Ferguson insisted that he wouldn't play the role of a minority front.

McCann shot back, saying that Ferguson's comments "were bits of self-serving theater."

9:24--Minority fronts: Van Dusen is trying to paint Soave's original subcontractor Charlie Williams as a minority-front (someone who was used solely for his African-American status, not because of his business expertise or experience).  McCann and Soave have testified earlier that Williams was going to be mentored by Soav Enterprises.

Calling it a "pass-through arrangement," Van Dusen is trying to have McCann acknowledge that Williams was just brought in because he is African-American.  But McCann isn't playing ball.

"I won't agree to that," she said.

9:17--Van Dusen: Susan Van Dusen is up now, continuing her cross-examination of fmr. Soave vice-president Kathleen McCann.

Van Dusen claimed that it was not unusual for Bobby Ferguson's name to be mentioned to Tony Soave, because Soave was a major minority contractor in Detroit.

"I had no knowledge that that was his stated place," McCann said.

"Had never heard of him," she said.

9:16--Technical difficulties: Turns out that court did start on-time, but the folks who turn on the closed-circuit feed for reporters to watch the day's proceedings on failed to switch it on in time.

9:13-- Late again: We still haven't gotten underway in Judge Nancy Edmunds' courtroom. There's a new court policy that requires everyone associated with the Kilpatrick case to come in on the Lafayette Street entrance, rather than the Fort Street one which has a much faster line and is (normally) reserved for lawyers and defendants. 

I understand from my colleague Jim Schaefer (from the Detroit Free Press) that Mayor Kilpatrick was behind him in line (I don't normally post information from other reporters, but Jim won a Pulitzer).

9:00--Day 38: Welcome back after a weekend off from the fun of federal court.  I was off Friday (my apologies to those of you who sent e-mails wondering where the heck the blog was), but I'm re-charged and ready to roll. 

On the stand still is Kathleen McCann, a former Soave Enterprises vice-president who on Friday assured defense lawyers that her company was extorted by Bobby Ferguson.  She described their business partnership on a $50 million contract as a "forced marriage," and didn't wilt under the pressure of cross-examination, according to my colleague Heather Catallo.

Have a question or comment for Ross?  E-mail him at rjones@wxyz.com.  You can also follow him on Twitter @RossJones7 or like him on Facebook.

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