Vince Fumo Deserves a New Trial

Light prison sentence aside, the former state senator didn't get a fair day in court

Lost in last week’s coverage of the earthquake, Hurricane Irene and Queen Arlene, was the appeals court ruling surrounding the short prison sentence given to former State Senator Vincent J. Fumo. A panel of judges in the U.S. Court of Appeals for the Third Circuit ordered a new sentencing hearing for Fumo. This was a rare and extraordinary move by the appeals court, but it was the correct one. However, if we are going to re-open the Fumo files, then the once-powerful pol also deserves a new trial.

That’s because U.S. District Judge Ronald L. Buckwalter didn’t just screw up Fumo’s sentence; he erred by not protecting the former state senator’s sixth-amendment right to an impartial jury. The appeals panel rejected Fumo’s request for a new trial on these grounds, but the evidence indicates he has a legitimate case.

At issue are a number of poor decisions Buckwalter made during the trial that would have helped to ensure jurors only weighed the evidence presented at trial. For starters, the jury was never sequestered, a hardship that would have shielded them from the intense media coverage and public discussion of the high-profile case.

Buckwalter also only held court four days a week. (What is this, Italy?) The move allowed jurors to go to work on Fridays where they were more likely to face questions or overhear gossip and opinions about the case.

Buckwalter also failed to instruct jurors—on a daily basis—not to speak about the case with others or follow any news coverage of the trial. This is often a standard refrain by judges at the end of each day in court. He did give such instructions six times over the course of the lengthy trial. But Buckwalter failed to issue such basic instructions on the first day of the trial, and often only did so after requests from defense attorneys.

More problematic, there is evidence some jurors violated Buckwalter’s minimal instructions. One juror posted messages about the case on Facebook and Twitter and another learned from co-workers outside of court that Fumo had a past conviction in a corruption case that was later overturned. A third juror said the entire jury was aware of media coverage surrounding the Facebook and Twitter messages from the fellow juror, an indication the jury was tuned in to media coverage of the case.

Instead of holding a hearing to probe these incidents, Buckwalter dismissed them out of hand. Head in sand is not part of the judicial code of conduct. A hearing would have allowed defense attorneys to ask jurors what they knew and when. Maybe the evidence would show that a new trial wasn’t necessary, but Buckwalter should have at least allowed a hearing before making a decision that wasn’t fully informed.

Buckwalter’s inaction on the impartial jury matter runs counter to his overreach in slicing Fumo’s sentence. Prosecutors said Fumo’s conviction on 137 counts of fraud, conspiracy and obstruction of justice warranted a prison sentence of 21 years. Buckwalter did his own calculation and said Fumo deserved about 10 to 12 years behind bars. He then went one step further and sentenced Fumo to just 55 months in federal prison. Adding by subtracting.

Buckwalter cited Fumo’s “extraordinarily hard” work on behalf of the public. He was apparently swayed by an outpouring of letters supporting Fumo from influential people, including former governor Ed Rendell and Comcast honcho David L. Cohen. It’s amazing how letters from connected folks, including many who benefited from Fumo’s power and clout, appeared to carry more weight with Buckwalter than the facts surrounding the case.

To be sure, Fumo did a lot of good during his 30 years in office. His brains, leadership and ability to get things done are sorely lacking in Harrisburg and Philadelphia. One could make a case that the city was better off under guys like Fumo, Rendell and John Street. The graft tax was an affront but it was less than the annual tax hikes under Mayor Nutter’s clean and green government, which has little to show for its high-minded efforts besides bike lanes and solar trash cans.

It will be interesting to see how Buckwalter handles the rebuke from the appeals court. He could tack more time on to Fumo’s sentence. Or he could provide a fuller explanation as to how he calculated the shorter sentence and leave it at 55 months. Either way, though, questions about the impartiality of jurors indicates Fumo deserves a new trial.