- Missing Woman: Suffolk County authorities now say the Jersey City woman who disappeared at Oak Beach in May is not among the four female bodies found dumped in Gilgo Beach.

- Olivia Kaufman-Rovira: The Jersey City artist talks to the Journal about her installations and sculptures.

- SBA to Target Underserved Communities: Next spring will see the launch of two U.S. Small Business Administration incentive programs aimed at increasing access to loans for small businesses. The effort will be focused on offering “lower-dollar” loans to underserved communities like Jersey City, Newark and other New Jersey cities.

- Funeral Homes Honored: The Archdiocese of Newark honored five Hudson County funeral directors at the annual Grey Mass earlier this fall.

In Statewide News:

- Education Commish: Gov. Christie has reportedly selected former New York City schools official Christopher Cerf to be his next commissioner of education. MORE from the Ledger.

- ARC Tunnel: Gov. Christie says he will consider an offer from the federal government that would ease its demand that New Jersey pay big for his decision to cancel the rail tunnel under the Hudson River.

- Christie Takes Credit for Job Gains: Gov. Christie is crediting his policies during his first year in office for New Jersey’s increase of 9,300 private-sector jobs in November, saying in an interview this week that Democrats working on job-creating bills should watch what he is already doing.

- Waterfront Corruption: A new indictment of a once-powerful longshoremen’s union leader was quietly unsealed this week, pointing to what the Ledger dubs a “growing offensive by federal prosecutors into corruption on the waterfront.”

- DYFS: Most of New Jersey’s foster children get routine medical care, are more likely to live in a family home than a group home or institution, and wait less than a year to be adopted once a new family is found for them, according to the latest court-ordered monitoring report grading the state’s child welfare system. But for the third consecutive monitoring period spanning 18 months, the Division of Youth and Family Services has failed to do the work critical to returning foster children to their parents.

- Ratepayer-Subsidy Bill: New Jersey yesterday moved ahead with a bill to back the building of power plants with ratepayer subsidies, ignoring warnings it could trigger unintended consequences, such as making it more difficult to build plants in the future and pushing prices higher in the long term.

- Choose New Jersey: Texas native Tracye McDaniel has been selected to head Choose New Jersey, the state’s public-private partnership aimed at recruiting more businesses to New Jersey.

“I finally feel like a free man again. This is the best birthday present I ever received,” he added, referring to his upcoming birthday on Sunday.

“The jury accepted Harvey’s history of honesty, of dedication and of public service,” defense attorney Peter Willis said. ”And I really believe that this is what led to the jury’s verdict.”

One of the main issues facing the government, according to Willis, was the lack of credibility in the testimony of their key witnesses. Relying on political fixer Edward Cheatam, who had already pleaded guilty to taking $70,000 in bribes and was helping the government with hopes for the time-honored tradition of a lesser sentence, may well have been the government’s downfall.

Willis also took the opportunity to go after the governor, a former U.S. attorney who was trying to unseat Gov. Jon Corzine when the 2009 sting went down.

“These weren’t [current U.S. attorney] Paul Fishman’s cases; he inherited them from Christie when he was a U.S. attorney, who used them for his own political ambition,” Willis said. “You can draw whatever inference you want from that.”

Fishman himself issued a press release after the verdict came down.

“We had every confidence in the strength of the evidence but, as always, we respect the jury’s verdict.,” he said. “The loss of an individual case is clearly disappointing, but we are undeterred in our mission to root out those who use official positions to betray the trust of the people of New Jersey.”

The day had begun auspiciously enough for Smith, with a bespectacled Santa Claus wandering the halls early Thursday morning in the Martin Luther King Jr. Federal Courthouse. He appeared to be looking for something, and in a hurry, opening one set of courtroom doors and peeking in, then closing them to try another. 

For most of the day, Smith and his family had sequestered themselves into an empty jury room, in part because of health concerns and the stressful wait for the verdict to come down.

There was little word from the jury for much of Wednesday; they didn’t ask the judge any questions that day — other than if they could go home at 4:40 pm. Similarly, much of today was spent without questions, until the middle of the day, when the jury asked the judge if they could change a verdict. Judge Jose Linares said they could change any verdict up until the moment the foreperson signed the verdict sheet. It was unclear at the time if they were changing a verdict towards guilty or not guilty.

The next question came hours later, shortly before the jury was expected to once again call it a day. The lawyers and Linares went to the judge’s chambers for some time to discuss the matter; when they left, the prosecutors walked briskly out of the courtroom while Willis shadowboxed and danced his way through the room.  

The jury wanted Linares to explain again the charges of bribery and extortion and each of the components needed to be proved in order to find a verdict of guilty.

About 45 minutes later, just after 5 pm,  the court deputy alerted those in attendance that jury had reached its verdict. Nine minutes later Smith would find out that once again he would be a free man.

MORE SMITH TRIAL COVERAGE:

• Day Eleven: Closing Statements
• Day Ten: ‘I Felt Panicky … and Queasy’
• Day Nine: Reenactments and Pat-Downs
• Day Eight: Smith Takes the Stand
• Day Seven: The Prosecution Rests with an Image
• Day Six: Contradictions, Clarifications and Misstatements
• Day Five: Edward Cheatam, Political Neophyte?
• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

“Use your common sense,” she implores the jury multiple times. ”You know he’s not being truthful.”

Moser continues her closing argument, clicking her way through PowerPoint page after PowerPoint page, breaking down the government’s case into video clips and block quotes of L. Harvey Smith’s own potentially incriminating words, aided by explanations of the laws that have allegedly been broken, written in blunt black background under white text. It is a highlight reel of everything that could be considered wrongdoing, a timeline of Smith’s mistakes and questionable decisions. 

More simply, she says, “If it walks like a duck and talks like a duck …”

Moser interrupts her flow at times to mock some of the defense’s explanations of the government’s evidence, calling those moments “CYAs,” or “cover your backside” moments.

“Saying ‘I don’t do quid pro quo’ doesn’t mean a thing if your actions show that you do,” she says. “And just because Smith said he’s a ‘straight man’ doesn’t mean he is,” noting how Smith called state officials and state agencies to inquire about helping along Solomon Dwek’s fictitious real estate projects.

Moser also claims that these actions were above and beyond the government’s burden of proof of guilt. Smith only had to suggest — “with a word, with a wink or a nod,” as she says many times — that he would help them do something in exchange for the promised money, she tells the jury. The action itself didn’t have to be taken.

“There’s only one fair verdict, one common sense verdict, one logical verdict,” she says. “And that is to convict.”

Like the government, defense attorney Peter Willis has indictments of his own — but his all seem to be in pointing range of his client. 

First he directs an indictment at the prosecution, for jurisprudent cynicism, which he punctuates with finger points.

“They,” says Willis, his slow staccato taking its rare turn towards accusation, “accept ‘presumption of innocence’ because they have no choice.”

“They accept ‘reasonable doubt’ because they have to,” he says, pointing again to the prosecution’s table. 
“I,” he says, “embrace it.”

Also under Willis’ critical gaze are the FBI’s methods.

“Sting. That’s a great word. Sting operation. I guess that means the government went with a CW,” he says of Dwek, the cooperating witness who was helping the FBI in return for a deal on his own earlier financial crimes.

“He is the government’s arm to a certain degree,” Willis says of Dwek, the verbose executor of the FBI’s elaborate sting orchestration. ”He operates under the mandate of the government.”

“I’m not one to throw stones at the government,” he continues. “But you have no idea what it’s like when the federal government looks at you.”

And so begins Willis’ parsing of the FBI’s methods. Again maintaining that Dwek and Edward Cheatam were looking to “lure,” “tempt,” and “set-up” his client, he wonders how many times his client had to refuse Dwek’s offer of money before they would leave him alone.

“They said he came back,” says Willis of the prosecutors’ argument that Smith attended multiple meetings. “I say, why don’t you leave the man alone?” 

To highlight his point, he shows a video clip of Dwek talking to Cheatam after Smith told Dwek he doesn’t do “quid pro quo.” 

“What’s that supposed to mean, ‘no quid pro quo?’” Dwek says to Cheatam after Smith leaves the table. “The thing is,” Dwek later says, “like he doesn’t take cash, [and he wants] checks and names, what are we gonna do? How are we going to operate with this guy?” 

This, Willis says, shows the extent to which Dwek wanted to go to bring another corrupt politician to the government. Of Cheatam’s motivation, Willis says it was pure greed, noting Dwek’s lucrative payments for bringing politicians to meet with him.

“Maybe talk to him again and see if we can straighten him out,” Dwek says later on the video. “What’s [I don’t do quid pro quo] supposed to mean? You know I’m an investor, take care of me, I’ll take care of you, I mean come on, you know? Use any word you want, so.”

This law enforcement tactic is too much for Willis, who asks: “What’s our government doing here? They go out and test our morality now? Test our ethics? That’s the role of the government? I guess that’s what they think.”

“And if you say no, they come back because they want to hear no, no, no, no, no.”

But Willis, ever the showman, saves for the end something that had been left unresolved during witness testimony. 

“Would you like to be Sherlock Holmes for five minutes?” he asks the jury. “Would you?”

“Who wrote ‘Smith Team’ on those forms? It’s a mystery, right?”

Eugene Drayton, Smith’s campaign manager denied it, as had Smith, which was corroborated by a handwriting test.  

“No my friends, it’s not a mystery anymore,” he says as he pulls up an image of one of the completed money orders. Preparing for his Agatha Christie-like reveal, he asks the jury to look closely at the zoomed-in documents, pointing to the capital S on the money order. In particular, he draws attention to its peculiar swirl at the top of the letter, the top of the ‘S’ swooping downwards and almost meeting the letter again. And then Willis shows the ELEC form, filled out by Eric Martin, Smith’s former campaign treasurer who was responsible for filling out the document. The S on that form had a very similar appearance.

“Eric Martin perjured himself during his testimony,” Willis claims, grabbing the room’s attention. While no handwriting test has been given to Martin to prove this assertion, as noted during the prosecution’s later rebuttal, there were in fact similarities to the untrained eye. 

As Willis winds down, he addresses the indictment directly — in particular the notion that Smith was a “conspirator” with Cheatam and political operative Jack Shaw.

“If you are a co-conspirator you have to have the same intention, the same thinking,” he says. “Smith shared the same thinking when he returned the money? Don’t you get it? Because if you do, you’ll acquit. But if you buy what the government is selling, you’re going to convict.”

Jury deliberation begins this morning.

MORE SMITH TRIAL COVERAGE:

• Day Ten: ‘I Felt Panicky … and Queasy’
• Day Nine: Reenactments and Pat-Downs
• Day Eight: Smith Takes the Stand
• Day Seven: The Prosecution Rests with an Image
• Day Six: Contradictions, Clarifications and Misstatements
• Day Five: Edward Cheatam, Political Neophyte?
• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

“So you agreed — for the fourth time — to meet a man who you described, after your first meeting with him, as annoying and pushy, and who you just wanted to ‘shut up.’”

“So why did you agree to meet with him for a fourth time?”
 
This fourth meeting, of course, was the setting for the delivery of Solomon Dwek’s second cash-filled envelope, which was either given directly to Smith, or thrown into his car. Either way, Kramer says, Smith acknowledges that he saw the FedEx envelope enter his car. 
 
Did Smith not suspect that the envelope contained cash, considering its identical appearance to the previous envelope and considering the similar circumstances and delivery? Apparently not. 

Apparently he didn’t know what to think of the envelope. At the time, he says he gave Cheatam a confused look, which he re-enacts here for the jurors, but he asked no questions. He maintains that after his conversation with Cheatam concerning the first envelope of cash, he did not think cash would be given again. Was Smith perhaps too trusting of his former friend, whom defense attorney Peter Willis convincingly painted as quite untrustworthy earlier in the trial?

According to Smith, it wasn’t until he received a call from Cheatam and Dwek while on the road that he knew something was amiss with the envelope. It was, he remembers, Dwek saying: “and we’ll keep those FedEx’s coming.”
 
It was at that point, while driving home from the Malibu Diner in Hoboken on Palisade Avenue, that he pulled over his car on the side of the road.
 
“I felt panicky,” says Smith of opening the envelope. “And queasy.”
 
He then called his pastor, Reverend Joseph Jones of Jersey City’s Monumental Baptist Church. After Smith describes himself as spiritual, and an active member of his church (“I would help give turkeys to the needy around Thanksgiving”), Jones is called to the stand to corroborate Smith’s testimony. This he does, but perhaps tiptoeing dangerously close to compromising his own testimony.
 
Jones describes Smith’s request for a meeting with him as “firm,” and as though with a “pressing need.” Absent was the panic, or so he recalls. But Jones could not meet Smith, as he was on his way somewhere. But Jones says he recalled Smith saying, “someone put something in my car.” Unfortunately, fickle as memory can be, he did not mention this to the FBI at the time.
 
As far as the statement itself, and as far as passing something to someone goes, his testimony of “put something” could split the difference between Smith’s claim of “thrown” and Cheatam’s claim of “gave.”
 
During cross-examination, assistant U.S. attorney Sandra Moser, almost as an afterthought, asks Jones, “When was the next time you spoke with Smith after that?”
 
“This morning,” answers Jones, running into him at the courthouse. And then, he adds, “And last night.”
 
What they spoke about last night Moser did not even bother asking, given that the answer itself poses enough problems for the defense. 
 
In his re-direct, Willis does his best to quell any suspicions: “During your conversation with Smith last night, did he suggest you should come here and take an oath, and then tell anything but the truth?”
 
“No,” Jones says.
 
“No further questions,” says Willis.
 
What To Do When You Find $10,000 In Your Car
 
But why, Kramer asks Smith, did you call your reverend? Why not call Cheatam?
 
“Because he was the one who gave me the money,” Smith says, adding that he finally had lost trust in him. “I drove to his house to see if he was there to confront him personally.” And the reason he had called Jones, Smith says, was that he wanted someone there who he felt he could trust when he confronted Cheatam about the envelope.
 
“I’m going to pose a question to you that Mr. Willis asked Ed Cheatam,” Kramer says. “Are you serious?”
 
Cue Willis and his multitude of answers, his knack for suggesting his client never has anything to hide. Recall the photo of Dwek holding the envelope by his leg in front of Smith, Shaw and Cheatam that the government had previously presented as evidence. Today the prosecution brings an enlarged photo printed on approximately five-by-three-foot poster board — because apparently the huge projection on the wall and the monitors made available for the jurors were insufficient. In this newly enlarged photo, Smith can clearly be seen smiling and looking towards Dwek, though Willis does his best to make this photo innocuous.

The photo was put away after the prosecution finished its cross-examination, but Willis requests the image be brought out again, and placed even closer to the jurors than before.
 
“Did you know pictures were being taken of you at this meeting? Or that Dwek was recording the meeting with a hidden camera?”
 
“No,” answers Smith.

So, asks Willis, why didn’t you just take the envelope from Dwek right then? If you wanted the money, and didn’t think anyone was watching, what stopped you?
 
Because, Smith claims, he didn’t want any money. Because he didn’t know it was money, something he says he had neither asked for nor been explicitly offered.

Drayton Takes the Stand

At the close of the day, the prosecution presents their second-to-last witness, Smith’s chief of staff during his 2009 mayoral campaign, Eugene Drayton. He, like Eric Martin, Smith’s former campaign treasurer, and like Smith himself, were the only people in his campaign with access to the campaign bank account to make deposits. Like Martin and like Smith, Drayton also testifies that he did not know of the $5,000 deposit before Smith’s arrest. He also says that the signature and handwriting on the check was not his. 
 
If any and all the witnesses are to be believed, who in fact did deposit this money remains a mystery.
 
The prosecution will present its final rebuttal witness today, and closing arguments will begin.

MORE SMITH TRIAL COVERAGE:

• Day Nine: Reenactments and Pat-Downs
• Day Eight: Smith Takes the Stand
• Day Seven: The Prosecution Rests with an Image
• Day Six: Contradictions, Clarifications and Misstatements
• Day Five: Edward Cheatam, Political Neophyte?
• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

He explains to the jury that Smith will be playing the part of Edward Cheatam, Smith’s former friend and the deliverer of the second envelope. In this scenario, the jury collectively plays the role of Smith. The waist-high separation between the jury and the courtroom floor is to be the open window. Smith, at Willis’s direction, leans towards the jury, his arms hanging into their jury box car and envelope casually in hand.

Smith then narrates the exchange, as he remembers it, that took place after the final meeting between Dwek, Smith, Cheatam and Jack Shaw, this time outside of the Malibu Diner in Hoboken on July 17, 2009. 

“We were talking, and like this,” explains Smith, flinging the envelope into the make-believe car, “he threw the envelope onto the backseat.”

The performance was meant to give life and context to the series of photographs — Government Exhibits 311, 312, 313, 314, and 315 — taken by Special Agent Robert Roman and his FBI surveillance unit. On their own, the photos look incriminating. 

Consider Exhibit 312: the group appears standing in a semi-circle, Dwek holding an envelope down by his leg but in plain sight, with Smith standing next to him. The image makes it hard to believe that Smith wasn’t joining in the group’s discussion, fully aware of what was going to happen next. After all, the envelope has the same look of the one that contained the first $5,000 Smith received. 

But Smith’s explanation of the photo, paired with the video evidence showing the amount of time it takes for Dwek to get the envelope out of his trunk, suggests that the picture does not tell the entire story. Rather than meeting together outside the trunk, Smith says that he was headed directly to his car and passed by the group, expecting nothing more from the meeting, let alone a second bribery attempt.

The courtroom skit, says Willis, is meant to put into perspective the final photo of the series, the image in which Cheatam can be seen leaning through Smith’s front passenger window, his hands and the envelope out of sight. 

How convincing the performance is to the jury remains unclear. What is clear, however, is that Judge Jose Linares does not think the defense’s explanation sufficiently convincing enough to dismiss the case. With consideration to the video evidence and the reasonable inferences that can be drawn by a jury, he says that there is reasonable support for all of the charges brought by the government’s indictment of Smith to stand. And so ends any hope Smith may have harbored for an early exit from the trial.

‘You Make Me Feel Like I Want to Pat You Down’

What exactly did Smith mean when he told Dwek, “You make me feel like I want to pat you down?” This is what assistant U.S. attorney Jenny R. Kramer wants to know as she cross-examines Smith. This exchange occurred at the first meeting between the two, outside of a diner on Staten Island. And although Smith has insisted Dwek made him feel “uncomfortable,” as the prosecution notes, he ended up taking three more meetings with the purported developer.

“He was annoying,” Smith says of the “pat you down” line. “I wanted him to shut up.”

But why, Kramer wants to know, did Smith use the exact words “pat you down?” Kramer, thorough in her questioning, asks where he had first heard the phrase — one that is ubiquitous in police dramas, and one that likely everyone in attendance had heard innumerous times. 

Smith, though, says that he had first heard the phrase while working as a Hudson County undersheriff; he used the phrase, he says, when he wanted to make sure a suspect wasn’t carrying a concealed weapon.

“Were you afraid Dwek was carrying a weapon?” Kramer skeptically asks, noting the size difference between the two and inferring that the larger Smith should have had no fear of Dwek.

“He might have been,” answers Smith, effectively ending this avenue of questioning for the prosecution, at least for the time being. How swayed the jurors are by this remains to be seen, but it successfully sets the tone for the remainder of the day’s cross-examination, which ultimately ends in a frustrated effort to catch Smith in inconsistent testimony.  

Later, Kramer asks Smith to read his lines from the video transcript, while she acts as his line-partner — a less-dramatic theatrical performance than Willis’ earlier directorial performance. If Smith was so adamant about remaining on the right side of the ELEC laws, Kramer wonders, why did he not insist that Dwek, when discussing monetary contributions, go through his campaign treasurer to give money? Couldn’t he have been more clear on this issue at the time, she asks, just as he had been when he explained his intent during direct testimony?

But Smith points out that because of Dwek’s incessant interruptions, which found Smith cut off mid-sentence repeatedly in the video, he did not have an opportunity to do so. At each moment his sentence is ended prematurely by another interjection from Dwek, he suggests, he was on the verge of saying exactly what Kramer had just suggested.

Correct or not, believable or not, the week ends in apparent difficulty for the government.  Smith’s cross-examination continues today.

MORE SMITH TRIAL COVERAGE:

• Day Eight: Smith Takes the Stand
• Day Seven: The Prosecution Rests with an Image
• Day Six: Contradictions, Clarifications and Misstatements
• Day Five: Edward Cheatam, Political Neophyte?
• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

The photo of Smith in question depicts the Assemblyman during his 2009 mayoral run, joined by some of his constituents, protesting in the same area of Garfield Avenue where Solomon Dwek proposed his fictional development plan. The group was there to protest what they saw as the inadequate initial plan floated by the city and industry to clean up chromium contamination at the former PPG Industries site.

In the photo, an unidentified man holds a sign reading “Clean Up … Don’t Cover Up,” while Smith holds a sign made illegible by the photo’s angle. The photo is offered as proof that Smith always put his constituents first and worked on their behalf, a theme of the day’s testimony.

Coupled with Smith’s work for redevelopment of other areas of the city, which he describes as a “personal priority” of his policy life, this will, the defense hopes, put into perspective the motivation of the former legislator. Note also, says the defense, his involvement with the Jersey City Redevelopment Agency (JCRA), from 1993-1998, which seeks to revitalize and address the needs of urban areas through the development of housing, parks and jobs.

So opens Smith’s daylong endurance of the witness stand’s magnification, which will continue today. This photo, and the surrounding circumstances of Smith’s career in politics, is meant to answer the prosecution’s more difficult questions: If Smith was so wary of Dwek, why did he attend four separate meetings with the man? If he found him so suspect, why make phone calls to the various state agencies meant to inquire about the developer’s plans? And finally, why deposit the money from a man who offered cash “donation,” which he knew to be illegal?

Smith’s personal and official interests are trotted out by defense attorney Peter Willis in the hopes that the jury can find a non-monetary impetus for the former Assemblyman’s actions. Smith would have worked on behalf of these development plans regardless of money, Willis implies, for the sake of the community and Jersey City, rather than in return for the promise of “donations” — or more accurately — bribes.

And what of the deposited $5,000 of dirty money? His signature of a check, according to a forensic handwriting test, does not match his actual handwriting. Nor does the “Smith Team” written on the money orders. (The money orders’ creator, Chavaughn Cheatam, earlier testified that she did not write it either.) These facts, not surprisingly, were absent from the prosecution’s case. 

Lapel Video, Redux 

The jury once again sees Dwek’s video evidence, this time with guest narration from Smith, who gives his own explanation of the meetings and what transpired after them. Smith’s explanation differs greatly from the star witness against him, Edward Cheatam.

No, Smith says he did not know what Dwek meant when he said, “I’m neither a Democrat or a Republican. I’m a member of the Green Party.” That Dwek was alluding to bribery, Smith insists, he did not realize.

And no, when Smith said he would need checks rather than cash, it was not meant to obscure the source of the money; rather, it was to make sure it was all above board, he says.

After all, while an individual can only give $2,600, a husband and wife together can give $5,200 to a single candidate. And if someone gives to an entire ticket they can give up to $26,000. So $5,000 is not unreasonable, if given accordingly, he points out.

How was he to know, he asks, that this conversation would be used to suggest he was trying to skirt the law?

On the stand, Smith recounts another set of priorities during his time as an elected official, one that takes on extra meaning as he faces possible prison time: second chances.

“If you don’t give someone a second chance,” he says, “you’re only going to make [criminals] want to be a criminal again.”

MORE SMITH TRIAL COVERAGE:

• Day Seven: The Prosecution Rests with an Image
• Day Six: Contradictions, Clarifications and Misstatements
• Day Five: Edward Cheatam, Political Neophyte?
• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

Nevermind the arrest interview with Cheatam, the one where he used — accidentally or not — the word “thrown” in describing the passage of the money to Smith. Nevermind Willis’ carefully placed doubt in the prosecution’s facts, its witnesses, or the indictment’s occasionally loose wording. This image, one of a series of three, was taken during Roman’s surveillance of the final meeting between the FBI informant Solomon Dwek, political operative Jack Shaw, Cheatam and Smith. This, this final piece in the government’s case against Smith, is so resistant to interpretation that Willis doesn’t even bother trying to question it, as he has done for so much of the prosecution’s case. It is the somewhat-smoking gun on which the prosecution rests its case.

Leading to the photograph are the two previous photographs. One shows the group of Smith, Cheatam, Dwek, and Shaw meeting in the parking lot outside the Malibu Diner in Hoboken, on July 17, 2009; the second shows Cheatam holding the envelope that has in fact been opened, its contents presumably seen by the assembled group. Though unclear from the photograph on the wall, Roman says that, under magnification, the fact that the envelope had been opened was indisputable. 

This testimony is more than enough for Willis, who does not bother trying to catch Roman in any misstatements or technicalities, as has been his M.O. thus far in the case. It also provides the biggest challenge to Willis’ attempt at constructing the agreed-upon facts in a light favorable to Smith.

Before these photographs appear in court, the prosecution does its best to cover any and all other loose threads.
Calling the relevant officials to testify, the prosecution aims to lay to rest the discussion of just what exactly Smith had promised to Dwek.

Prosecutor Sandra Moser prefaces their testimony by arguing that even without this evidence, the conversation in the diner itself — in which Smith, a then-elected official, suggested he would do something for money irregardless of a) if he performed the action or b) if he received money — would be enough under the Hobbs Act to find him guilty.

Still, for the benefit of the jury, for which such fine distinctions and inflexibility of legal thought may not carry the same weight, she presents several witnesses whose testimony, she argues, suggests that Smith had in fact acted on Dwek’s request. 

These include Assemblyman John Wisniewski, the chair of the Transportation Committee; Stephen Dilts, commissioner of the New Jersey Department of Transportation at the time of the alleged crime; Mark Mauriello, acting commissioner of the Department of Environmental Protection at the time of the crime; and Dan Ryan, the former special assistant to commissioner Mauriello. 

Smith contacted John Wisniewski to inquire about an access application from Route 440 to one of the proposed but fictitious projects being touted by Dwek.

Wisniewski says Smith initially called to ask him if he could represent a “client” of his in his capacity as a lawyer — Wisniewski has his own legal practice — regarding a land-use approval deal.

“At first I said yes,” Wisniewski recalls on the stand. However, once Wisniewski learned that the issue concerned the DOT, he says he told Smith that he could not take on the client because of a conflict of interest. 

He explains that he told Smith that a lawyer who is a public official cannot represent a private interest against the state, of which he is an employee as an assemblyman.

“Oh, yeah,” responded Smith, according to the testimony. “Right. I should have known that.”

Wisniewski says he then suggested Smith contact the DOT himself, and that if he didn’t hear back then Wisniewski would make a call on his behalf.

“He was a member of my committee and I wanted to make sure his concerns were addressed,” Wisniewski says.
Dilts, Mauriello and Ryan all testify along similar lines, of conversations between themselves and Smith regarding the Route 440 application and obtaining a No Further Action letter about a fictional Garfield Avenue development.

As the witnesses and both lawyers acknowledge, none of these contacts or requests are in and of themselves improper. The question for the jury, then, remains. Was Smith acting as any politician would, trying to call in favors for local projects in the works? Or was he motivated by the corrupting influence of Dwek’s cash-filled FedEx envelopes?

There is a day off Wednesday; the trial will resume Thursday.

MORE SMITH TRIAL COVERAGE:

• Day Six: Contradictions, Clarifications and Misstatements
• Day Five: Edward Cheatam, Political Neophyte?
• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

That point is that Cheatam’s testimony is at best mistakenly stated and, Willis hopes, that Cheatam appears to be an inconsistent witness. Chetam tries again with his explanation, admitting that while he took money from Dwek to assist in his bidding for tile work for the BOE, because of the closed-door nature of the bidding process he could not actually have delivered on his promise to Dwek.

When Willis catches him in this contradiction Cheatam eventually acknowledges it during the cross-examination. Yes, he says, he had misspoken under oath. Whether it was a simple misstatement or a bald-faced lie, Willis’ point is indeed made, and the defense attorney reminds Cheatam that there is more than this trial hanging in the wind: as part of Cheatam’s plea deal and pledge to cooperate with the prosecution, any incomplete or inaccurate testimony will negate any benefits he is set to receive from said deal.

Today’s redirect centers on parsing what exactly L. Harvey Smith told Cheatam to do at Perkin’s Diner on Staten Island. Specifically, whether the language Smith used sufficiently suggested intent to launder money and accept a bribe, or as the defense maintains, whether this was an idea that Cheatam ran with on his own, beyond Smith’s explicit instructions.
 
Richard Greene

Richard Greene, a one-time Smith aide and former co-worker of Cheatam at the Hudson County Office of Business Opportunity, feels his friendship was abused, both by Cheatam — for bringing him into the meeting where he would be asked to deliver the first envelope of money to Smith — and by Smith himself — because of a “lingering feeling” otherwise left unexplained.
 
The government charged Greene for his involvement in delivering this bribe money to Smith, but the week before this trial began the feds dropped the case. On the stand today, he also claims that the government promised him nothing in return for dropping his case, maintaining he has no hidden motives to influence the trial either way.

Yet Greene is unable to articulate how Smith abused their friendship, which by his own admission wasn’t much of a friendship to begin with. Characterizing himself as a spiritual adviser to Smith — though he only met with him “once or twice” in this capacity — the two, he says, were not in fact good friends.
 
Rather, Greene says he was asked to be present by Cheatam to act as mediator, owing to Cheatam and Smith’s on-again/off-again relationship, and that he had no interest in the meeting’s purpose beyond this. That is, unless you ask Cheatam, in which case you’d hear that Greene overheard a conversation between Cheatam and Smith at work, and asked to come to the meeting himself. Such contradictions, as it turns out, rule the day’s proceedings.
 
Based on his negligible participation in the meeting at the diner, however, it appears Greene was mostly asked to be present so he could deliver the cash-filled envelope to Smith, a process he recounts today in his testimony.
 
After entering the car, he relayed a message from Dwek to Smith that the envelope contained the first $5,000, and that the second $5,000 would be delivered after the election. Smith then allegedly told Greene to slide the money between the car’s center console and the passenger seat. This was the extent of their conversation about the money, Greene says.

After the diner meeting, Greene says, he learned from Cheatam that Smith returned the money, but he never asked why. 
 
“Well,” he said to Cheatam, “you know him better than I do.”
 
In the end, Greene insists he did not think he was doing anything illegal or unethical in delivering cash to an elected official.

Eric Martin & Chavaughn Cheatam
 
The balance of the day is taken up by a series of witnesses briefly called to the stand, who mostly give testimonial clarifications of certain questions. 
 
The first of these witnesses, 28-year-old former Smith campaign treasurer Eric Martin, is asked about the campaign’s bookkeeping records, or lack thereof. Through Martin, the prosecution highlights how, despite initial objections to the cash “contribution,” Smith did eventually accept the entire sum of money after it was laundered into money orders and checks by Cheatam. If he accepted the money and thought it had been legitimately delivered, why would he fail to note it on his Election Law Enforcement Commission (ELEC) form, which requires candidates to declare all contributions greater than $300?  

Martin admits to never having heard of the contribution prior to Smith’s arrest. Further, a signed acknowledgment from all ten candidates running on Smith’s slate shows that Smith had signed off on the ELEC form that all the contributions received were accounted for. This, coupled with a bank statement of Smith’s account showing a deposit of $5,000 on May 6, is the most damning of the evidence presented by any of the small-role witnesses.
 
Willis rests his defense strategy on the charitable largess of “reasonable doubt.” Through cross-examination, he has Martin explain that, in fact, no one knows who deposited the $5,000 into the account. He also notes that the ELEC form had been filed prior to the bank statement’s arrival, so Smith’s signature would have come before the money had to be declared to ELEC.

Following Martin, Chavaughn Cheatam, Edward Cheatam’s niece, takes the stand, and continues the day’s theme of contradictions. In her testimony she recounts her version of Edward Cheatam’s — consistently referred to by the affectionate nickname “Uncle Eddy” — visit to her home.  She remembers her uncle telling her that he needed a different name on the money order, because he had already given the maximum contribution of money for an individual donor, which is $2,600. This, however, runs contrary to Cheatam’s sworn testimony, when he told the jurors that he did not want his name on the donations because he was contributing to multiple mayoral campaigns.
 
Chavaughn Cheatam says that she did not think anything suspicious of this, and had not bothered to ask her uncle for an explanation, simply saying that when her uncle asked for a favor she would do it without question.
 
“He’s like a father to me,” she says.

MORE SMITH TRIAL COVERAGE:

• Day Five: Edward Cheatam, Political Neophyte?
• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

Despite always having an answer usually delivered with a mechanical evenness, Cheatam now finds himself resorting more often to some equivalent of “I don’t remember” or “I didn’t know.” So when Willis turns the tables on Cheatam, who is here to testify about bribes taken by Smith, about the bribes he took from FBI informant Solomon Dwek, Cheatam says it was all just a simple misunderstanding of what constitutes a bribe in the first place. This answer, Willis maintains, suggests a gap either in the truthfulness of the star witness’ testimony, or of his reasonable knowledge.

To begin, how was Cheatam to know that political consultants are not generally paid in monthly lumps of $10,000 cash for bringing politicians to the table? Or that it would strike some as unusual not to deposit such large amounts of earned income into a bank account? And that this in and of itself constitutes money laundering? 

Cheatam testifies that he deposited “some … but not much” of the money into a bank. Some more of it — $13,000 to be exact — was found sewn into a shirt during the FBI’s raid of his house. But Cheatam can’t account for the rest of the money given to him by Dwek, posing as corrupt developer David Esenbach.

Minus the $13,000 shirt and a handful of small expenditures, this leaves more than $50,000 missing. Cheatam, though, claims he never bothered keeping track of exactly how much Dwek paid him, so he isn’t sure if it is that much either. The total figure of cash that flowed from Dwek to Cheatam — $70,000 — is only available because Dwek was working for the FBI, and the government is not always as careless with their money as Cheatam may have been. 

Willis, and the jurors, discover all of this during a daylong Friday cross-examination. They also learn, according to Cheatam, that there were no big purchases accounting for where the money went, and the vacations he took with his wife were largely funded by other means. The bulk of the money, it seems, has simply disappeared.

As has what’s left of Cheatam’s credibility — or so the defense hopes. 

Willis presents the very same video evidence used by the prosecution, as well as a transcript of Cheatam’s arrest interview with the FBI, to highlight contradictions in his testimony. And for a man who, in Cheatam’s own words, “wants to do the right thing and tell the truth,” it would certainly help to appear believable.

Note the gaps in knowledge for a man who has held various official positions in Jersey City and Hudson County. Money laundering, straw donors, the phrase “quid pro quo” — these are just a handful of things Cheatam, in his sworn testimony, claims to not understand. As we see in the video evidence, the last of these was used in a conversation he was party to.

Willis continues to build his case by noting how Smith returned the first cash envelope of $5,000 to Cheatam, saying that “money is going to be a problem,” and that he needed contributions to be in check or money order form with the donor’s name on it. Why then, Willis asks, did Cheatam go behind Smith’s back to illegally convert the cash?

Cheatam, for his part, says he thought this is what Smith meant when he said he couldn’t take cash.

If entrapment, rejected as a defense by Judge Jose Linares, is outside the borders of this trial, “set up” may not be. Especially if the man accused of doing the set up — Cheatam — cannot be trusted. 

Then there is another question that Willis kept returning to: why, of all the politicians Cheatam knew to introduce to Dwek, did he call Smith, with whom he’d had a falling out? Why, Willis asks, did he involve Smith’s pastor to get Smith to the table? (Cheatam says the pastor overheard a phone conversation where they both work and wanted to “get involved.”)

Willis wonders if Cheatam was in fact trying to put his former friend in harm’s way? Was he “luring” Smith to temptation?

Willis closes the day far more bluntly. If Cheatam’s memory has failed him about so many of the details of this case during today’s testimony, why should the jurors believe him when he claims to remember specific details like conversations he had with Smith?

As with so many of the day’s answers, Cheatam seems unsure on this point too.

MORE SMITH TRIAL COVERAGE:

• Day Four: Video, Audio & the Discrepancy of Memory
• Day Three: Edward Cheatam Takes the Stand
• Day Two: Parsing the Meaning of ‘Lure’

Speaking with Assembly Transportation Committee chair John Wisniewski for help arranging the construction of an off-ramp from Route 440 to a proposed development site. 

These were the promises made by L. Harvey Smith to Solomon Dwek (posing as David Esenbach), according to Edward Cheatam’s testimony and the supporting video evidence, on July 16, 2009 at a diner in Jersey City. For Smith’s help in his official capacity as state Assemblyman, he would allegedly receive $10,000 in cash stuffed into a FedEx envelope, which would be given to him by Cheatam in the parking lot of Hoboken’s Malibu Diner the following day.  
 
Thursday’s proceedings again find Cheatam sitting at the witness stand, this time for the day’s entirety. In part this is because of Cheatam’s explanatory answers, which were somewhat minimal and required exhaustive probing from Assistant U.S. Attorney Jenny Kramer. This extensive testimony is also made necessary by the video, which was often shaky and at times hardly audible, presented to highlight the prosecution’s somewhat understated evidence.
 
In the video, Dwek attempts to sell Smith on the merits of two ultimately fictional development projects, one in Bayonne off of Route 440 and one in Jersey City on Garfield Avenue. Dwek outlines the plan for the Garfield Avenue proposal and its community appeal, ticking off the amenities: swimming pool, public playground, 780 units of affordable housing, perhaps even a day care center or preschool.
 
Smith jots notes on the back of a now-famous mustard-stained diner placemat to keep track of Dwek’s requests, including important people to speak to and the organizations he needs to contact, such as the DEP and DOT. That placemat has also been submitted as evidence by the government and is put on display in court today.

Later, Smith can be heard promising to help with these various issues “within the next few months” while he would still be in office. Smith had chosen not to run for re-election as he focused on his failed run for Jersey City mayor.
 
The video also details additional evidence from the government’s case.

At one point, Dwek refers to himself as a “generous man,” to which Smith deadpans, “According to you you’re generous.” Greeted with laughter by the group of Cheatam and political operative Jack Shaw, as well as by Dwek himself, the moment almost appears innocuous. All the same, Dwek takes him at his words. The prosecution claims that the moment Cheatam later handed the aforementioned envelope filled with $10,000 to Smith — as well as the dollar figure chosen — was set in motion by this joke. 

The handoff moment, not sufficiently caught on Dwek’s hidden camera (he is outside in the parking lot, but not close to Cheatam and Smith at the time), has become pivotal in the case. The defense maintains that rather than handing the envelope to Smith, Cheatam “threw” it into Smith’s car unnoticed while he and Cheatam were talking.
 
Shortly after this, in a moment that was caught on video, Dwek approaches Smith’s car to tell him that he doesn’t want to be referred to as a “cheap skunk anymore,” in reference to the large payment.
 
The video continues with Dwek returning to Cheatam and asking him what Smith did with the money, noting that he did not see it in the car while speaking to him. During his testimony, Cheatam says that he saw Smith quickly slide the money down by the passenger seat floor.

The prosecution moves from video to audio as it concludes Cheatam’s testimony, playing a recorded phone conversation between Cheatam and Dwek. The latter asks if Smith is “happy with the 10 in the FedEx.” Cheatam tells him yes, but “that isn’t the problem,” pointing to DEP concern over contaminated water as a possible reason why Smith may not fulfill his end of the bargain. Later, when Smith himself gets on the line via conference call, Dwek suggests more FedEx envelopes will come his way.

“Okey-dokey,” Smith says of this promise.

As the afternoon hours tick by, Peter Willis launches into his defense, cross-examining Cheatam in what could best be described as a frustrated effort.

Answering many of Willis’s questions with “I don’t remember,” Cheatam’s responses to the defense make his short responses to the prosecution sound long-winded.

Willis, in this questioning, alludes to a number of supposed events in the history of Cheatam and Smith’s on-again/off-again friendship, of which only a rare few sounded familiar to Cheatam. 
 
“Do you remember saying that you threw the money in Smith’s car?” Willis asks.
 
Cheatam: “No, I don’t remember.”
 
“Are you sure?  You’re under sworn testimony,” Willis reminds him. When Cheatam again answers that he does not, Willis hands him a document of the notes taken by the FBI at Cheatam’s arrest. 
 
Cheatam then confirms for the jurors that the document indeed uses the word “throw,” but that he remembers it otherwise, and says that the FBI has it wrong in their notes. This theme, the discrepancy of memory, continues for the remainder of the questioning.
 
In fact, at one point, Willis asks Cheatam if he is “taking any medicine” that would result in his forgetfulness or has any “memory problems.” The prosecution quickly raises an objection, which is sustained by Judge Jose Linares. 

The cross-examination of Cheatam will continue today, along with additional video evidence and documents that Willis suggests will either contradict or — more hopefully for Willis — refresh the memory of the witness.

Photo of Smith from an April 2009 mayoral forum by Steve Gold