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*** UPDATED x1 - Lawyer: Smith will appear before committee *** Derrick Smith’s attorney claims client was entrapped

Monday, Apr 30, 2012

*** UPDATE *** He may appear, but will he really say anything? We’ll see. From Illinois Issues

A lawmaker who is set to enter a plea today on bribery charges also plans to appear before a legislative committee charged with deciding whether he will face disciplinary action. […]

Victor Henderson, Smith’s lawyer, said that Smith plans to appear before the House committee. “Yes. He absolutely will be appearing in Springfield in front of the committee,” Henderson said. “The representative will definitely be there and is looking forward to the opportunity to speak in some detail about where he is and his continued desire to serve and represent the people in his district.”

[ *** End Of Update *** ]

* It’s been expected all along that Rep. Smith would claim he was entrapped somehow into accepting a $7,000 cash bribe, so this is no big surprise

Illinois state Rep. Derrick Smith will plead not guilty Monday to a federal bribery charge, according to an attorney for the Chicago Democrat. […]

Vic Henderson is Smith’s attorney, and he’s strongly hinting he’ll argue the government entrapped his client.

“The government’s own information that is publicly available indicates that they manufactured documents, created - I think - fictitious website venues and things of that nature,” Henderson said in an interview last week.

Separate from the criminal proceedings, an Illinois House special investigating committee is looking into the allegations, a process that could end in Smith’s expulsion.

“He’s going to continue to serve as he was elected to do, and we’re going to defend him and business will go on as usual,” Henderson said.

* My weekly syndicated newspaper column expresses impatience

State Rep. Derrick Smith (D-Chicago) may have more legal troubles than his federal bribery indictment.

U.S. Attorney Patrick Fitzgerald has told the House Special Investigating Committee that his office’s investigation of Smith has not concluded.

“I can tell you that our investigation of Representative Smith is continuing,” Fitzgerald wrote, which could be an indication that the government may file more charges.

But the active federal investigation also means that Fitzgerald refused to cooperate with the committee, which is looking into the allegations to determine if any legislative action is warranted against Smith. Fitzgerald also asked the committee to not do any investigating beyond what already is in the public record, except for interviewing Smith himself.

Smith cannot be forced to testify to the special committee, but that refusal can be held against him when it comes time to recommend whether punitive action should be taken.

Fitzgerald wrote his letter April 10, but the committee didn’t meet to discuss it until 16 days later. Another hearing may not happen for a couple of weeks. This thing is in real danger of dragging on through the summer if the committee doesn’t get its act together soon.

Last week, a member of the House committee privately defended the slow process to date, pointing to the time it took to kick former Gov. Rod Blagojevich out of office.

But Blagojevich was arrested Dec. 8, 2008 and removed from office by the Senate on Jan. 29, 2009 — a total of 53 days start to finish, including House impeachment hearings, two House impeachment votes (one before and one after new members were sworn in), Senate hearings and a full Senate trial and vote to remove.

Smith was arrested March 13, 45 days before last week’s special committee meeting. By Blagojevich standards, Smith should be removed from office by the end of this week. But as I write this, the House doesn’t appear to be close to completing the first small step in the process.

The special committee is the initial step in the process of removal (or other punishment). If it decides that punishment is warranted, another committee will be appointed to decide what punishment, if any, should be meted out. Then the full House has to debate and vote on the matter. It’ll take a two-thirds majority vote to expel Smith.

There are indications that at least some Democratic members of the House committee aren’t completely convinced that this is a slam-dunk case. As if being arrested after allegedly accepting $7,000 in cash in exchange for providing an official letter of recommendation and having it all caught on tape somehow isn’t enough to warrant some sort of punishment for Smith.

I mean, even if the guy was entrapped (and the feds are pretty good about avoiding that), he’s still heard on an FBI tape while a “cooperating witness” counts out a pile of cash for him.

Cooperating witness: “One. Two. Three. Four. Five. Damn, stuck together. Six. Seven. Talk to you later.”

Smith: “You don’t want me to give you yours now? … I’m gonna get you your two, man!”

I can understand why House members don’t want to set a dangerous precedent of kicking out a fellow member after only an arrest. I completely agree that such a radical move should definitely not be a blanket policy.

But Smith was indicted on federal bribery charges directly related to his official legislative duties. This was not a drunken driving case or some minor crime relating to his personal life or something trumped up by a local, partisan prosecutor.

A recent statewide poll I’ve seen shows that just 29 percent of likely Illinois voters approve of the job that the Legislature is doing, while 61 percent disapprove. Endless dawdling on the Smith case won’t do anything to improve that pathetic standing with the public. It’s time to get this Smith inquiry moving, already.

* A different Derrick Smith has been popping up on Google News lately. This Derrick Smith owns a horse that’s racing in the Kentucky Derby. Daddy Long Legs is owned by Smith and others. I’m not sure if that’s a good omen for betting or a bad one. Your thoughts?

- Posted by Rich Miller        

  1. - Oswego Willy - Monday, Apr 30, 12 @ 9:25 am:

    “…fictitious website venues and things of that nature”

    Good for you Derrick. They thought so “much” of you they created stuff!

    “Show me the money” works for Rod Tidwell. Counting the money works for a US Attorney for convictions.

  2. - Excessively Rabid - Monday, Apr 30, 12 @ 9:30 am:

    In an era when elected officials no longer feel obliged to resign because of mere disgrace, maybe we need a statute that treats them like other employees. I propose this: if you’re indicted for a felony or serious misdemeanor (either Federal or state), you’re suspended without pay and the governor appoints an interim; if you’re convicted, you’re terminated and a special election is held to fill the vacancy (if there’s time to hold one before the general). If you’re found not guilty, only then would there be any inquiries held by other elected officials as to whether there was non-criminal misconduct. No more grandstanding pols getting in the way of the prosecution.

  3. - ChicagoR - Monday, Apr 30, 12 @ 9:40 am:

    Note to self for the future: If someone is counting out your bribery payment out loud, they are probably wearing a wire.

  4. - wordslinger - Monday, Apr 30, 12 @ 9:48 am:

    Smith had been in office exactly one year when he was arrested. That has to be some sort of land-speed record.

    It’s also the most interesting part of the story to me. Why were the federales on a nobody so quickly? Why did they go to that much trouble?

    Did they have a snitch on something else who took them upstream? Did Smith have a “For Sale” sign around his neck? Or are they after his clout?

  5. - Tired - Monday, Apr 30, 12 @ 9:49 am:

    There is a system to eradicate situations like these from happening. It is called election time. However it seems like public just doesn’t care about them anymore

  6. - Yellow Dog Democrat - Monday, Apr 30, 12 @ 9:51 am:

    Again, the feds chose not to record two key conversations:

    - the conversation where the bribe was offered

    - the conversation where the bribe was accepted.

    For all I can tell from the indictment, Smith is guilty of attempting to evade Illinois campaign finance laws. He owed the FBI informant $2K for all of his campaign work and they agreed to cash payments under the table so it wouldnt show up on the reports.

    Because the FBI didnt record key conversations, we only have the informants word for what was said. Is the informant a reliable and honest witness? We will find out at trial…but I’m guessing he or she is no Boy Scout.

  7. - Jimbo - Monday, Apr 30, 12 @ 9:54 am:

    Was he counting out thousand dollar bills?

  8. - Oswego Willy - Monday, Apr 30, 12 @ 9:59 am:

    ===My take on that aspect is that Smith was “open for business”, and off the reservation so far, that the “G” was shocked to find Smith had no one to “give up” AND that “For Sale” sign was just for him.

    Allegedly. All Allegedly.===

    I am sticking with my thoughts on what got Rep. Smith.

  9. - Rich Miller - Monday, Apr 30, 12 @ 10:12 am:

    Jimbo, those were stacks.

  10. - hisgirlfriday - Monday, Apr 30, 12 @ 10:32 am:

    If all Derrick Smith’s attorney has to argue here is entrapment, Derrick Smith is screwed.

    A successful entrapment defense needs: (1) government inducement of the crime, AND MORE IMPORTANTLY (2) the defendant’s lack of predisposition to engage in the criminal conduct.

    Derrick Smith was already fired from a previous government job for using his position to benefit himself. Is a jury really going to buy that he was the unwary innocent here to make this entrapment defense work?

  11. - 47th Ward - Monday, Apr 30, 12 @ 11:22 am:

    Good column Rich.

    My main hesitation with railroading Smith is the fact that we don’t know the identity of CS-1. So far, it seems he/she is the government’s only witness. My guess is that CS-1 was cooperating with the government on matters that relate to the 27th Ward and/or another West Side legislator. Smith apparently didn’t know of the G’s interest in his little part of the world, being new to the big game. Now he knows and so does everyone else.

    I agree with YDD post questioning why the government failed to record two key conversations. That raises some questions. And it’s at least plausible to argue entrapment given the transcripts that were in the criminal complaint. From memory, Smith seemed to at least twice raise concerns about whether writing a letter would result in a successful grant award, pointing that he did not have direct influence on the ultimate approval of a grant.

    How many legislators have written letters of support to state agencies on behalf of constituents seeking state grants who were also campaign donors? If that’s illegal, then no one is safe from allegations like this.

  12. - Jimbo - Monday, Apr 30, 12 @ 11:54 am:

    I was going to say, I didn’t think they made those anymore, and if they did, it seems kind of conspicuous to be a legislator spending K-notes.

  13. - hisgirlfriday - Monday, Apr 30, 12 @ 12:24 pm:

    @47th Ward

    But if Smith is arguing entrapment, then the two unrecorded conversations are irrelevant. If Smith argues entrapment then he’s admitting to doing everything the government says he did.

    He’s just saying he shouldn’t be punished for it because the government tricked him and he was an unwary innocent, not an unwary criminal.

  14. - Learning the Ropes - Monday, Apr 30, 12 @ 12:33 pm:

    Every time I hear “entrapment” I think of “The Illustrated Guide to Criminal Law”

  15. - Wensicia - Monday, Apr 30, 12 @ 12:45 pm:

    ==Smith was indicted on federal bribery charges directly related to his official legislative duties.==

    That should be enough to dismiss Smith from the House. He’s going to turn this into a circus, is this what they want going into fall elections?

  16. - Yellow Dog Democrat - Monday, Apr 30, 12 @ 3:42 pm:

    @Wensicia -

    I’d say that the provision in Illinois law which bars those with felony convictions from holding public office makes it clear that the intend of current law is that people not be removed solely on the basis of “indictment.”

    If the Legislature had intended that anyone indicted be removed from office, then the law would say that.

    Do we really want to hand over to 103 State’s Attorneys the presumptive power to remove state officials from office solely on the basis of an indictment? For all of the great prosecutors out there, there’s guys like Jeff Tomczak, who indicted an innocent man and suited him up for Death Row just prior to an election, allowing exonerating evidence to go unexamined for 8 months.

  17. - Yellow Dog Democrat - Monday, Apr 30, 12 @ 3:53 pm:

    @Hisgirlfriday -

    True, as part of the entrapment defense, Smith would have to argue that he took a bribe.

    He IS going to have to decide whether or not to do that, or whether his intent all along was something entirely different.

    However, after that, the burden is on the government to demonstrate he’s predisposed. He’s written, we’re told by the media, two letters of recommendations, only one which involved alleged malfeasance.

    Moreover, he’s accepted and reported presumably tens of thousands of dollars in contributions, and I’m assuming everyone who made those contributions would testify there was no quid pro quo.

    Again, we have no transcripts or recorded evidence of Smith saying he was looking for bribes generally, the initial discussion of this alleged bribe, nor the agreement with the CI to produce a letter in exchange for a bribe.

    As for Smith’s history, unless he was convicted of something as a city employee, I’m not sure that’s even admissible unless he takes the stand. But I’m no expert on evidence rules.

  18. - Anonymous - Monday, Apr 30, 12 @ 4:11 pm:

    ==There is a system to eradicate situations like these from happening. It is called election time.==

    We have had state elections every two years for quite some time, but eradication of elected officials’ mischief does not seem to happen. If anything, it only allows another weed to take root. And there is no real “punishment” in not re-electing someone, unless subsequently getting appointed to an agency directorship or paid state board at a higher salary is considered punishment. Or the losing incumbent becomes a lobbyist, still at more money than a legislative salary. I suppose losing the opportunity to bloviate in the public forum may be punishment for some, but not being re-elected still has its rewards.

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