Two-handed blawger  Norm Pattis has been  detailing the  progress of the Geoffrey Fieger trial.  It has more to do with the fact that his hero, Gerry Spence, who has never lost a criminal trial, is working the room than any particular interest in Fieger or his alleged offense.  Norm watched like a spectator at the cockroach races; hoping to see a fiery crash.

Instead, Norm posts that the government’s case has fallen into the toilet, begrudgingly admitting that it looks like Spence is going to score big.

It appears that Spence and company have the Government on the run in Detroit. After two days of evidence, the defense’s story is well set. Fieger and company had nothing to hide. The lawyers working for Fieger were eager to contribute to John Edwards’ 2004 presidential campaign because Edwards was a fellow trial lawyer doing the people’s work. The firm hid nothing from anyone, even when some 80 federal agents pounced on each and every contributer, going so far as to travel to a college campus to roust a student. In sum, Fieger and his partner, Vernon Johnson, innocently reimbursed folks eager to participate in supporting a fellow lawyer for the common man.

I can picture Norm’s hands trembling as he was compelled to write those words.  How conflicted he must have felt.  But it’s not coming down quite the way that Norm anticipated.

The Government made a key strategic blunder in this case. Twice, they have called as witnesses lawyers who made contributions to Edwards’ campaign while working for Fieger. Both lawyers received gifts from the Government that are rarely given, to wit: immunity from prosecution. This permits the witnesses to say anything they like on the stand without fear of a prosecution for something other than perjury.

As Norm correctly details, the government almost never gives immunity to its witnesses.  Not that it isn’t sought, but you would think that they have to trade off a pay grade for each witness who gets a free pass.  And what did our government get in exchange for this enormous gift?

Today Paul Brochay, a lawyer in Fieger’s firm, testified under a grant immunity. He testified that he agreed to cooperate with the Government only after he learned that federal agents had appeared at his daughter’s apartment at Michigan State University. It was part of an 80 agent sweep, he said, the night of Nov. 30, 2005, a bizarre kristallnacht during which the feds banged on the door of everyone who contributed to the Edwards campaign and was associated with Fieger.

Testimony this good does not come by accident. Brochay, like a witness last week who asserted on cross-examination that he felt no pressure to make a contribution, was a trap waiting to spring. The Government helped set it.

Ouch.  No, ouch isn’t strong enough.  Brochay reached down the prosecutor’s throat and ripped his heart out.  There is no feeling of helplessness quite like your witness testifying that you are totally wrong and the other side is totally right, and that you were a deceitful, cruel animal in the process.

Of course, this was a set-up.  It’s an old lawyer trick that can only be played when a witness gets immunity and sucks the government into believing that he’s their boy.  Once on the stand, he can say anything he pleases, and there is nothing, absolutely nothing, the government can do to stop the words from flowing out of his mouth.  It’s a con game against the government.  Not because the witness’ testimony isn’t true, but because he’s conned the government into putting him on the stand so that he can promptly emasculate its case.

This game doesn’t happen very often.  It requires that all the stars align, and few prosecutors would allow that to happen.  It happened here.  I bet it has more to do with Fieger than Spence, since Fieger is sneakier and would have no reluctance to resorting to cheap tricks.  This would be beneath Spence, who relies instead on the power of his psychodramatic storytelling. 

Of course, there is nothing to stop the government from indicting its erstwhile witnesses for perjury after this trial is over.  The immunity goes to the underlying crime, not lying on the witness stand.  But then, who says they are lying?  Just because their testimony doesn’t agree with what the government wants them to say doesn’t prove perjury (except in the minds of United States Attorneys and District Court Judges). 

Fieger’s lawyers are no doubt prepared to take that risk.  If they have to take a perjury bullet for the boss, they will.  That’s loyalty.  And I bet their families won’t go hungry if they have to some time.  You see, the trick may be cheap, but it’s incredibly effective.  Geoffrey Fieger seems to be a very bottom line guy who appreciates effectiveness, no matter how its accomplished.