Victor Mercado's Surprise Plea Could Hurt Kwame and Co-Defendants

November 05, 2012, 8:23 PM by  Allan Lengel


A surprise guilty plea on Monday by former water department director Victor Mercado in mid-trial could do some serious harm to his co-defendants in the Kwame Kilpatrick public corruption trial, particularly the ex-mayor. 

“It’s more likely than not to have a negative impact on the jury’s feelings toward the other defendants,” said defense attorney James W. Burdick, who does not represent any defendant in the case. “I think could say,  'ahh, they must all be guilty.'”

Burdick said the judge will tell the jurors that Mercado is no longer part of the trial, but won’t say why, and will remind them not to read into his absence when judging the other defendants.

But Burdick, a former state prosecutor, said it’s almost impossible these days with the omnipresent media -- be it TV, radio or newspapers -- for jurors not to find out that Mercado pleaded guilty.

“The jurors always read the paper, watch TV," Burdick said. "The family is watching TV. They’ll all know.”

Mercado surprised the public on Monday morning when he entered a plea before U.S. District Judge Nancy G. Edmunds on one count of conspiracy.  His plea does not include an agreement to cooperate with the feds, and reportedly, it is unlikely he will testify.

Of the four defendants in the case -- Kilpatrick, the ex-mayor's close friend, contractor Bobby Ferguson, and father Bernard Kilpatrick -- courthouse observers thought that Mercardo, 61, of Stuart, Fla., had the best chance of beating the charges.

Unlike his three co-defendants, the government never accused Mercado of taking kickbacks or bribes. Instead, the government claimed Mercado caved to pressure from Kilpatrick to help rig city contracts for Ferguson so he could keep his lucrative paying job as director of the Detroit Water and Sewerage Department (DWSD).  The government claims Ferguson kicked back money from lucrative contracts to Kilpatrick.

In the plea agreement Mercado signed, the government wrote: 

Mercado -- at the direction of Kilpatrick and his associates -- took steps to help Ferguson receive a large portion of contracts, subcontracts or payments for DWSD business.  These steps included influencing the procurement process to Ferguson's advantage, as well as directing a bidder to include Ferguson on a DWSD contract in order to receive favorable consideration on the bid. Mercado took these steps as a result of regular and consistent pressure from former Mayor Kilpatrick and his staff to help Ferguson obtain DWSD business regardless of procurement policies, rules and regulations. Mercado tried to avoid this pressure, but from time to time he influenced the process to Ferguson's benefit in order to pacify and placate the former Mayor.

In a press release issued Monday after Mercado pleaded guilty, the U.S. Attorney’s Office in Detroit said; 

According to the terms of the plea agreement, the sentence will not exceed 18 months, due to mitigating circumstances. In particular, Mercado took the actions set forth above because of duress, under circumstances not amounting to a complete 

After the plea, one of Mercado’s attorneys Martin Crandall, on Monday was quoted in the Detroit Free Press as saying: “The indictment itself was bombastic. This is the right decision at the right time.”

Jim Thomas, Kilpatrick's attorney, played down any impact Mercado's plea may have, and was quoted in the Freep as saying: “The empty chair will be something that the jury will not be able to consider.”

Former Assistant U.S. Attorney Brian Legghio, a defense attorney not involved in the case,  concurs with Burdick, saying the absence of Mercado is likely to raise issues for the jurors.

“I imagine these are intelligent jurors and they’re going to make the reasonable deduction, one of the co-defendants is inexplicably absent from the table along with two the defense attorneys," he said. "From a psychological standpoint it could be damaging for the defense.”

Legghio also said it's not likely that prosecutors will call Mercado as a witness, saying it could prove too prejudicial to the defendants to see him leave the defense table and take the witness stand.

"That could create an argument for appeal," he said. 

The trial has been on hold since last week when Gerald Evelyn, one of three attorney's for Bobby Ferguson -- fell ill in the courtroom and left the courthouse by ambulance. One report suggested he may have been suffering from exhaustion.

Court may resume on Nov. 13.

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