Sunday, September 12, 2004
New trial, more twists
What impact will additional charges, a cooperating witness and a change of venue have this time around?
Nearly two years ago, a federal jury in Lynchburg could not agree on whether the way former National D-Day Memorial Foundation president Richard Burrow raised funds for the monument was criminal.
Now, Burrow is scheduled to stand trial for a second time in connection with his fund raising for the $25 million Bedford memorial. Jury selection is scheduled to begin Friday in Charlottesville.
It is a case in which the judge has said of the defendant that there is "great sentiment in the area that he should not be prosecuted." Some say Burrow was just trying to get the memorial built in time for the visit by President Bush and for World War II veterans to see before they die.
But it is also a case in which federal prosecutors contend that Burrow cheated banks and taxpayers out of millions of dollars in what they describe as fraudulent dealings that ultimately led the monument to bankruptcy.
Several factors have changed from the first trial to the second. It remains to be seen what impact those changes will have on Burrow's fate.
A "huge factor" that differentiates Burrow's second trial from the first is the cooperation of the foundation's former legal adviser, Louis Harrison, with federal prosecutors, said Roger Groot, a professor at Washington and Lee University law school.
In March 2003, when U.S. Attorney John Brownlee announced that he planned to seek new charges against Burrow, he also released a statement by Harrison in which Harrison implicated both himself and Burrow.
The statement said Burrow intentionally falsified documents to acquire $3.5 million in matching grants from the state to finance the monument. The Bedford lawyer advised the foundation from 1996 to 2000.
Harrison also said in the statement that he told Burrow he needed real pledges as collateral to get bank loans and state grants. And Harrison also said he improperly verified to a bank and the state that applications for the loans and grants were legal without ever finding out if the pledges actually existed.
Because of Harrison's cooperation, he avoided a felony wire fraud charge. As part of the agreement with prosecutors, he will be on probation for a year and have to pay a fine of $12,500. He has also had to report his actions to the Virginia State Bar. The matter is under investigation, Virginia State Bar counsel Barbara Williams said.
Harrison was not called to testify at Burrow's first trial. Part of Burrow's defense at his first trial was that the methods he used to get millions of dollars in bank loans and state grants were approved by Harrison.
Another factor in the second trial is the new charges Burrow faces, Groot said.
At the first trial, Burrow faced four charges: mail, wire, bank and loan application fraud. After a six-day trial, jurors split seven to five in favor of acquitting Burrow, and Senior U.S. District Judge James Turk declared a mistrial.
Then in January, federal prosecutors sought a new indictment in the case. A grand jury in Charlottesville indicted Burrow on 12 federal counts. Those charges included more fraud allegations, in addition to new perjury charges. The second trial is expected to last longer than the first, in part because of the new charges.
The new charges include allegations that Burrow misused a $100,000 pledge from the Richard S. Reynolds Foundation, based in Richmond. Prosecutors Patrick Hogeboom and Tom Bondurant argue that Burrow used the first $50,000 of the pledge for construction costs, when the Reynolds foundation donated the money to be used for part of an education center
They also argue that in order to secure a loan, Burrow misrepresented to a California bank that the Reynolds foundation planned to donate $150,000.
The charges Burrow faces also include allegations that he lied at his first trial.
Groot said the perjury charges would allow prosecutors to argue that not only did Burrow do something wrong, but that he also lied about it.
The indictment alleges that Burrow lied under oath when he testified about a pledge by Richmond philanthropist E.C. Robins and other challenge pledges. Challenge pledges are when donors agree to match donations made by other donors.
Prosecutors also argue that Burrow misrepresented a pledge that was supposed to come from the Veterans of Foreign Wars.
Burrow faces a maximum sentence of up to 250 years in prison and fines of up to $12 million on the new charges. Hogeboom and Bondurant did not return calls for comment on the case.
Defense attorneys John Lichtenstein, John Fishwick and Gregory Lyons had asked for the perjury charges to be tried separately. Though Turk has yet to rule on the perjury issue, he said in a pretrial hearing in August that he thinks it is unfair to Burrow to have the perjury charges based on Burrow's testimony from his first trial decided along with the fraud charges at his second trial.
Lichtenstein said, "Mr. Burrow, as he has been before, is absolutely committed to defending himself and looks forward to that opportunity."
Another factor that could influence the outcome of Burrow's second trial is the change in venue from Lynchburg to Charlottesville.
In the Lynchburg division of the federal court system, people had more of a connection to the D-Day memorial, even if the connection was remote, Groot said. To some jurors in that area, it might have seemed that "by attacking Burrow the government is somehow attacking the D-Day memorial itself or causing problems for it."
By contrast, in Charlottesville, "nobody up here has any direct connection with the memorial and the people in the case," said Charlottesville attorney Frederick Heblich.
Groot and Heblich both pointed out that the Charlottesville district includes not just the city of Charlottesville, where the University of Virginia is located. Charlottesville is one of seven divisions in the Western District of Virginia. The Charlottesville division also includes nine counties, stretching from Rappahannock County in the north to Nelson County in the southwest.
The population tends to include more professional and affluent people than other parts of the Western District, Heblich said. He also said they might be a little less conservative and more sophisticated, compared to other divisions in the district.
"Just because the university's here, you're probably likely to get people that have education and financial knowledge," Heblich said.
But Heblich, who did not comment specifically on the Burrow case, said it can be dangerous for a defendant to face a jury with too much specialized knowledge.
"I don't know that you really want anybody to understand it," Heblich said of complex issues such as fraud and medical malpractice. The lawyers' task is to break down complex issues into simple terms that jurors can understand, so they can then use their common sense to render a verdict, Heblich said.
Another wrinkle to the second trial is that prosecutors have said they plan to have an expert in fund-raising ethics testify. Defense attorneys in the case have said in court filings that they plan to counter with their own expert.
But even the judge has questioned the need for experts in the case.
At the August hearing, Turk said he didn't want to tell the lawyers how to try the case. But he added that "both sides seem to be making to me what ought to be simple complicated."See BURROW, 18BURROW: From 4 charges to 12FROM 1Judge James Turk has yet to rule on whether prosecutors can try Burrow on perjury charges as part of this trial.
THE BURROW TRIAL, ROUND TWO
what's the sameFormer National D-Day Memorial Foundation president Richard Burrow's second trial is scheduled to begin Friday. Here's what has changed from the first trial to the second trial.WHAT'S BEHIND THE CASE
The charges arise from how Burrow raised funds for the construction of the $25 million monument in Bedford.
First trial: Four charges: Wire, bank, mail, and loan application fraud.
Second trial: 12 charges: three counts of mail fraud, three counts of wire fraud, two counts of bank fraud, two counts of loan application fraud, two counts of perjury.
Why the difference: Prosecutors have said the new indictment is a mix of old allegations and new charges that have arisen from the first trial and their ongoing investigation of the case.
First trial: Jury deadlocked after three hours of deliberation. Jurors voted 7 to 5 in favor of acquittal.
New witness: The foundation's former lawyer will testify for the prosecution that Burrow intentionally falsified documents.
New venue: Judge granted prosecutors' request to move the trial based on publicity that has surrounded the case. Some think a jury there may not have the same emotional connection with the memorial that a Lynchburg jury did, potentially helping prosecutors.
First trial prosecutors: First Assistant U.S. Attorney Morgan Scott and Assistant U.S. Attorney Patrick Hogeboom.
Second trial prosecutors: Assistant U.S. Attorney Patrick Hogeboom and Assistant U.S. Attorney Tom Bondurant.
Defense attorneys for both trials: John Lichtenstein, John Fishwick, Gregory Lyons.
First trial: Six days.
Second trial: Ten weekdays have been set aside for the trial, from Sept. 17 to 30.Some people say Richard Burrow was just trying to get the National D-Day Memorial built in time for the visit by President Bush and for World War II veterans to see before they die.Some kind of cutline to go here that gives some meaning to the image used above. It was shot on March 3, 2001 when Burrows gave a media tour at the site, shot by Natalee Waters.Richard Burrow makes his way into Federal Court in Lynchburg, Virginia, Monday morning December 9, 2002. Burrow, the past executive director of the National D-Day Memorial Foundation, is now facing federal charges. He was using a crutch because of a recent injury to his Achilles tendon.Richard Burrow, executive director of the National D-Day Memorial Foundation, gives a media tour at the memorial recently.
Education: Graduated from Andrew Lewis High School in Salem and Virginia Tech.
Jobs: Worked as an engineer for Roanoke and was involved with downtown revitalization projects, including the City Market, Center in the Square and Elmwood Park. Then worked as the engineer for Explore Park for 10 years, before he was laid off in 1994 for budgetary reasons. Began work as president of the National D-Day Memorial Foundation in 1996.
Family: Married to Janet Burrow, president of the Jefferson Center.