Attorneys for indicted State Auditor Troy Kelley on Monday challenged the core of the federal government’s theft case through the expert testimony of a Seattle contract lawyer, who asserted the case could have been handled as a civil matter.
TACOMA — Attorneys for State Auditor Troy Kelley on Monday challenged the core of the federal government’s theft case through the expert testimony of a Seattle contract lawyer, who asserted the case could have been handled as a civil matter.
James Savitt, a partner in the firm Savitt Bruce & Willey, was one of two key witnesses the defense is relying on to sow seeds of doubt in the minds of the 12 jurors who are expected to begin deliberations Wednesday. .
The government has alleged that Kelley’s failure to refund excess fees to homebuyers amounts to theft, but Savitt said he’s never seen a case based on a contract prosecuted as a crime. Moreover, he said contracts between Kelley’s real-estate reconveyance company, Post Closing Department, and escrow companies Fidelity and Old Republic Title were “ambiguous” and open to interpretation.
However, on cross-examination by Assistant U.S. Attorney Andrew Friedman, Savitt agreed that both contracts “contemplated” that Post Closing Department would make refunds where they were owed. Savitt said the ambiguity arises because the contracts do not define key terms or spell out when refunds would be required.
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The other key witness, Joseph Dawson, the senior partner in a Seattle accounting firm, Dawson & Gerbic, on Friday disputed the government’s assertion that Kelley was trying to hide money. Dawson defended Kelley’s accounting methods and his decision to withhold paying taxes on fees he was collecting through Post Closing.
The defense is expected to complete its case Tuesday, and prosecutors have said they may call one rebuttal witness.
On Tuesday morning, U.S. District Judge Ronald Leighton said he will send the jury home after the rebuttal witness. Closing arguments won’t begin until Wednesday morning.
In 19 days of at-times numbing financial testimony, spread out over six weeks, federal prosecutors have dissected Kelley’s business dealings, attempting to show how he kept nearly $3 million in real-estate transaction fees that should have been returned to customers of Post Closing Department during the cusp of the real-estate boom.
The seven-man, five-woman jury has heard more than 100 witnesses and has delved into the minutiae of real-estate reconveyance transactions and tax law. Thousands of documents have been entered as exhibits.
Building the case has been a meticulous process for prosecutors, made harder by a relentless assault by Kelley’s defense attorneys, who have challenged every witness and every premise the case is built on.
Kelley declined to take the stand in his own defense.
The Democrat and former legislator is charged in a 16-count indictment alleging theft, tax evasion and money laundering. He is the first state official indicted while in office in nearly 40 years. The most serious charge, money laundering, carries a prison sentence of up to 20 years.
Damaging testimony against Kelley came from his longtime friend and colleague Jason Jerue, who was granted immunity by prosecutors. He was Kelley’s right-hand man at Post Closing Department, and later was hired by Kelley to work for the Auditor’s Office from his California home.
Jerue said Kelley ordered him to falsify spreadsheets showing Post Closing Department was sending refund checks to the customers of the escrow companies that had hired Kelley’s firm.
For every real-estate transaction, the escrow company collected between $120 and $140 to pay for a variety of clerks’ fees and other expenses. That money was given to Kelley, who agreed to process every transaction for $15 or $20, depending on the company.
Officials from the escrow companies said Kelley had agreed to return any leftover money to the customers. Kelley has disputed that, saying other costs were often involved.
Jerue said Kelley told him to mail checks shortly after class-action lawsuits were filed against several escrow companies over reconveyance fees.
Jerue, who faces a separate state investigation into his off-site employment by Kelley at the Auditor’s Office, faced a withering cross-examination by Kelley’s attorneys, who caught him in several discrepancies and questioned his credibility and honesty.
After being questioned about having an extramarital affair with his pregnant wife’s doctor while in Seattle, Jerue groaned and begged defense attorney Patty Eakes not to ask about it. Jerue told the defense he was a “reluctant witness” against Kelley, whom Jerue described as his “good friend,” and was on the stand to avoid prosecution himself.
When Jerue was excused after nearly two days of grueling testimony, a sympathetic U.S. District Judge Ronald Leighton suggested he “run, don’t walk” out of the courtroom.