By TOM LAUE: A statehouse reporter for United Press International, he has covered politics and government in the city of Springfield for the past five years.
Both federal and state trials took place in Springfield. The charges, though technically not the same, focused on misuse of public funds by a state legislator. Nearly the same witnesses testified, and almost identical evidence was produced in both trials. But the mode of jury selection was not the same. And the tactics of the prosecutors were as 'different as night and day'
HOW DID former GOP state Rep. Web her Borchersf R.. Decatur) beat federal charges arising from misuse of his legislative expense allowance? And how was he convicted three months later on state charges based on the same circumstances'? The reasons cast light on the whole complex process of American jurisprudence.
To begin with. both trials were held in Springfield- Borchers used the same lawyer and opted each time for jury trials. Although the charges were technically different (mail fraud and conspiracy in U.S. District Court, theft and official misconduct in Illinois' 7th Judicial Circuit Court, Sangamon County). both the federal prosecutor, Donald B, Mackay, and the state prosecutor. Wayne Golomb, trotted out nearly the same witnesses and produced almost identical evidence in arguing their cases. The defense did likewise.
By the time the state trial was half over. both Golomb, who watched most of the federal trial — wisely it seems — and defense attorney Glenn O. Fuller joked about the repetitious testimony. They said it was as exciting as watching a rerun of a class B movie. Yet Fuller knew when the circuit court jury retired to weigh Borchers' fate that his client was in trouble and might not emerge unscathed as he did in federal court. Minutes before the jury returned its verdict. Fuller turned thumbs down, signifying "guilty." He had been right.
How did It happen? This is the tale of two trials.
A remarkable story
When Borchers, 69, was accused in
November 1974 by a federal grand jury
of illegally tapping his legislative
allowance, statehouse reporters familiar
with the eccentric land-fill operator
from Decatur were surprised. They
wondered why he would channel $1,650
of state funds into what he claimed was
an investigation of radical groups when
estimates of his personal fortune
approached $ 1 million. They didn't have to
wait long to find out. Unique in all he
does, Borchers patiently returned every
reporter's call (most indictees shun the
press) and presented a remarkable story.
It was true, Borchers said, he got the
money by authorizing payment to a
colleague's secretary for work she never
did. When the state paid her (she was a
young travel agency worker whose
knowledge of financial affairs can most
charitably be described as minimal), she
dutifully turned the money over — no
questions asked — to her boss, former
GOP state Rep. Christian Homeier III
of Springfield. Homeier, in turn, gave
Borchers the money.
The crux of the case
Though this case was identical on the
surface to other cases in which law-
makers were caught in expense-account
kickback schemes, Borchers claimed his
case was vastly different. Whereas
others bilked the state out of sheer greed
and put the money in their own pockets,
Borchers claimed he did it to reimburse
himself for out-of-pocket costs he
incurred to pay a young black man who
served as an undercover campus spy
during the turbulent late 1960's and
early 1970's when student unrest and
rioting were rampant.
But why not simply pay the informant, who called himself Dan Jones, directly with state funds? Why involve the secretary? Because his spy, Borchers said. had infiltrated dangerous radical groups and if his identity were known, his life might be endangered. Jones therefore refused to give his social security number, which is required for payment by the state. Bore hers testified to this effect in circuit court. In characterizing Jones' dilemma, Bor-
April 1976 / Illinois Issues / 13
Lawyer said Borchers' 'persistent love of country' led to misuse of expense account . . . 'but he never intended to cheat anyone'
chers stated: "The least they would do is cut off his balls." At this point in the testimony. Borchers shot a mischievous glance at the jury. (Borchers is known (or his Casey Stengel-type speeches in the Illinois House, where he often bombarded his listeners with repeated sexual references.)
There was only one troublesome hitch in all this. Try as he might, Borchers was simply unable to locate Jones to vouch for his story. Thus it was that Borchers the old soldier who justified his actions by saying, "When your house is on fire, you don't care where you get water: from the well, the river or the cesspool" stood accused in federal Judge Harlington Wood's courtroom of conspiring with Homeier to gyp the state of $1,650 via the U.S. mail.
Contrast of charges and jurors
The very charges may have helped
Borchers in his federal trial. The
government argued that Borchers
conspired with Homeier to cheat the state
out of the money and did it through the
mail. Mackay had to use these charges,
which are relatively difficult to understand,
because the federal government
simply had no more direct accusations
in us arsenal. Golomb, by contrast,
charged Borchers with two offenses
which are readily understood: theft
defined as unauthorized control over
state property and official misconduct in
office Mackay had to get at
Borchers indirectly because
law specifically because no federal
law specifically prohibits stealing state
money. There are clear laws
against it at the state level, against it at
however.
The jurors in Borchers' federal trial were drawn from all over the west-central section of Illinois making Southern District. This help Borchers in several way jurors came from the Macon County area he represented. They knew Borchers as a no-nonsense individual who speaks his mind, and most of what he said they liked. He once suggested blacks are genetically inferior to whites because of ear wax, and argued hotly against the Equal Rights Amendment because he did not wish to see men and women "squat together over open latrines like in the Russian army." Wagging a finger and speaking in his typically frantic way, Borchers once told fellow House members that allowing a welfare recipient to serve on the Legislative Advisory Committee on Public Aid would be like "putting the rats in charge of the cheese." Some of Borchers' character witnesses said he has a "bulldog tendency" and would "go to any lawful extreme" to get what he wants. Generally, however, they approved of his conservative law-and- order stands. During the trial it became apparent that the federal court jury foreman reflected this attitude. After Borchers was set free, the foreman said Borchers shouldn't have done what he did, but that he didn't really mean any harm.
The jury in the state trial, in contrast, came only from Sangamon County. What each of them thought of Borchers' political philosophy is, of course, unknown. But his brash brand of politics, when put briefly on display in Sangamon County circuit court, did not seem to impress them as much as it did his own former constituents from Macon County. Another likely difference between the two panels is the amount of attention paid to political corruption. The largely rural federal court jury probably heard and read less about sometimes complicated governmental shenanigans than did their state court counterparts from Springfield and nearby towns.
The judges and jury selection
Borchers also had the edge in federal
court during jury selection. Judge Wood
took almost no part, leaving most of the
questioning of would-be jurors to the
lawyers. This enabled Fuller to ask as
many questions as he wanted to
determine if someone would help or hinder
Borchers. In state court, however. Judge
Richard Mills exercised his option of
asking all questions.
Though Fuller and Golomb were allowed to suggest questions (and Mills used some of them). Fuller was not able to screen the jurors as thoroughly as he would have liked. Later, in a futile appeal for a new trial, Fuller said this procedure prevented Borchers from getting a fair and impartial trial. Mills demurred, saying jury selection would be absurd if lawyers were allowed to question jurors indefinitely. "We'd have to ask where they saw the TV news, in the living room or the den? Did they see the full broadcast? Were they distracted? Did they leave in the middle for a beer?" On balance, Mills said, nearly every juror means it when he says he will judge the case only on evidence presented in the courtroom.
How crucial these differences injury complexion and selection were is difficult to judge. It is clear, however, that the tactics of Mackay and Golomb — different as night and day— had an impact.
Borchers on the stand
Mackay, faced with an irrepressible
Borchers, chose to let him spin his entire
yarn, however irrelevant to the charges
against him. Thus, Borchers bragged
about his war record and paraded a
dozen character witnesses to the stand
to tell of his dismay regarding civil
disorder and how his entire life was
devoted to patriotic deeds. It was this
persistent love of country, Fuller said,
that drove his client to misuse his
expense fund. Borchers did the wrong
thing. Fuller admitted, but he never
intended to cheat anyone.
Apparently in an effort to offset this flood of patriotic testimony, Mackay let Borchers run wild. Borchers once told Mackay he wasn't doing his job and another time, when Mackay asked Borchers to describe exactly what transpired on the House floor when Homeier gave him his money, Borchers replied, "I put it in my pocket. I wouldn't throw it on the floor." Again, the impish grin crossed his face, and the flippant, almost arrogant answer left the jury laughing. Yet Mackay did not admonish him. Mackay would not confirm reporters' suspicions that his strategy was to give Borchers plenty of time to talk and plenty of rope as well. In any event, if it was Mackay's plan to let Borchers hang himself with his own garrulous speeches, it backfired. After acquitting Borchers, federal jurors said he struck them as being quite zany but hardly the criminal type. This impression was created in large part because Borchers was not restrained.
14 / April 1976 / Illinois Issues
It was a different story in state court. Golomb succeeded in limiting most of the character witness testimony to a mere statement that they had known Borchers at a certain time and under certain circumstances. All the glowing details permitted in federal court were barred by Judge Mills. Golomb also short-circuited some of Borchers' wisecracks from the witness stand. After Borchers said he learned from Jones of assassination plots against former Gov. Richard B. Ogilvie and Chicago Mayor Richard J. Daley, Golomb asked if Borchers ever alerted any police officials. Borchers said he did not because he didn't think the threats were serious. "You didn't think threats against top political figures were serious?" asked Golomb. "I haven't heard of any assassinations," retorted Borchers. "Well, wouldn't it be a little late by that time?" replied Golomb. Jurors, who had begun to chuckle at Borchers' remark, suddenly stopped laughing. Judge Mills helped hold Borchers in check also, admonishing him for using unnecessary profanity.
The closing arguments
The greatest difference in the two
trials came in the closing arguments of
the prosecuting attorneys. In the federal
trial Mackay seemed to accept the
existence of the mysterious Dan Jones.
Golomb appeared to do the same in the
state trial, even though there was
nothing to prove it except Borchers'
word. But suddenly, Golomb strode to
and fro before the jury box, waving his
arms a la Petrocelli. "There is no Dan
Jones," he said. "Ifs just a figment of
Borchers' imagination." Golomb then
fired off three devastating questions: (1)
If Borchers was so worried about Jones'
safety, why did he do nothing to hide the
secretary's identity? Apparently he was
willing to jeopardize her by using her
real name on state vouchers and
describing her as a campus investigator. (2)
Why didn't Borchers try to trace Jones'
social security number through his license
plates? They often met, Borchers
said, in Jones' car to exchange information.
(3) Why did Borchers take notes
while Jones read to him from his own
notebook? Wouldn't it be safer and simpler
f Jones just handed his notes over
to Borchers? What would happen to
Jones if radicals caught him with damaging notes?
The verdict
The jury mulled these questions more
than four hours. When they returned,
the old soldier was bloodied but unbowed. "This guilty verdict," Borchers
said, "is no worse than those German
tanks."
On January 20, 1976, Judge Mills turned down Borchers' request for a new trial and on January 28 sentenced him to six months of weekends in the Sangamon County Jail, five years probation and a $5,000 fine. Mills also imposed a gag order on Borchers, prohibiting personal public discussion of the case for five years, but a few days later he suspended the gag order.
In his final arguments before sentencing, prosecutor Golomb called Borchers a "fraud, thief and a crook and con man of the greatest degree." He said that he could not "recommend probation for Webber Borchers when teenagers get jail sentences for armed robberies. What would they think of the system?"
Judge Mills said that "the thing that sets your case apart from any person who commits a crime is that you are a public servant. You violated your personal trust and the public trust." Borchers listened to the statements and then hobbled off, carrying war wounds, French medals and, despite everything, the belief he was right.
15 / April 1976 / Illinois Issues