Noe defense tactic may backfire, experts say

10/23/2006

Through the first week of testimony in the Tom Noe trial, his defense team has hammered away at the sweeping authority the Ohio Bureau of Workers' Compensation gave Noe when it sent $50 million his way.

Noe's attorneys have implied that any of the money that was transferred from the state's rare-coin funds to Noe was a permitted loan or advance. Prosecutors have called it embezzlement.

Defense attorneys John Mitchell and Bill Wilkinson have portrayed the bureau's contract with Noe as "dumb" and asked several witnesses if they read it.

"Did you know advance profits were allowed?" Mr. Wilkinson asked Tom Peters, the former chief financial officer of Noe's business, Vintage Coins and Collectibles. Mr. Peters said he did not.

If the defense strategy is to blame the contract, local defense attorneys say it may backfire. They asked, as prosecutors have, if the contract gave Noe the power to steal.

"If that's the only defense, I'd be a little nervous. The jury's not going to buy it," said Henry Herschel, the chief public defender in Lucas County.

Three to five weeks remain in the trial of Noe on 44 felony counts. Prosecutors accuse him of taking more than $2 million from the $50 million in coin funds he controlled for the bureau.

So far, more than a dozen witnesses have testified. Most have been either law enforcement officials or former Vintage Coin employees. At almost every opportunity, Mr. Wilkinson and Mr. Mitchell ask if the witness is aware of the bureau's contract. None are.

But Mr. Herschel challenged that tactic. He talked about a hypothetical situation in which he would sign a contract to give a stockbroker the authority to invest $50,000 as he saw fit.

"That doesn't mean he can take my money and buy himself a car or a house," Mr. Herschel said. "It doesn't make any sense."

During more than four hours on the witness stand, an internal auditor for the bureau confirmed that Noe documented many of the questionable - yet allowed - loans and advances he made to others. Those same financial records, reviewed by The Blade, do not show corresponding activity between the coin funds and Noe.

That could be a problem, said local defense attorney David Klucas.

"If there are loans to other folks that are documented and there are loans to Mr. Noe that are undocumented, that looks bad," Mr. Klucas said.

Both Mr. Klucas and Mr. Herschel, who were asked to comment on the case by The Blade, said the defense has a potentially far better strategy in play.

Call it the Tim LaPointe strategy.

Mr. Wilkinson and Mr. Mitchell have gotten almost every former Vintage Coins employee to point out that Mr. LaPointe was the day-to-day manager of the business who controlled the computer inventory.

Defense attorneys have also noted that he is a co-defendant who has been charged with similar crimes and has a "cooperation agreement" with prosecutors.

Mr. LaPointe has pleaded not guilty to engaging in a pattern of corrupt activity and six counts of tampering with records. His agreement with prosecutors is vague - it states that prosecutors "may recommend" leniency at his sentencing.

However, local attorneys say that co-defendants typically testify after they've admitted guilt and before sentencing.

Without a guilty plea, it's possible that the charges against Mr. LaPointe may be dropped altogether, they say.

"This is really open-ended," Mr. Klucas said. "That strikes me as a far more useful avenue of defense."

Several attorneys have said the arrangement with Mr. LaPointe is odd. Mr. Herschel and Mr. Klucas said they would both exploit the deal with him.

"I think the ultimate deal that is hanging out there may be suspect and it would certainly go to his credibility," Mr. Herschel said.

Indeed, Mr. Wilkinson during his opening statement alluded to the deal and questioned Mr. LaPointe's motivation for testifying. He called him "objectively unreliable" as a witness because his performance at the trial will determine his sentence.

The trial is expected to resume tomorrow. Judge Thomas Osowik is attending the funeral today of his mother, Helen, who died Friday.

Contact Mike Wilkinson at: mwilkinson@theblade.com or 419-724-6104.