First to enter the ring Monday was Worthy, a blunt-talking prosecutor who has had a testy relationship with the mayor. In a 40-minute press conference that sounded like an opening argument, she invoked Teddy Roosevelt and Lady Justice to damn the mayor’s actions as a betrayal of the public trust. “This was not an investigation focused on lying about sex,” she said. “The public trust was violated.”
Last summer Kilpatrick and Beatty hotly denied that they had an affair in testimony in a whistleblower’s lawsuit brought by two former cops who had been ousted after investigating the mayor’s security detail, which could have uncovered the clandestine couple. After losing that trial and vowing to appeal, Kilpatrick suddenly reversed course in October, when an attorney for the whistleblowers revealed he’d obtained text messages that contradicted Kilpatrick’s and Beatty’s sworn denials. (A sample: “I’ve been dreaming all day about having you all to myself for three days,” Kilpatrick texted Beatty on his city-issued pager in 2002. “Relaxing, laughing, talking, sleeping and making love.”) Kilpatrick settled the lawsuit for $9 million in city money in exchange for destroying the text messages, but they came to light anyway when the Detroit Free Press obtained them in January.
Initially Kilpatrick was contrite, offering a public apology for unspecified transgressions in a live telecast from his church, with wife Carlita by his side. But more recently he has turned combative, invoking the N word during his state of the city speech this month as he condemned what he called a “lynch-mob mentality.” Now Kilpatrick is rolling out his high-powered defense attorney, Daniel Webb, who represented former Illinois governor George Ryan in a racketeering trial he lost last year. Webb wasted little time building on Kilpatrick’s assertion that he’s the target of a “hate-driven, bigoted assault.” Webb accused Worthy of “selective prosecution” because, he contends, there is no other example of charges brought against someone for perjury in a civil trial in Wayne County. “That certainly raises issues,” he said, “which I intend to pursue before the trial judge.”
Legal experts say the selective prosecution defense normally only applies to groups that have been discriminated against, like African-Americans or gays. Politicians aren’t normally considered such a group. Kilpatrick is African-American, but so too is Worthy. Barack Obama might be trying to elevate the national discussion on America’s racial divisions, but Kilpatrick has shown he’s willing to play to that deep divide in this metropolitan area, where 82 percent of the city’s population is black while an equal share of the suburbs is white. “If they need to play the race card for an acquittal or a hung jury, they will,” says Detroit criminal lawyer Jerome Sabbota. “As ugly as this has been, it’s going to get worse.”
The battle over Kilpatrick’s tabloid tale has caused a state of stasis in the city with the nation’s highest unemployment rate, one of America’s highest murder rates and schools that graduate just 32 percent their students. Those factors led Forbes magazine to recently name Detroit America’s most miserable city. But there is precious little focus on those issues while Textgate commands the headlines and the mayor’s attention. “This is a huge distraction,” said Detroit City Council President Ken Cockrel Jr., who would replace the mayor if he were convicted of any of the felony charges he faces. “And it appears this is going to be a long and bumpy ride for the city.”
Worthy, for her part, seemed to appeal to a sense of fair play as she laid out her case to the potential jury pool watching her live on every television station in Detroit. If all witnesses can’t be expected to tell the truth on the stand, she argued, how can she convince a kid to testify in a drive-by shooting or a whistleblower to stand up to a big corporation? “Even children understand that lying is wrong,” she said. “If a witness lies, innocent people can go to jail. People can literally get away with murder.” After reviewing more than 40,000 pages of documents—many of them text messages—and interviewing many witnesses, Worthy says she concluded, “The justice system was severely mocked and the public trust was trampled in this case.”
Worthy also discovered that documents had been destroyed and indicated that she is considering charges against other city officials, including city attorneys. The city’s top lawyer and a human resources official (who is also the mayor’s cousin) will be in court later this week to answer contempt charges for not responding to investigative subpoenas from Worthy. “This is beginning to sound more and more like Watergate,” said Councilwoman Sheila Cockrel, who voted with the 7-1 majority on the council last week in a nonbinding resolution calling for Kilpatrick to resign.
Just as Richard Nixon protected his tapes all those years ago, Kilpatrick is trying to take back his texts. Webb says he will challenge whether SkyTel, the company that provided pager and text service to Detroit, turned over those tapes legally in the whistleblower lawsuit. “I am as certain as I stand here that the initial production of those text messages was, in fact, illegal,” Webb said. “Under federal law, under the Stored Communications Act, those messages absolutely should not have been produced in civil litigation, and because of that everyone since then, including the country prosecutor, is clearly tainted.”
Worthy, however, contends she obtained the text messages lawfully. And at least one legal expert agrees with her. “Webb is saying that no one would have heard of these messages if they hadn’t appeared in the Free Press,” says Peter J. Henning, a law professor at Wayne State University in Detroit. “And he’s right, but so what?” The federal Stored Communications Act was created to provide privacy protection to electronic communications like e-mail that are held in the files of Internet service providers like AOL. The act, though, does not provide a constitutional protection like the Fourth Amendment’s prohibition against illegal search and seizure. “This is not an illegal search, and these texts are not the fruit of the poison tree,” says Henning. “They might have been improperly given to the Detroit Free Press, but I’m sure the prosecutor obtained these records properly.”
Ultimately a judge will decide whether the texts come in and if Worthy is guilty of selective prosecution. (Worthy, in a videotaped interview with the Free Press said of Webb’s allegation, “So I guess it’s OK to lie in a civil trial but it’s not OK in a criminal trial? That doesn’t make any sense.”) And a jury will decide if Kilpatrick and Beatty committed perjury and conspired to obstruct justice just to keep their alleged affair secret. But getting to trial will take months, or even a year, legal experts say. “This case won’t go to trial this year,” predicts Lawrence Dubin, a law professor at University of Detroit Mercy. “This case is not going to be on the fast track.” That means the Motown smackdown won’t end anytime soon. And in the process, a struggling city could go down for the count.
