Just over an hour-and-a-half into the seventh day of testimony in Gilbert Baker's bribery trial, Baker's attorneys rested their case Thursday morning, making it likely that the case will be in the hands of the jury today.
Baker, 64, is accused of bribing former Faulkner County Circuit Judge Mike Maggio to reduce a $5.2 million jury award against Greenbrier Nursing and Rehabilitation Center in 2013 in a lawsuit filed by the family of Martha Bull. Bull died two weeks after being admitted for a one-month rehabilitation stint at the center, which is owned by Michael Morton of Fort Smith. Maggio pleaded guilty to bribery in 2015 and was sentenced to 10 years in prison.
After questioning six witnesses -- including Baker's oldest son, Stephen -- in less than 90 minutes, Baker's defense team of Blake Hendrix and Annie Depper rested their case.
Stephen Baker, a deputy U.S. marshal in Memphis, testified that a saying his father often uses, "win, lose or draw," was texted to him by his father on the day the younger Baker was testing for a federal job. That phrase, which the elder Baker had sent to Maggio before the Bull verdict, was a way of telling the judge that he had Morton's support in his 2014 Court of Appeals race, "win, lose or draw," assistant U.S. attorneys Julie Peters and John Ray White said. They characterized the message as evidence that Baker was attempting to keep Maggio on board in the alleged bribery scheme.
Stephen Baker, 38, testified that he had often heard his father use the phrase and in February 2014, as he was in New Orleans for the final testing stages for a position with the federal Drug Enforcement Administration, he received the text, "Hope and pray you're okay. I'm so proud of you no matter what happens today win, lose or draw."
"Is that a common phrase with your dad?" Hendrix asked.
"It is," Baker replied.
"What did you interpret it to mean?"
"I took that to mean that regardless of what happened, if I passed, if I failed, if I came home and continued to look for another job or became a DEA agent that he would support me no matter what," Baker answered. "Unconditional love."
"Regardless of the outcome," Hendrix asked, "you have his support?"
"That's correct," Baker answered.
"Did you ever hear him say that in any other context," Hendrix asked, "to mean something else?"
"I haven't," Baker replied.
Susan McGehee, who worked as a court assistant for Maggio from 2000 until 2014, testified that she was in the courtroom throughout the trial of Bull vs. Greenbrier Nursing and Care Center, including on May 16, 2013, the day the jury announced its $5.2 million verdict.
"What was your reaction to that verdict?" asked Hendrix.
"I was surprised by the verdict," McGehee said.
McGehee said that when the court staff members met with Maggio after the verdict they were shocked at the amount. She said that later, as Maggio prepared to hear the defense motions to reduce or reverse the verdict, she saw no indication that there was any outside effort to sway Maggio in one direction or another.
She testified that on May 20, 2014, a hearing was held in response to a juror who contacted Maggio about the verdict, concerned that the amount was excessive.
"Did that hearing result in a mistrial or any ruling in favor of Michael Morton?" Hendrix asked.
"Eventually, there was a remittitur," she replied. "It was much later."
Lisa Sick, an attorney who worked as a law clerk in Maggio's office at the time of the trial, was next to testify, but because Sick was delayed for several minutes getting through courthouse security, Chief U.S. District Judge D. Price Marshall Jr. tried to lighten the moment.
"Do y'all know the patient song?" he asked the jurors. "I made it up when my daughters were small and I used to sing it to them. It didn't always work but you know, you just kind of need to sing the patient song to yourselves."
Once on the stand, Sick testified that she, too, was surprised at the size of the award.
"That was a large amount of money," she said. "That was a lot. I'd never seen that before."
"Emotionally, how did you feel?" asked Hendrix.
"I think I had said, 'OMG,' like. that's a lot," she said.
"To?" Hendrix prompted.
"I said that to the judge," Sick replied, clarifying that she had texted her reaction to Maggio. "OMG."
"What does that mean?" asked Hendrix.
"Oh my gosh," Sick answered. "I think that's what [the whole staff] thought, that it was a lot, not what we were expecting."
Sick said that about a month later, on June 17, 2013, the defense filed motions attempting to get the verdict reversed or tossed by asking for a new trial, a judgment notwithstanding the verdict, or a remittitur to reduce the amount of the award. Marshall explained to the jury that a judgment not withstanding the verdict allows the trial judge to set the jury's verdict aside and to decide the issue as a matter of law.
"A motion for a new trial is a request for a do-over," Marshall said. "You start all over again, pick a new jury and do it all over again. You know what a remittitur is, a reduction of the verdict to bring the award in line with what the judge's view of the proof is."
At the time of the ruling, Sick sent a text message to Maggio indicating that she favored the judgment not withstanding the verdict ruling, but she said she did not recall for sure if she was serious.
"If I said that in earnest or in sarcasm, I do not recall," she said.
"Of the three options, Maggio granted the remittitur, is that correct?" asked Hendrix.
"That is correct," Sick replied.
"Judgment not withstanding the verdict would have been the most beneficial to the defendant, am I right?" Hendrix continued.
"That's correct."
"Second most beneficial would have been a do-over," Hendrix said, "a new trial. Is that fair?"
"Yeah," Sick answered.
Stacy Hurst, secretary of the Arkansas Department of Parks, Heritage and Tourism, testified that during her unsuccessful bid for the state House of Representatives in 2013, Baker raised between $50,000 and $60,000 for her campaign. She said that she met Baker in 2013 as she was considering filing to run.
"Gilbert was one of the people who recruited me to run," Hurst said.
She said of all the money raised, probably $20,000 came from the nursing-home industry.
"Ultimately," asked Depper, "did you receive money from the PACs that are at issue in this case?"
"I did," Hurst answered, but said she later decided to return the PAC donations once the negative news reports began circulating. "I made the decision at the time in my campaign that it was best to avoid that controversy."
White, on cross-examination, asked Hurst if any of the money that was returned was part of the $20,000 she had received from nursing homes.
"I don't believe so," she replied. "That was different."
"Your Honor," Hendrix announced, after less than 90 minutes of testimony, "the defense rests."
After the jury returned from an extended lunch break, Marshall released the 12 jurors and two alternates until 10:30 this morning, at which time he will instruct the jury and closing statements from the government and defense attorneys will be presented.
In a lighter moment, before the jury was released, Marshall was given a note signed by all 12 jurors and the two alternates with a request.
"Oh my," the judge said as he read the note to himself. "Ya'll are going to cure me from talking at all during trial, ladies and gentlemen of the jury."
Then, Marshall read the note to the courtroom.
"Judge Marshall," he read, "all jurors would like for you to sing the patient song."
As the courtroom broke into laughter, Marshall continued, "Thank you jurors 1 through 12, and 13 and 14. So it is unanimous. I'm not very good at singing but I'll try."
As Marshall explained the song is sung to the tune of "Are You Sleeping," a hush fell over the courtroom as he began to sing in a clear tenor voice.
"I am patient, I am patient, patient me, patient me. P-A-T-I-E-N-T, P-A-T-I-E-N-T, patient me," the judge sang, as applause broke out around the courtroom.
At that, Marshall dismissed the jury with the admonishment to avoid researching, talking about, or even thinking about the case before deliberations.
"The temptation, particularly tonight, will be to start making up your minds," he said. "Don't do that."
The case is expected to go the jury today by mid-to-late afternoon.