Michael Smerconish: Fumo gets squeezed

WITH the presentation of their case winding down, are the feds trying to smoke out ex-state Sen. Vince Fumo and get him to testify on his own behalf?

That's what I'm wondering in light of the prosecution's use of an interview I did with Fumo nearly five years ago.

In November 2003, the Inquirer launched a series of stories on the manner in which Fumo had steered funding to a non-profit called Citizens Alliance for Better Neighborhoods.

On March 17, 2004, the Inquirer ran a story headlined "FBI probes Fumo's use of yacht." The gist was that Fumo, a board member of the Independence Seaport Museum, had used the museum's two yachts without paying, and abused his position.

I invited Fumo to respond on my radio program, and he agreed to a March 19 interview.

It was vintage Fumo: unmuzzled and on the offensive. He told me the yacht named the Principia was a historic vessel "used by the museum and the board for fundraising efforts" in which he played a role. "All of the sudden, it's a major story. I mean, if the Kimmel Center is looking to wine and dine you, they will give you free tickets to the Kimmel Center," he said.

Our conversation continued:

Smerconish: It sounds like you're saying this is a perk that goes with being on the board. I assume you don't get paid to be on the board.

Fumo: No, I don't get paid . . .

Smerconish: So this is a perk that goes with being on the board. And when I use it, sometimes I'm using it related to the board to raise money. Is that what you're telling me?

Fumo: I think it's a fair characterization. And you have to understand, they make it look like I live on this thing.

When I asked Fumo whether he paid when he used the yacht, he was evasive: "It depends on the circumstances, and I'm not going to get too much further into that, what I do with my private money and what I do with my private life.

"I mean, I give a lot of contributions . . . anonymously because I don't want people bugging me. So, you know, there's a lot of things going in my life."

Audio of that exchange was played at trial last week. Why did the prosecution want jurors to hear it? I asked George Parry, an ex-federal and state prosecutor with 20 years' experience with grand juries.

Parry explained that Fumo's attorney conceded in his opening statement that Fumo had used the yachts for free, while also claiming that Fumo's guests were powerful people whom he hoped to interest in supporting the museum. The trips, defense counsel said, were approved by the museum president.

But that's not what Fumo had told me. When I specifically asked if he'd paid for using the yacht, he avoided the question and offered a response that I interpreted as saying the cost of using the yacht had been covered by his charitable giving.

That doesn't jibe with the testimony of the FBI agent who took the stand the same day prosecutors aired the interview in court. She reviewed the museum's books and found no record of any contribution from Fumo.

Confusing? Well, maybe there is a simpler explanation.

The playing of the audio ups the pressure on Fumo to testify. The reality, Parry said, is that "a jury in a criminal case always wants and expects to hear from the defendant and will hold it against a defendant if he does not take the stand.

"In this case, the audio of Fumo only serves to heighten the jurors' expectation that if Fumo has an innocent explanation, he will tell them from the witness stand and subject himself to cross-examination."

In other words, by playing the tapes, the prosecutors may have thrown down the gauntlet.

Fumo can take the stand and explain himself under oath, or risk leaving the jury to wonder why he had been willing to discuss the matter on the radio, but not in a federal courtroom. *

Listen to Michael Smerconish weekdays 5-9 a.m. on the Big Talker, 1210/AM.