Major mistake: Jimmy Dimora's defense attorney says jury should return 'guilty' verdict

AKRON, Ohio - Jimmy Dimora's defense attorney made a major flub in his closing argument in federal court. He said, "I think you'll be returning a verdict of ‘guilty' on each and every one of these counts."

Defense attorney Bill Whitaker did not appear to realize what he said until he headed back to the table where Dimora was sitting. As he neared Dimora's table, he turned to the jury and said, "I mean, not guilty."

Whitaker also made other mistakes, such as confusing names of restaurants. At one point, he whispered to his fellow defense counsel, "What's the next one?" when he seemed to lose his place.

The crux of Whitaker's closing argument was that Dimora is a victim of dishonest men who ran criminal enterprises, who are liars, and who cut a deal with federal prosecutors for reduced sentences.

Whitaker showed pictures of Dimora in Vegas with co-defendant Michael Gabor.

"We're going to talk about behavior that was embarrassing, behavior that was wrong, but behavior that was not criminal," Whitaker said.

One picture the jury already had seen was of the defendants bare-chested at Bare Pool at The Mirage Hotel in Las Vegas.

"Not a pretty picture," Whitaker said. "But not a criminal conspiracy. Not a violation of the Hobbs Act. Not quid pro quo."

Whitaker took apart the testimony of two of the government's star witnesses – former auditor Frank Russo, and former Parma school board member and engineer's employee, J. Kevin Kelley. Whitaker argued Russo was crafty enough to arrange well over $1 million in kickbacks, while Kelley was crafty enough to arrange hundreds of thousands in kickbacks.

The jury saw slide that said "Jobs Sold" with Russo's picture. It listed several people who paid Russo for their jobs at the auditor's office. Whitaker rhetorically asked what role Dimora played in selling jobs in the auditor's office. "Zero, zero, none," Whitaker said.

"Frank Russo is testifying for a reason," Whitaker said as he paced before the jury, gesturing with his hands. "He's trying to avoid a 22 year jail sentence. He's working very hard to avoid it."

Whitaker also said the same of J. Kevin Kelley – that Kelley was trying to reduce his sentence after making a deal with federal prosecutors.

"The real measure of Kevin Kelley is the way he ripped off the Ohio retirement system," Whitaker said. "The taxpayers are paying him $4,000 a month to sit in the sun in Florida."

Whitaker argued Kelley applied for mental disability payments when he realized he would have to resign from the engineer's office the day he entered a plea to federal prosecutors. Kelley had two cars, three boats, two houses and a gambling habit that caused him to sometimes loose $10,000 in a night, Whitaker told the jury.

Despite the out-of-town trips, gambling parties and dining out, Whitaker said there was "not a shred of evidence that (Dimora) voted for a contract that wasn't the low bidder, or staff recommended."

Whitaker did not mention Dimora's home improvements, tax returns or the prostitutes that came up several times during seven weeks of testimony.

Whitaker said Dimora's been vilified by former friends who cut deals with the government, and by the media. He said the jury has the duty to examine what he called lies by the former friends who testified against Dimora. Whitaker told the jury they have the power to prevent "somebody being wrongfully convicted."

Whitaker's daughter, attorney Andrea Whitaker, was continuing the closing argument with specific sheets of evidence referenced. Closings are expected to take the rest of the afternoon.

The jury could get the case by Thursday.

Dimora and co-defendant Michael Gabor have maintained their innocence on all federal charges.

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