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Defense to jury: 'You have an opportunity to end a created nightmare'

ALLENTOWN, Pa. - During his closing arguments in the Allentown corruption trial, defense attorney Jack McMahon asked the question he’s been dying to ask for weeks: where was Michael Fleck?

McMahon assailed the prosecution for not calling Mayor Ed Pawlowski’s former campaign manager to testify, the witness he called the linchpin to the government’s entire pay-to-play trial. Fleck has been painted at the inner-most part of the mayor’s circle, the person who knew the mayor inside and out, knew the inner workings of his campaign and was considered a close friend.

“And you did not hear from him,” McMahon said. “The government did not call him.”

The prosecution and defense made their closing arguments Tuesday in the federal bribery and corruption trial in which Pawlowski stands accused of trading favors and city contracts in exchange for campaign donations.

Prosecutors allege co-defendant Scott Allinson, an attorney with the firm Norris McLaughlin, conspired to generate campaign donations for the mayor in exchange for funneling city legal work to the firm for which he’d get credit.

The prosecution will offer its rebuttal to the defense’s closing arguments beginning at 8:30 a.m. Wednesday. U.S. District Judge Juan R. Sanchez said his instructions to the jury could take up to 90 minutes, and that jurors could have the case sometime before lunch.

Asst. U.S. Attorney Michelle Morgan made closing arguments Tuesday morning followed by Allinson’s attorney, William Winning.

During a roughly three-hour closing argument, McMahon attacked the prosecution on two primary fronts, that they failed to call a handful of key witnesses and that Pawlowski was essentially the target of a false and malicious prosecution.

In terms of witnesses not called to testify, Fleck took center stage. Jurors heard throughout the trial about how Fleck became the mayor’s campaign manager, helped him get re-elected in Allentown and spearheaded his gubernatorial and U.S. Senate campaigns.

But McMahon also made sure to focus on the fact that the FBI’s investigation into Allentown City Hall started when Fleck and Sam Ruchlewicz – an employee in Fleck’s business consulting firm – were suspected of loan and mail fraud. The two doubled as members of the mayor’s campaign staff.

McMahon argued that the jury was being asked to make “huge judgments” about the mayor and the allegations against him without having an opportunity to examine the base of the government’s case, which was Fleck.

As he’s done throughout the trial, McMahon referenced an August 2013 recording made by an undercover investigator in which Fleck calls Pawlowski “as straight as they come” and a rare politician who doesn’t engage in pay-to-play.

“Their main witness says the mayor doesn’t do pay-to-play, and they don’t call him,” McMahon said, pointing angrily at the prosecution table.

McMahon reminded jurors of a March 2015 recording after Fleck started cooperating with the FBI in which he told his staff that an overzealous FBI is probably going to make up alleged crimes and that he planned to “set up” the mayor. And the prosecution failed to mention in its closing argument why they didn’t call Fleck to the stand, he said.

“He’d probably be exposed as the manipulative reprobate that he is,” McMahon said. “The thief who stole $108,000 from the friend he was trying to set up.”

They chose to let him slither off to wherever he is,” he said.

The $108,000 referenced by the defense included $76,500 the mayor alleged Fleck stole from his U.S. Senate campaign before leaving town on top of the consulting fees he collected from working on the campaigns. Fleck has pleaded guilty for his role in the scandal and is awaiting sentencing.

McMahon also ripped the prosecution for failing to call Patrick Regan to the stand. Regan has pleaded guilty for his role in a scheme to allegedly rig the bidding process for a streetlight contract that eventually went to The Efficiency Network, where he was the former vice president.

Regan was accused of bribing the mayor with campaign donations, but he wasn’t called to testify about what he did or his mindset, McMahon told the jury.

“And the government didn’t even have the decency to put him on the witness stand in front of you,” he said.

Just as the prosecution went through each alleged scheme laying out its evidence, McMahon went through each alleged scheme and attacked what he argued was the government’s lack of evidence. He repeatedly told the jury that his client is never heard – even once on hundreds of recordings – making an explicit demand that a vendor hand over a donation in exchange for a contract.

McMahon accused the prosecution of purposely omitting sections of secret recordings played in court to make it appear that Pawlowski participated in conversations about alleged bribes or bid rigging, when in truth he had already left the table.

The defense alleged the mayor’s pitch as to why he’d make a good U.S. Senate candidate was purposely left out of recordings played in court to make it sound like he was asking for bribes, not donations.

McMahon even acknowledged that Pawlowski had conversations with potential donors in which they discussed city business and the mayor’s campaign. But there’s nothing illegal about having two separate conversations during the same meeting especially when no explicit link is made between campaigns and contracts, he said.

And if Pawlowski was the “pay-to-play kingpin” that prosecutors allege, he wouldn’t have even been mindful to make those separations in meetings with potential donors, McMahon said.

The government has tried to make campaign contributions, which are protected under the constitution, look like a “tawdry event,” McMahon said. And when investigators didn’t have enough strong evidence against the mayor, they used “dog whistles” such as burner phones, bugs, sweeps for listening devices and insulating the mayor as “smoke and mirrors” to detract from the lack of evidence, he argued.

McMahon accused prosecutors of trying to make crimes out of nothing such as the allegation that the mayor expedited zoning and inspection issues for real estate developer and donor Ramzi Haddad.

“Only in this case is getting a municipal employee to do his job is a federal crime,” he said.

The defense urged jurors to use common sense when weighing the evidence. What else could explain the mayor’s decision to rehire Fran Dougherty as his managing director after he lost his job with the Philadelphia School District for uncovering a rigged bidding process there?, McMahon asked.

“Who hires a whistleblower to manage your business if you’re going to engage in pay-to-play?” McMahon said. “Outside of (FBI Special) Agent (Scott) Curtis I don’t know of anyone worse.”

Prosecutors have failed to show a smoking gun that explicitly links efforts to land campaign donations to city contracts, McMahon said. In fact, he argued, the prosecution has shown only “smoking guns of innocence” through secret recordings in which Fleck is heard saying the mayor has never done anything wrong and the mayor telling staff he is not a “pay-to-play guy.”

McMahon all but accused prosecutors of pursuing a false prosecution of his client.

The FBI first began investigating a “couple of conmen” in Fleck and Ruchlewicz only to discover they were connected to the mayor, McMahon said.

“Oh boy, maybe we can get a big time politician, we can get a mayor,” McMahon said.

When Ruchlewicz fails to turn up clear evidence of pay-to-play, they go after Fleck, McMahon said.

When the campaign manager fails to turn up enough evidence, the FBI raids city hall, he said.

A year after the raid, a grand jury finally indicts the mayor, McMahon said. So instead of wasting more than three years on an investigation, they decide to prosecute Pawlowski, he said.

"You have an opportunity to end a created nightmare of Mayor Pawlowski and his family,” McMahon told the jury. Send him back to the people of the city he saved."

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