The Sunday before Salt Lake Olympic bid leaders Tom Welch and Dave Johnson went to trial, government prosecutors quietly offered them what amounted to a walk a plea bargain on a single misdemeanor tax charge.
Their attorneys thought they should at least consider taking the deal.
But both men chose instead to fight the 15 felony counts of fraud, conspiracy and racketeering the government had leveled against them, charges that could have sent them to prison for years.
The gamble paid off when U.S. District Judge David Sam acquitted them of all charges Friday in an extraordinary ruling from the bench in which he stated the government's case "offends my sense of justice."
Welch told reporters shortly after the decision that the government's five-year effort to get a conviction in the scandal surrounding Salt Lake's successful bid for the 2002 Winter Games had tested his faith in the legal system.
"Last night was probably the longest night of my life, and that five minutes before the judge (Friday) the sweetest," an emotional Welch said. "When you listen to the words of the judge today, our system is a great system and it works. I just thank God for it, and for people like Judge Sam."
Johnson, too, was grateful that the judge stood up to the government."A lot of people could have said, 'This is wrong, what they're doing to these two people.' They were all afraid. Judge Sam did it before and and he did it again today."
Sam's blistering ruling went beyond what anyone expected, even though he'd made his frustration with the prosecution clear throughout the five-week-long trial. The judge went so far as to cut off the prosecutors' efforts to elicit key testimony from several witnesses.
He'd already dismissed the charges against Welch and Johnson in 2001, only to see the government successfully challenge his decision to the 10th Circuit Court of Appeals in Denver. That court sent the case back to Utah in April.
Speaking from the bench at what would have been the first day of the defense's case, Sam announced he was acquitting Welch and Johnson of all charges. Welch immediately broke into a broad grin. A few moments later, Johnson wiped away a tear.
That decision came as no surprise. But then the judge went on to say that in his 40 years of experience with the criminal justice system, he'd "never seen a criminal case brought to trial that was so devoid of . . . criminal intent or evil purpose."
He mocked the prosecutors' attempts to "represent themselves as the protectors of our moral values" in Utah and of the "sacred standards" of the International Olympic Committee's charter as misplaced in light of the government's lack of evidence.
What offended his sense of justice, Sam told a packed courtroom, was that the federal government's case pitted "Salt Lake City and the entire state of Utah, welcome recipients of the efforts of Mr. Welch and Mr. Johnson," against the defendants.Finally the judge said he'd heard much about the $1 million in cash and gifts given to IOC members during the bid campaign. Now, Sam said, he'd like to know how much taxpayers' money was spent in investigating and prosecuting Welch and Johnson.
On his way out of the courthouse, prosecutor Richard Wiedis said the judge had been "too hard" on the government and declined further comment. The Department of Justice issued a statement expressing disappointment and regret that the case didn't go to a jury.
"(We) continue to believe that the citizens of the United States, especially the people of the state of Utah, had the right to have this criminal case decided by a jury," Assistant U.S. Attorney General Christopher Wray said.
The decision leaves the government "with no further opportunity to appeal," he said.
Attorneys for Welch and Johnson said Sam did the right thing.
"Judge Sam's comments were exactly on target," Johnson's attorney, Max Wheeler, said. "I think what he did was what the vast majority of people, not only in Utah, but in the Olympic movement generally, wanted to happen. There is absolutely no reason for this case."
Welch's attorney, Bill Taylor, said the judge did not go into the case expecting to dismiss it. "He was completely disposed to be as objective and as even-handed as he could be. . . . He's not going to put his fingers on the scales of justice for anybody."Taylor, though, didn't expect the judge to be so critical of the prosecution in court. "I'd have to say that was a first," he said.
"It is unusual," former U.S. Attorney for Utah Brent Ward said of Sam's rebuke. "It's a damning statement against the incompetency of the prosecution and the wisdom of bringing the case in the first place."
But Ward suggested the prosecutors may have deserved what they got. "I don't know whether they were inept or just on a long leash from Washington, or not adequately supervised. What it turned into was a train wreck, a disaster," he said.
He said it was telling that the chief of the Justice Department's fraud section, Josh Hochberg, flew in from Washington, D.C., for part of the trial. "It may have been a belated response to a case that was in trouble."
What the government's attorneys failed to do was prove that Welch and Johnson willfully intended to violate the law, key to each of the charges. "That was probably impossible from get-go," Ward said, given the unique circumstances of the case.
"This is a very confused set of facts. These guys did what they were commissioned to do," he said. "There's nobody who claimed to be harmed, no victim coming forward claiming, 'I was harmed.' Where's the harm and where's the foul?"
Indeed, some of the government's witnesses told the jury that they didn't feel a crime was committed. Banking executive Spence Eccles, an Olympic trustee, called the case "ill-conceived," and bid chairman Frank Joklik said he didn't consider what was done to be bribery.
The government, Ward said, needed to take a closer look at its case before bringing charges. Secret dealings, sham transactions and other "trappings of fraud prosecutions appeared to be present on the surface. But as soon as you get below, you see it's not typical."And using a little-known Utah bribery statute to pull the case together also hurt, he said. "They were stretching a state law to fit facts it was never intended to fit," Ward said. "That was overreaching on the part of the Justice Department."
Embarrassing, not criminal
Both Ward and University of Utah law professor Erik Luna said a judge grants a motion for judgment of acquittal after the government rests its case for lack of evidence in only about 1 percent of federal cases. The motion, known in legal circles as "Rule 29," is almost always made.
Luna said the ruling doesn't mean that Welch and Johnson didn't do anything wrong.
"That doesn't mean that providing these goods and services on the sly to members of the International Olympic Committee is something we should be proud of," he said, adding the actions "are an embarrassment, but they are not a crime."
The vindication of the pair on criminal charges "in no way should be taken as a thumbs-up to the underlying conduct. There's lots of immoral and unconscionable behavior but not a crime."
The judge said Friday he regretted that Welch and Johnson were deprived "of fully enjoying the fruits of your tireless efforts to bring the Olympics" to Utah and said he could only imagine "the heartache, the disappointment, the sorrow" they suffered.
"My hope is that you will now be appropriately recognized and honored for your efforts," Sam said, a sentiment not shared by everyone.
"The judge is wrong on that point," Luna said. "They are not heroes."
The law professor said he has sympathy for everyone in the case, including the prosecutors. "They were handed a dog case," Luna said. "They undoubtedly feel they were 'hometowned' . . , (that) they had a valid case, but were gutted by the locals."
It didn't help that at nearly every turn, their witnesses seemed to be bolstering the defense's case. "They did not have a single day where they were not hurt by their own witnesses," Wheeler said.
The worst may have come early on, with the government's second witness. Bid finance director Rod Hamson was supposed to convince the jury that Welch and Johnson deliberately hid their dealings in the bid committee's records.Instead, the defense showed evidence Hamson may have helped himself to $51,000 in bid funds. The government prosecutors were forced to grant him immunity from prosecution before he would continue testifying.
Long road ends
For Welch and Johnson, their acquittal marks an end to their Olympic experience. Welch devoted more than a decade to bringing the Olympics to Utah, working as a volunteer until the IOC awarded the 2002 Games to Salt Lake City eight years ago.
Welch headed both the bid and the organizing committees, until he resigned for personal reasons in 1997. Johnson was his No. 2, the vice president of international relations, until he was forced out several weeks after the scandal surfaced in late 1998.
Since then, they have been targets of the federal government, which finally filed charges in July 2000. Before Sam dismissed the case the following year, it was set to go to trial shortly before the Olympics and would have attracted worldwide attention.
Taylor said most people "don't have the courage" to fight the government. "They just want to get it over with. It is very rare for innocent people to be able to stand up to a federal prosecution like this. The pressure is just enormous."
Wheeler, who said he'd wanted his client to seriously consider taking the government's last plea offer rather than face the possibility of at least five years in prison, said his client "has nerves of steel. Dave never wavered for a moment."
Welch said Friday he never would have become involved with the Olympics had he known what would happen. "As I look at the Olympic saga that hopefully closes today, I certainly wouldn't have done it had I known the terrible price we'd pay as a family."But in saying that, I also think that had we not done that, had we not given those years, this city might have missed a wonderful opportunity that those Games provided us. I think the world does look differently at us today, and I that, hopefully, we look differently at ourselves."