Testimony in Jerald Engstrom's three-day trial was marked by a refrain that became numbing with endless repetition: "I don't remember," "I can't recall," and "My recollection of that is not clear."
Witnesses for both the government and the defense struggled to recall details of meetings and conversations that took place nearly six years ago.After all, this trial was not about a violent crime where shock emblazons the most trivial details into the memory. Engstrom was charged with misapplying bank funds. The crime - if there was one - arose out of phone calls, instructions to secretaries, explanations to vice presidents and agreements reached in meetings - details easily forgotten in weeks much less years.
Even the government's key witnesses struggled to remember. Salt Lake attorney Steven Gunn was called to the stand Wednesday afternoon to help assistant U.S. attorney Tena Campbell show the jury that Engstrom was promised 2,500 shares of a particular company's stock for helping the company with bank transactions.
Proving that Engstrom stood to benefit personally from the company's transactions with his bank is critical to the government's case.
But Gunn, like witnesses before him, couldn't remember key details. For example, he couldn't recall who it was that ultimately decided Engstrom should not get any shares.
"I don't have a clear recollection," he said.
"All the witnesses have been saying that throughout the trial," Randy Richards, Engstrom's attorney, told the Deseret News.
So why didn't the U.S. attorney's office file charges against Engstrom 51/2 years ago when memories were fresh?
Records in U.S. District Court show the FBI wrote the U.S. attorney's office on June 16, 1986, requesting that Engstrom be prosecuted.
Assistant U.S. Attorney Stewart Walz responded by sending Engstrom a letter dated July 2, 1986, offering a plea bargain. Engstrom's attorney wrote back and declined the offer, saying Engstrom believed pleading guilty to a felony conviction "would be disastrous to his continuing in the legal profession," and he preferred to take his chance in court.
But the U.S. attorney's office waited four years before giving Engstrom his day in court, not taking the case to the grand jury until spring of 1990.
"I can't tell you," Walz said, when contacted by the Deseret News. Walz was in charge of the case when it first went to the U.S. attorney's office 5 1/2 years ago. But he said he would not comment on the five-year delay in filing charges because the case was in trial.
When it was explained that he would not being asked to comment on the trial itself, Walz reiterated "I refuse to comment."
Engstrom's attorneys say the delay damaged Engstrom's defense. Two key witnesses for the defense - the man who instructed him to make the transactions and the man who wrote checks to cover the transactions - refused to testify for Engstrom when located five years later.
After a lengthy search, one witness was located this summer in a Texas prison, serving a sentence for an unrelated crime he committed in 1987. He refused to testify for Engstrom, saying that his testimony might hurt his appeal for his felony conviction.
The second man - the one who wrote the checks that were supposed to cover Engstrom's transactions - told Engstrom his memory about the incident had faded so badly between 1985 and 1990 that "he may not be of any value to the defendant in the presentation of his case," court records said.
Nonetheless, Engstrom spent $2,500 to have both men brought up to testify at his trial this week. After they arrived, both men refused to testify, taking the Fifth Amendment.
"Arguably, they could have taken the Fifth had they testified the day after the transactions," said Richards, Engstrom's attorney. But he believes the passage of time and the convictions of both men for unrelated crimes in recent years prompted their refusal to testify.
The government refused to explain its delay in court briefs, either, even though Engstrom's attorneys said the delay denied Engstrom his constitutional right to a speedy trial.