FRIENDLY JUDGE HELPS CEI & SQUIRE-SANDERS

U. S. Judge Robert Krupansky knew how to toss a case the way he wanted it to go.

He did it a simple way. The first jury voted against CEI with a single holdout. That was a bad sign for CEI. So Krupansky made a couple of simple changes. He finely tuned things for CEI.

There were two damaging examples of CEI’s legal manipulation that swayed the first jury.

Krupansky took care of both of them. He simply ruled that the city had no right to expose the second jury to the same material he allowed in the first trial. Even though the details were agreed and stipulated by CEI and the city as to fact.

One issue was the city’s “smoking gun.” CEI had hired a lawyer to sue the city twice. The purpose of the suits was to delay an 85-megawatt interconnection crucial to the operation of Muny Light. It allowed CEI to avoid an interconnection Muny needed badly.

Krupansky also ruled out Squire, Sanders & Dempsey’s successful alteration of city legislation. This delayed the city’s ability to borrow funds for repairs at Muny Light. The law firm at the time represented both the city and CEI. CEI well; the city far less well.

Krupansky kept the interconnection issue - a central part of the city’s case - out of the second trial. It clearly showed CEI’s underhanded behavior. He accepted CEI’s contention its First Amendment rights would be damaged.

The interconnection was important, as revealed in this 1969 CEI memo to its CEI chief counsel Lee Howley: “If a permanent 80 megawatt interconnection with CEI were used only for capacity back-up, the fuel savings to help Muny would be substantial, in the magnitude of $500,000 to $600,000 a year…These figures clearly point out the tremendous economic benefit that a strong intertie with CEI would provide Muny.” It concluded: “A strong permanent interconnection would give Muny the system reliability it sorely needs.” 

Now I call that sabotage. I call a judge helping to hide such behavior biased toward one side.

The second trial was much different from the first. CEI knew the city’s case and could counter it. With the judge seemingly in its pocket, CEI’s lawyers had wide range. It was also long 10 week plus trial. The length obviously didn’t please the jury.

Squire, Sanders & Dempsey partner John Lansdale – “Cactus Jack” to his friends and “Jack in the Box” to court viewers – revealed his prickly nature, objecting to almost every question at times. He also muttered comments during his opponent’s questioning of witnesses. These tactics, backed by Krupansky rulings, had the city’s lead lawyer Brad Norris often off balance.

Lansdale’s behavior seemed made for judicial smack downs. In notes, I observed his actions. “Lansdale jumping up and down and finger pumping;” and “Lansdale animated and loud enough for the jury to hear;” and “Lansdale objects angrily;” and “Lansdale objects angrily.”

Lansdale played an abrasive game. At one point, with judge and jury out of the room, he called to Norris. He began to berate Norris about his questions. Norris had a paper cup with water in his hand. As they talked, Lansdale yelled, “Back off from me.” Norris stood there. Lansdale then angrily jabbed him in the stomach or chest, throwing Norris off balance as he tried to avoid spilling the water.

Lansdale was clearly worried about what he had done. He feared possible repercussions from the news media reports. Reporters observed the confrontation.

Lansdale followed Norris into another room and started to apologize so that reporters could hear him. Then he tried to head off negative coverage of the incident. “Don’t be a bastard. Don’t you be a bastard,” he said to reporters. The suggestion was they shouldn’t treat him harshly.

He didn’t have to worry. The media didn’t pay much attention. The PD, some felt, made Norris seem the menacing one. If true, I wrote, Norris’s weapon was a paper cup.

You knew that this second meet between these lawyers was personal.

Krupansky obviously heard about the incident. When the trial resumed, he admonish both sides. He ignored the physical nature of Lansdale’s action.

Krupansky also made sure that bench conferences were off the record, unlike in the first trial. Neither lawyer could talk about what transpired at the bench. In the first trial, that information was available to reporters. It showed Krupansky’s biases.

The jurors in the second trial also revealed a much different demeanor.

“The first jury seemed intimidated by the task. Members rarely even smiled and never seemed to look out into the audience. The opposite is true of these (second jury) jurors,” I wrote during the second trial.

“Lansdale seems to have success with one juror, the only male of the six-person trial jury (there are eight alternatives, two male.) This juror, who became the foreman, gives the appearance of enjoying Lansdale immensely,” I wrote.

There was little question in my mind that the foreman had made up his mind, either before the trial, or early in the trial. He seemed to think of the city’s case as a joke. He displayed clownish behavior that all could easily observe.  

The foreman was once overheard talking to one of the judge’s aides in the corridor. “I’ll tell you one thing it’s not all it’s cracked up to be,” he said. It was clear to me he was speaking of the city’s case.

Before I go further I have correct my previous remembrance of a jury of 12. The jury had six jurors. One proved a holdout. There were some suspicions of her reasons for holding out, however, no proof of jury tampering was revealed.

Here is what I wrote in December 1980: “They voted 6 to 0 that the relevant market was the city of Cleveland and beyond those boundaries. CEI wanted it limited to 30 square miles where the city and CEI directly compete. The larger area increased damages and was what the city sought.”

The jurors voted 6 to 0 that CEI DID monopolize the entire market. It gave the city a crucial victory.

However, on other matters the jury could not agree. One juror steadfastly held out. It gave Krupansky the power to call a mistrial.

“We thought Mr. Lansdale’s behavior make them (CEI) look bad. We thought the city attorneys behaved more professionally in the court room. Many times after we’d get to the jury room someone would remark that CEI’s defense seemed bumbled,” the first trial foreman told reporters.

In comments after the mistrial jurors were strongly supportive of the city’s case.

I wrote: “The jurors, when Judge Krupansky declared a mistrial, were on the third of five questions they had to answer to come to a decision. This area examined whether CEI’s monopolizing damaged Muny. Five said yes and the holdout couldn’t be brought along.”

I wrote at the time: “All the legal cards and maneuverings of CEI and Krupansky have not derailed the suit. Justice hasn’t yet been done and may never be fully. But monumental attempts to destabilize Muny have failed.”

The Plain Dealer had signed Muny’s death notice long before. In an editorial, the PD said in 1976, “The sale of the Municipal Light plant to CEI was inevitable. Muny Light was outmoded, too costly to operate and also one of the 10 biggest polluters (how when it wasn’t even generating) in the Greater Cleveland area. The only surprise in the sale was the purchase price, and for this Mayor Perk deserves credit for striking an exceptional bargain for Cleveland taxpayers.”

Of course, the sale never went through. Dennis Kucinich threatened to put it on the ballot and that forced Perk. The two ran in the 1977 primary for mayor. In that race, Perk finished third behind Kucinich and Ed Feighan.

I believe the fight over this city asset revealed the rapacity of private interests in Cleveland to the detriment of good government.

It is surprising now to look back and see how many years this battle continued. Muny Light over the years had some very loyal workers and supporters. They fought to keep the system public.

An attempt to sabotage should have seriously scarred the reputations of CEI and Squire, Sanders and Dempsey. It didn’t. I blame a compliant press. Some of these acts should have been treated as crimes. They were never framed as such by the news media.

In the end the city kept its plant. But at a great cost. It deserved much better from the court.