Outside presence of the jury, a day of drama at Rowland’s trial

Reid H. Weingarten after Rowland's arraignment. He's made no public comments since then.

CT Mirror file photo

Reid H. Weingarten, John Rowland’s lead counsel, after the former governor’s arraignment. Weingerten has made no public comments since then.

 New Haven – Prosecutors and the defense wrangled through the day Tuesday over whether an Apple Rehab executive could testify about conversations in which the company’s owner, Brian Foley, denied having any deal to illegally hire former Gov. John G. Rowland as a consultant to the congressional campaign of his wife, Lisa Wilson-Foley.

Senior Judge Janet Bond Arterton allowed Brian Bedard, the chief operating officer of Apple, to testify about the conversations outside the presence of the jury, then concluded that his testimony did not actually impeach the story told by Foley, the key witness in the government’s case against Rowland.

Arterton ultimately ruled that Bedard’s testimony about his conversations with Foley would not be heard by the jury. Bedard, who began testifying Monday on work Rowland did as a consultant for Apple, was the first and may be the last witness called by the defense.

Bedard was called to counter the government’s claim that Rowland’s consulting with Apple was a sham to hide his work for the congressional campaign of Foley’s wife, Wilson-Foley.

Foley says he directed his company to hire Rowland as a cover, a means to secretly buy Rowland’s political expertise, but Bedard testified Tuesday that Rowland offered useful advice on how to react to the changing regulatory and funding environment around Apple’s nursing home business.

Rowland’s lead counsel, Reid H. Weingarten, asked Bedard if he ever thought Rowland had been hired as a pretext by Apple, not for his services.

“Not for a split second,” he replied.

But Arterton sent the jury from the courtroom when Weingarten was ready to begin a new line of questioning intended to impeach Foley.

The defense said it had learned over the weekend that Bedard, the top executive at Foley’s nursing home chain, had heard Foley repeatedly deny that hiring Rowland as an Apple Rehab consultant was a sham.

Assistant U.S. Attorney Christopher Mattei accused the defense of “ambushing us on the last day of trial.”

Under the rules of evidence, the defense should have confronted Foley about any inconsistent statements during his direct testimony, Mattei said.

Arterton concurred.

“This is like desperation, and it should not be permitted by the court,” Mattei said.

“Your honor, this is not desperation. This is at the heart of the case,” Weingarten replied.

Weingarten said he heard about Bedard’s potential testimony for the first time Sunday, as it prepared him to testify as Rowland’s first and, possibly, only witness.

“We didn’t do anything wrong here,” Weingarten said. “How can it not be usable?”

The government would not be disadvantaged by the surprise testimony, since they could recall Foley to the stand and get his version, he said.

“The remedy for the government is they call Foley,” Weingarten said. “We put in the evidence, and they call Foley.”

As Weingarten spoke to Arterton, the rest of his legal team scanned their laptops for case law supporting the admissibility of a late impeachment witness.

“There has to be a remedy here,” he said. “We weren’t sitting on our hands.”

Arterton let her decision stand and directed the government to begin its cross-examination of Bedard, but she left open the possibility of revisiting the issue. After the lunch break, Arterton said she had reconsidered and would allow Weingarten to question Bedard on what Foley told him.

But she allowed that examination outside the presence of the jury after Mattei argued that Bedard’s testimony, as proffered by Weingarten, did not necessarily contradict Foley. The Apple Rehab owner had testified he never told anyone at Apple he was hiring Rowland for political reasons, and he also conceded that his deal with Rowland was unspoken.

“Brian Foley told me he would not testify to making a deal with john Rowland. There was no quid pro quo,” Bedard said, recalling a conversation when federal authorities began their investigation.

But he was unclear on the timing. The government argued that Bedard did not contradict Foley and that his uncertainty on the timing of those conversations rendered his testimony without value.

Arterton concurred: Testimony about the conversations would not be heard by the jury.

Brian Foley

Mark Pazniokas / CTMirror.org

Brian Foley

Bedard was called by the defense to counter the government’s claim that Rowland’s consulting with Apple was a sham to hide his work for Wilson-Foley’s campaign.

Apple’s owner, Foley, has testified he directed his company to hire Rowland as a cover, a means to secretly buy Rowland’s political expertise, but Bedard testified Tuesday that Rowland offered useful advice about how to react to the changing regulatory and funding environment around Apple’s nursing home business.

Bedard’s testimony probably will be used by the defense to suggest in closing arguments that, whatever Foley’s intent in hiring him, Rowland took the consulting contract seriously and provided actual services, even as he also helped run Wilson-Foley’s campaign.

Rowland, 57, a Republican who was driven from office in 2004 by a corruption scandal that made hiring him politically dangerous in 2012, is accused of conspiring with Foley and Wilson-Foley to conceal a campaign contribution: the services of Rowland, for which Foley paid $5,000 a month from October 2011 through April 2012, when Rowland’s income from Apple became public.

The government says Rowland’s $5,000 monthly fees from Apple should have been listed as expenditures on Wilson-Foley’s campaign finance report, but the campaign knew that hiring Rowland, who served 10 months in prison, would have been politically toxic.

Bedard, 44, is the chief operating officer at Apple Rehab, a career employee who described Foley as a distant boss, not given to explaining why he periodically brought in outside consultants to examine his chain of 26 nursing homes.

At the time of Rowland’s hiring in October 2011, Wilson-Foley’s campaign for the Republican nomination for the open 5th Congressional District seat was ramping up, a source of dread to Bedard and other senior executives at the company closely held by Foley.

Bedard said he and other executives feared that Apple would become a political target, and testimony at trial showed that, indeed, the political interests of Wilson-Foley and Apple became intertwined.

“It was so incestuous,” Bedard said.

Apple, for example, had readied an advertising campaign in April 2012 featuring testimonials from patients in preparation for the damage that Apple’s reputation might suffer during the campaign. On April 9, 2012, Rowland wrote an email warning that Kevin Rennie, a blogger and Hartford Courant columnist, was looking for information on Apple with the intent to “bang” Foley’s business.

Bedard reported that the testimonial commercials were ready and would go on television the next day.

Rowland and Chris Healy, the former GOP state chairman working as a strategist for the Wilson-Foley campaign, summoned Bedard to a meeting, instructing him to bring details of anything that could be used to embarrass Apple or Wilson-Foley.

Bedard said he had an executive gather any government reports of deficiencies at Apple, and he brought them to the meeting.

“These are our vulnerabilities,” Bedard said of the reports, without detailing them.

But within weeks, Apple and the Wilson-Foley campaign had a bigger problem than Rennie: The Torrington Register Citizen and other media outlets were asking if Rowland was on Apple’s payroll while he volunteered as a strategist for the Wilson-Foley campaign.

Bedard said he was instructed by Foley to prepare a press release detailing Rowland’s involvement with Apple and reporting that Rowland no longer worked for the company, which was news to Bedard.

He described delivering the press release to a room at Wilson-Foley’s campaign headquarters, where the windows were covered by paper.

Did he have a conversation with Foley about the press release?

“Outside of sending it to him, no,” Bedard replied.

On cross-examination, Assisistant U.S. Attorney Liam Brennan repeatedly struck an incredulous tone as Bedard said he had no idea that Rowland’s hiring was political, even as he conceded that the business of Apple and the campaign frequently mixed.

Bedard said the campaign wanted employee emails and patient contact information. He testified that he objected to the former and successfully blocked the release of the latter.

But he never suspected the Rowland contract was about politics?

“Never once.”