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Judge throws out witness in mortgage-fraud trial

By Ed Meyer
Beacon Journal staff writer

POSTED: 03:34 p.m. EST, Nov 18, 2008

A judge threw out the state's second witness this morning barely an hour after the opening of the Summit County trial of former Evergreen Corp. President David B. Willan.

The witness, retired sheriff's Detective Ed Gruska, was attempting to testify about his arrest of Willan on a 1992 misdemeanor charge in Barberton Municipal Court involving a bad check for a utility bill.

Retired Common Pleas Judge James E. Murphy, who is presiding over the trial by appointment, interrupted the testimony to ask Gruska whether he had a certified copy of a conviction record for the offense.

Gruska could not produce such a document, and Murphy ordered him to step down from the stand and leave the courtroom.

The jury was then instructed to disregard what it had just heard. The panel then broke for lunch.

Willan, 38, is charged with 69 felony counts involving a pattern of corrupt activity, small-loan and securities fraud and other alleged financial offenses.

But before the state put on its first witness, Murphy held up a 35-page copy of the voluminous charges as part of his jury instructions and told the panel: ''There is no validity to any of these unless you find the evidence at the conclusion of the trial.''

In December, Willan and 16 co-defendants were charged in a 147-count indictment with an array of financial crimes in the Akron area from 2002 until Willan's Evergreen companies went out of business in June 2006.

But at the government's request, Murphy streamlined the case, eliminating all of the co-defendants from the first phase of the trial and paring the indictment to about half its original size.

Six of Willan's co-defendants, including his sister, have pleaded guilty to various felony charges, and some are expected to testify against Willan during the four-week trial.

In today's opening statements, assistant Attorney General Brad L. Tammaro — assigned to the state's organized crime unit — described Willan as a ''puppet master'' of the various Evergreen companies who misused other people's money to make ''millions upon millions'' for himself.

Much of Willan's activity, Tammaro charged, involved the investments of elderly Summit County residents whose money now is ''forever gone.''

However, when the defense gave its opening statement, attorney Andrea L. Whitaker said Willan still would be making small loans to home buyers and paying the company's high-risk investors if not for a raid on his businesses two years ago.

According to Summit County court records, hundreds of thousands of pages of business files and computer records were seized by a government-organized task force searching the Evergreen companies at 611 W. Market St. in Akron on June 19, 2006.

Attorney Thomas Adgate, who previously represented Willan, first raised the issue of the raid when he was waiting outside court early this year to testify at a bond hearing for the defendant.

But today was the first time that the raid was raised publicly as a possible line of defense in the Evergreen case.

Adgate had said in January that Willan's many investors were not complaining when they were receiving high rates of return on their investments for four years before the raid.

Gruska, one of 125 potential government witnesses against Willan, was under direct examination by Assistant Summit County Prosecutor Colleen Sims when his testimony was disallowed.

Afterward, outside of earshot of the jury, Murphy told Sims and Tammaro that he dismissed Gruska because he was a ''poorly prepared'' witness.

''I'm not saying you can't put on evidence,'' Murphy told the two prosecutors, ''but do it properly and have the witness prepared.''

Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.

A judge threw out the state's second witness this morning barely an hour after the opening of the Summit County trial of former Evergreen Corp. President David B. Willan.

The witness, retired sheriff's Detective Ed Gruska, was attempting to testify about his arrest of Willan on a 1992 misdemeanor charge in Barberton Municipal Court involving a bad check for a utility bill.

Retired Common Pleas Judge James E. Murphy, who is presiding over the trial by appointment, interrupted the testimony to ask Gruska whether he had a certified copy of a conviction record for the offense.

Gruska could not produce such a document, and Murphy ordered him to step down from the stand and leave the courtroom.

The jury was then instructed to disregard what it had just heard. The panel then broke for lunch.

Willan, 38, is charged with 69 felony counts involving a pattern of corrupt activity, small-loan and securities fraud and other alleged financial offenses.

But before the state put on its first witness, Murphy held up a 35-page copy of the voluminous charges as part of his jury instructions and told the panel: ''There is no validity to any of these unless you find the evidence at the conclusion of the trial.''

In December, Willan and 16 co-defendants were charged in a 147-count indictment with an array of financial crimes in the Akron area from 2002 until Willan's Evergreen companies went out of business in June 2006.

But at the government's request, Murphy streamlined the case, eliminating all of the co-defendants from the first phase of the trial and paring the indictment to about half its original size.

Six of Willan's co-defendants, including his sister, have pleaded guilty to various felony charges, and some are expected to testify against Willan during the four-week trial.

In today's opening statements, assistant Attorney General Brad L. Tammaro — assigned to the state's organized crime unit — described Willan as a ''puppet master'' of the various Evergreen companies who misused other people's money to make ''millions upon millions'' for himself.

Much of Willan's activity, Tammaro charged, involved the investments of elderly Summit County residents whose money now is ''forever gone.''

However, when the defense gave its opening statement, attorney Andrea L. Whitaker said Willan still would be making small loans to home buyers and paying the company's high-risk investors if not for a raid on his businesses two years ago.

According to Summit County court records, hundreds of thousands of pages of business files and computer records were seized by a government-organized task force searching the Evergreen companies at 611 W. Market St. in Akron on June 19, 2006.

Attorney Thomas Adgate, who previously represented Willan, first raised the issue of the raid when he was waiting outside court early this year to testify at a bond hearing for the defendant.

But today was the first time that the raid was raised publicly as a possible line of defense in the Evergreen case.

Adgate had said in January that Willan's many investors were not complaining when they were receiving high rates of return on their investments for four years before the raid.

Gruska, one of 125 potential government witnesses against Willan, was under direct examination by Assistant Summit County Prosecutor Colleen Sims when his testimony was disallowed.

Afterward, outside of earshot of the jury, Murphy told Sims and Tammaro that he dismissed Gruska because he was a ''poorly prepared'' witness.

''I'm not saying you can't put on evidence,'' Murphy told the two prosecutors, ''but do it properly and have the witness prepared.''

Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.



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