Defense attorneys for Mitzi Bickers asked for a mistrial in her federal bribery trial Tuesday, after they said a key witness in the government’s case is planning to refuse to testify in order to avoid incriminating herself.
Marissa Goldberg told U.S. District Court Judge Steve C. Jones that she and fellow defense counsel Drew Findling had subpoenaed Cotena P. Alexander, and that she had been cooperating until Monday afternoon when the lawyers were told she planned to take the Fifth — or exercise her right under the Fifth Amendment to the Constitution against self-incrimination.
That decision, Goldberg argued, could mean defense attorneys would not get testimony from Alexander just as her name has popped up in emails as a figure who allegedly dolled out city contracts in exchange for bribes. The attorneys said early Tuesday they had not spoken to Alexander or her counsel to verify her plans.
Jones rejected the mistrial request.
Alexander could not be reached for comment Tuesday, and a message left on her cell phone was not returned.
Prosecutors allege Alexander helped Bickers funnel contracts to Elvin “E.R.” Mitchell and Charles P. Richards after Bickers left City Hall in 2013.
The men, owners of two local Atlanta construction companies, received more than $17 million in city contracts between 2010 and 2014 allegedly with the help of Bickers, who was the city’s director of human services from 2010 to 2013. Both Mitchell and Richards have told prosecutors they paid Bickers a combined $2 million in bribes for steering the business their way.
Prosecutors have said Alexander used money provided to her by Bickers to buy personal items and pay off $30,000 in debt.
“We had no indication that anyone was going to ask for the Fifth,” said Goldberg, adding that the defense had filed motions to determine if witnesses were considering that as an option. “This is exactly what we were trying to prevent.”
Alexander, a former operations director for Atlanta’s public works department during the period when the alleged bribes occurred, has not been charged in the case. It is not clear if she had entered into an agreement before trial to cooperate with the government to reduce any potential criminal exposure.
She is now deputy commissioner in the Atlanta Department of Transportation. She was placed on paid administrative leave last week after officials in the mayor’s office learned of her alleged involvement in the scheme.
It’s unclear if Alexander faces any legal jeopardy. It’s likely the statute of limitations for any alleged bribes has expired, said Esther Pantich, a criminal defense lawyer who has closely followed the case. The alleged bribes and contract steering involving Alexander occurred in 2014. Mitchell pleaded guilty in January 2017.
“Which begs the question, what else was she worried about?” Panitch said. “This is why you try cases. You never know what might happen. It’s unusual, but it’s not unique. Witnesses freak out. They get scared and get cold feet.”
Panitch said it is more likely than not that Alexander reached some kind of cooperation agreement with the government, but it is not a certainty.
It seems unlikely the government would go into trial and depend solely on Alexander’s goodwill to testify, Panitch said.
“Terms of that agreement, if any, would specify consequences, if any,” Panitch said.
Alexander’s testimony was expected to be a key link in its effort to prove one of the dozen charges against Bickers – namely that Bickers bribed a city official and continued to have influence on contracting at City Hall after she left her role as the city’s director of human services in 2013.
If Alexander decides not to testify, it hurts the government’s ability to establish that link, Panitch said.
The request for mistrial came on Day 4 of the trial in which the prosecution ramped up its number of witnesses, including representatives of two snow removal companies, a Wells Fargo banker and a former senior policy advisor of transportation for the city.
Courtroom observers included a group from Emmanuel Baptist Church, where Bickers is pastor. They held a prayer circle with their embattled leader during one of the morning breaks.
Witnesses for the prosecution, citing emails the federal government entered as evidence, testified that Alexander directed business to Mitchell’s construction firm, Cascade Building Systems, after the Jan. 29, 2014 snowstorm that crippled Atlanta.
The witnesses, which include former Atlanta Commissioner of Public Works Richard Mendoza and Rita Braswell, an administrative program manager in the public works department, said Alexander authorized Mitchell’s company for the work even though it was not one of five that had been contracted in 2011 to clear roads in future snow emergencies.
Some of the companies on the approved list were contacted to remove snow from the Jan. 29 storm as well as a second round of precipitation several days later in February. But they never were called into duty, company representatives said.
Findling, however, said there were other companies that were not on the approved list that received contracts for cleanup, including Thrasher, a company that received $1.2 million for its work during the 2014 snow storms.
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