FBI agents who questioned then-City Council Member Dean Zimmermann last year about his dealings with developer Gary A. Carlson failed to notify Zimmermann of his rights to legal counsel, according to testimony in a pre-trial hearing Tuesday.
Special Agent David Kukura testified that he and Agent Tim Bisswurm approached Zimmermann September 8, 2005, at the unfinished Chicago Commons project after Zimmermann met with Carlson. They identified themselves as FBI agents and spoke with the council member for two-and-a-half hours.
“That meeting was set up so that you and Agent Bisswurm could have a conversation with my client?” asked defense attorney Dan Scott.
“Correct,” Kukura replied.
Bisswurm secretly recorded the conversation, which became one of the centerpieces of the government’s case against Zimmermann, but at no time did the agents advise Zimmermann that he could ask for legal counsel. “He didn’t have to answer the questions,” Kukura said. “We did not tell him that he could have an attorney present.”
The testimony, before U.S. Magistrate Jeanne Graham, was part of the final pre-trial hearing in the Zimmermann case, which is scheduled to go to trial July 31.
In January, Zimmermann was indicted by a grand jury on three counts of bribery for allegedly taking $7,200 from Carlson in exchange for helping the developer receive certain zoning changes for his Chicago Commons project. The City Council ultimately denied the changes. Zimmermann maintains that he broke no laws.
In addition to demonstrating that Zimmermann was not informed of his “Miranda” rights prior to the FBI interview, Scott sought assurance from the court that Carlson would be available to the defense for an interview. He argued that the developer, known as the “cooperating witness” in grand jury documents, has been revealed as the informant and should be compelled to answer questions from the defense. “It’s an advantage to both sides if the government makes the witness available to interviews when everyone’s present,” Scott said. “He’s clearly chosen sides on the case.”
But prosecutor John Docherty denied that the government had revealed Carlson’s identity. “Officially, we have not revealed the identity of the informant,” he said. “And the law does not require an interview.”
Docherty, however, said he would make Carlson available to the defense “within a week.”
Nelson denied Scott’s request to require a pre-trial interview of Carlson, but added that, “If there is a problem, I may listen to the issue.”
In an interview, Scott admitted that the lack of a Miranda warning would likely not affect Zimmermann’s defense, since he wasn’t under arrest at the time of the questioning. On the question of Carlson’s availability for questioning, he said, “I don’t assume anything.”
Scott added that Carlson’s reasons for cooperating with the FBI would be explored at trial. “We have to identify what motivated Carlson,” he explained. “We only have bits and pieces now.”
Asked whether he would subpoena Carlson’s business partner, Azzam Sabri, or Basim Sabri, whose office was searched by FBI agents prior to the Zimmermann interview, Scott demurred. “I have no idea,” he said. “I have absolutely no idea.”