A look back - Democrats convicted of vote fraud in '04 election; Shakedown process known as the East St. Louis 'Toodleoo'

EAST ST. LOUIS – Democrats who claim Republicans corrupted the election of 2004 neglect to mention that four of their own leaders served prison time for buying votes that year.

Precinct committeemen in East St. Louis handed out cash to voters who promised to cast Democrat ballots, jurors in federal court found in 2005.

Testimony showed Democrats doubled the payment from $5 to $10, to offset a local perception that St. Clair County Board Chairman candidate Mark Kern was a racist.

Kern won the election, over Republican Steve Reeb.

The buying of Democrat votes also worked to the advantage of Fifth District appellate judge Gordon Maag in a close Supreme Court race with Republican Lloyd Karmeier.

Maag lost, but lawyers in his party still insist he would have won an honest election.

One legal team pleads to the Illinois Supreme Court that Philip Morris provided secret support to Karmeier through third parties in order to overturn a $10 billion judgment.

Another team pleads in U.S. District Court at East St. Louis that State Farm provided secret support to Karmeier through third parties in order to overturn a $1 billion judgment.

They have struggled for 10 years to prove Republicans cheated, but it took former U.S. attorney Ronald Tenpas just eight months in 2005 to prove Democrats cheated.

On March 22, 2005, grand jurors indicted Lewis Powell Jr., chairman of the East St. Louis Democratic committee, as leader of the conspiracy.

They indicted committeemen Kelvin Ellis, Jesse Lewis, and Sheila Thomas, and precinct worker Yvette Johnson, on charges of passing out cash for votes.

The indictment stated that the object of the conspiracy was to secure the election of Democratic candidates including Kern, Maag, and presidential candidate John Kerry.

Powell hired Bruce N. Cook of Belleville to defend him, and Cook moved to exclude evidence of vote buying in previous elections.

Cook wrote that “in non-federal elections such conduct may be legal.”

Tenpas responded that, “The government is unaware of any election, federal, state, or municipal, in the state of Illinois in which it would be legal to pay people for voting.”

He wrote that in 2002, Powell trained committeemen to buy votes without getting caught.

“One witness will testify that she has been receiving money from Powell for voting for the last 20 years,” Tenpas stated.

U.S. District Judge Patrick Murphy, now retired, ruled that he would allow evidence from previous elections only to show that Powell’s committeemen understood his instructions in 2004.

Trial began on May 31, 2005, and Murphy barred witnesses from watching the proceedings.

Tenpas and assistant U.S. attorney Mike Carr built their case on conversations that precinct worker Danitta Youngblood and city police officer Rudy McIntosh secretly recorded.

Youngblood testified that defendants were concerned about perceptions of Kern as a racist.

On June 10, when Carr asked McIntosh about that perception, Cook objected and Murphy overruled him.

Murphy said, “This is not being offered to prove that Mark Kern is a racist or even to prove as a matter of fact that people in East St. Louis thought Mark Kern was a racist.

“Obviously that’s not the case. We know from the votes.”

Carr asked him to strike that.

Murphy said, “Didn’t we just hear what the election totals were, and didn’t this show that Mark Kern got practically every vote in East St. Louis?”

Carr said, “I don’t think that equates to the court’s conclusion.”

Murphy said, “I admitted this evidence because you told me that’s the purpose that it was not being admitted for.

Are you offering it to prove that Mark Kern was a racist and people in East St. Louis thought that?”

Carr said no.

Murphy said, “Then ask your next question. If you are trying to prove Mr. Kern is a racist and people in East St. Louis think he is, prove it.”

Carr said he put in evidence on that from Youngblood.

Murphy said, “That the people in East St. Louis thought that?”

Carr said, “There is a perception and there was evidence of that, yes sir, and I think that’s a jury determination whether or not that exists.”

Murphy said, “You are going to ask the jury to decide that Mark Kern is a racist?”

Carr said no.

On June 14, Carr moved for a jury instruction about Murphy’s comments.

“Contrary to the court’s comments, the evidence was being offered by the government to prove that people in East St. Louis thought that Mark Kern was a racist,” Carr wrote. "The court was incorrect and expressing an inappropriate opinion when it told the jury that the results of the election proved otherwise.”

He wrote that Murphy contradicted and impeached Youngblood.

“Further, the fact that the vote overwhelmingly favored Mark Kern is not even inconsistent with the witnesses’ testimony that people in East St. Louis thought he was a racist since the vote count included voters who may have thought he was a racist but voted for him anyway because they were paid.

“The government has introduced testimony that Kelvin Ellis, in the presence of Danitta Youngblood and others, told Mark Kern in a telephone conference that more money would be needed to pay voters since there was a perception that he was a racist.”

Cook opposed Carr’s motion on behalf of Powell, writing that Kern’s opponents sponsored the perception of racism.

“Additionally, that perception could be used as a bargaining position by persons seeking more campaign money from Kern, a person of means,” Cook wrote.

He wrote that Powell would stipulate “that McIntosh went around to persons he was recording and stated he was having trouble carrying Kern because of a perception of racism.”

Murphy denied Carr’s motion.

Cook planned to call Republican candidate Reeb as a witness, but Murphy barred Reeb’s testimony after learning that he watched a portion of the proceedings.

On June 27, 2005 jurors deliberated for six hours and found all five defendants guilty.

All five moved for a new trial.

Cook argued for Powell that the only conspiracy the government proved was the attempt to shake down Kern, “a process known as the East St. Louis Toodleoo.”

“Powell could not properly separate himself from the ‘toodleoo’ without overtly attacking some of his co-defendants, a defense process that was not structurally sound when your ‘co-defendants’ follow you in presentation and argument,” Cook wrote.

He wrote that barring Reeb’s testimony was an abuse of discretion, “probably triggered by the court’s subconscious desire to appear even handed.”

Carr opposed a new trial.

"A rational jury could easily have determined that this racism problem was the catalyst behind having to pay voters who would not ordinarily come out to vote in this election,” Carr wrote.

He wrote that he had no idea what the relevance of Reeb’s testimony might have been.

In September, Tenpas moved for an upward departure in Powell’s sentencing range.

Tenpas stated that Powell perpetuated “a massive, unchecked system of vote buying which has gone on for decades in East St. Louis.”

He wrote that Powell lacked a criminal history only because no one prosecuted him.
Committeemen who participated in the conspiracy expected and received benefits including gifts, money, appointments, and preference in hiring, he wrote.

Public services were curtailed or eliminated in precincts where committeemen refused to cooperate, he wrote.

McIntosh lost his job as a city policeman when it became known that he worked with the government, he wrote.

Murphy denied new trials in October, finding jurors relied more on the recorded statements of defendants than on the evasive testimony of Youngblood and McIntosh.

Murphy found Powell showed no prejudice from the decision to bar Reeb’s testimony.

In January 2006, Murphy sentenced Kelvin Ellis for four and a half years, Sheila Thomas for 18 months, and Jesse Lewis for 15 months. He placed Yvette Johnson on two years probation.

He postponed Powell’s sentencing so Powell could dispute the government’s contention that he violated a public trust.

In February, Cook moved for probation or downward deviation from the sentencing range.

He wrote that Powell resigned as East St. Louis party chairman.

“Mr. Powell is a married father employed and does good public works,” Cook wrote.

At a hearing, Cook argued that Powell did not abuse the trust of his party.

"The Democratic Party sent money down there, the Republican Party sent money down there, and they darn well know how that money is used,” he wrote.

"There is nothing wrong with people voting, and as a matter of fact it should be encouraged.

“A reward was given to people who exercised their franchise. Not only didn’t he violate any trust, there is nothing immoral about what he did.”

He said the prosecutor should have called party officials.

“Somebody would have to come in here, I suppose, and say we didn’t want Powell to do that,” Cook stated.

Cook asked if the party got anything less from Powell than it expected.

Murphy rejected the enhancement, which would have set the range at 27 to 33 months.

He set the range at 21 to 27 months, and sentenced Powell for 21 months.

All defendants but Johnson appealed their convictions to the Seventh Circuit in Chicago.

Tenpas filed a cross appeal, seeking a tougher sentence for Powell.

In 2007, Seventh Circuit judges affirmed the convictions and vacated Powell’s sentence.

“One who uses a position of trust to commit a crime has necessarily abused that trust; the government need not prove actual harm to the interests of those whose trust has been abused,” the Seventh Circuit opinion stated.

“Lawbreaking in the exercise of a position of public or private trust is necessarily an abuse of that position.”

In 2008, Murphy sentenced Powell for 27 months