Tulsa World
August 26, 1983
Attorneys Seek New Trial for Draper, Fitzgibbon
By Rob Martindale
Of the World Staff
MUSKOGEE – Attorneys for Dan Draper Jr. and Joe Fitzgibbon filed a motion for a new trial Thursday and charged that jurors made up their minds before the defendants testified.
Former House Speaker Draper, D-Stillwater, and former Majority Leader Fitzgibbon, D-Miami, were claimed media reports following the guilty verdict indicated one juror said the panel make up its mind before Draper and Fitzgibbon took the witness stand.
Mark Green, son of Draper’s attorney, said it is standard procedure for a judge to instruct the jury to hear all the evidence before going into deliberations and reaching a verdict.
….convicted Aug. 18 in U.S. District Court of mailing bogus absentee ballots in an Adair County election involving Draper’s father.
Draper was convicted on one conspiracy count and 10 counts of mailing bogus absentee ballots. Fitzgibbon was convicted of one conspiracy count and eight counts of mailing bogus ballots to the Adair County election board.
One juror spoke to Muskogee Phoenix newsman Jim East after the verdict on the condition his name wouldn’t be used. The Associated Press reported.
Asked whether the testimony by Draper and Fitzgibbon helped the defense, the juror said: “At that point, it was too late. I don’t think he (Draper) hurt himself, but Fitzgibbon did. He didn’t know north….
Both were suspended from public office following the convictions.
Defense attorneys Thursday also renewed their motion for a directed acquittal from U.S. District Judge Frank Seay.
U.S. Attorney Gary Richardson said he would file a response to the defense motions within 10 days.
Bruce Green, Draper’s attorney, from south.”
The juror, East reported also said: “We had one person who was a holdout for about two hours. She didn’t understand the law. She thought it (the conspiracy) had to be in black and white.”
The juror, East reported, said the panel took seven hours to reach the verdicts because they read “every bit” of the 20-page indictment and examined all the evidence, including dozens of documents concerning absentee ballots.
Defense attorneys also claimed that the government brought in evidence outside the scope of the grand jury indictment against Draper and Fitzgibbon.
The key government witnesses included members of the Barney Girdner Jr. family, who admitted they had falsified absentee ballots in Adair County for three generations.
They said voters were paid $5 to apply for absentee ballots which were voted in favor of Draper’s father and sometimes marked and signed by members of the Girdner family.
The Drapers sought Girdner’s help in a House Dist. 86 runoff election after Girdner was among six candidates defeated in the primary election. Draper’s father was defeated in the runoff.
The defense also said the government shouldn’t have been allowed to bring in testimony about whiskey and wine being given to prospective voters.
Girdner, who pleaded guilty to a conspiracy charge, said he and Fitzgibbon gave liquor to voters and encouraged them to vote for the elder Draper.
The defense motion also complained that the law doesn’t require that ballots be notarized in the presence of voters.
Draper testified that he received over 30 absentee ballots on Sept. 14 at the Girdner grocery store after they had been stamped by notary public Faye Newton.
Draper said he either had his secretary mail them from Stillwater or he mailed them from Stilwell four days after he received them.
The ballot envelopes were postmarked Stilwell and bore the date Sept. 18.
The runoff election was held Sept 21.
The Girdners said the ballot packets were unsealed when given to Draper. Draper said they were sealed.
Another complaint of Draper’s attorneys concerned testimony about the 1981 realignment of the House district by the Legislature.
Richardson said in his arguments that the district was realigned so it would include Colcord the elder Draper’s home town, and allow the House speaker’s father to run in 1982.
Richardson said Draper appointed the House committee that proposed the realignment.
The defense also claimed that the defendants were prejudiced when the government warned that a defense witness should be advised of her legal rights before testifying in the case.
Federal agents were investigating Girdner for suspected vote fraud when he was asked to help Draper.
Draper claimed he didn’t know Girdner was the target of the probe and his attorneys said they should have been given the FBI file on the probe prior to the trial.
Defense attorneys have also charged that the jury shouldn’t have heard testimony about Fitzgibbon driving Frank Grayson, who lives in Sequoyah County, to an Adair County precinct where Grayson voted.
Grayson was convicted on federal charges of racketeering and prostitution conspiracy when he was district attorney at Miami in Ottawa County.
Grayson and Fitzgibbon were friends when both lived in Miami, Grayson testified.
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