Not only has the prosecution lost the conspiracy half of its case against former Carter budget director Bert Lance, it also is having trouble with witnesses from the banking industry whose testimony has a tentative quality.
US District Judge Charles A. Moye Jr. threw out April 3 the conspiracy charge against Mr. Lance and his three co-defendants. The judge ordered a directed verdict of acquittal on the conspiracy charge, saying: "I don't believe evidence would support the finding of a generalized conspiracy."
The prosecutors still express confidence they can win criminal convictions on some or all of the remaining 21 counts against Mr. Lance. These include: obtaining loans without truthfully stating his debts, making loans to family and friends without obtaining proper credit information, and trying to deceive private bank and federal officials about the purposes of certain loans.
One problem the government lawyers have had, however, is that Georgia bankers , and even those from out-of-state called on by the prosecution, have shied away from strong, clear-cut statements about Mr. Lance's dealings with them.
"It's what's known in the trade as the 'good ol' boy' defense," says Glenna Stone, former US Justice Department prosecutor here on bank and other cases and now a professor of law at nearby Emory University.
Says an Atlanta banking attorney familiar with the case against Mr. Lance: "No one wants to be the guy who convicts him; he has too many friends."
However, this attorney adds, most bankers do not approve of the way Mr. Lance did business and are angry at him for the bad publicity he has given banking.
This attorney (who asked not to be identified) says he doubts Mr. Lance will be convicted on any of the charges. The government should not have brought the case to trial without stronger witnesses against Mr. Lance, he suggests.
With the conspiracy charge -- which took up 47 pages of the 71-page indictment in the case -- dismissed the defense will attempt to show that the various loans made and obtained by Mr. Lance were not done with "intent to injure and defraud the banks" as alleged.
Numerous character witnesses are expected to be called by the defense, and Mr. Lance is also expected to testify on his own behalf.
Judge Moye already has stated in court that the prosecution does not have to show any "permanent loss" to the banks involved as a result of Mr. Lance's actions. But the prosecution must prove criminal intent on his part -- that is, that he knew he was breaking banking laws for his own gain. Prosecutors are counting on Judge Moye to instruct the jury to consider the possible harm to the banks involved -- even if no actual harm occurred from Mr. Lance's transactions.
Among the loans Mr. Lance allegedly made without full credit information or collateral are these: $45,000 to his wife; $100,000 to his mother-in-law, and $ 80,000 to his sister-in-law.