Threshold Resistance (19 page)

Outside the courthouse, media gathered to report the outcome of the trial and interview the jurors, who were more than happy to get their fifteen seconds of fame on CNN. One juror, however, was reluctant to chat. Lydell Durant had held out as the one remaining
“not guilty” vote until the bitter end. Crusty
New York Post
columnist Steve Dunleavy (I find him refreshingly irreverent) spotted Mr. Durant's troubled expression and pulled him around the corner for an exclusive conversation. The headline on Dunleavy's column the next day read: “In My Heart, I Don't Believe He Is Guilty.” The troubled juror told Dunleavy, “I think it was the wrong verdict. I didn't sleep last night; I can't tell you what was going through my mind in the jury room, but deep down, I feel Mr. Taubman was not guilty, and I am very sad.”

Not until Christopher Mason's book was published more than a year later would we find out what was going on in Mr. Durant's mind in the jury room: He was being “coerced” by the other jurors. Juror Glenn Forrester proudly admitted to Mason in an interview: “We
did
coerce him.”

As an American, I'm sorry Lydell Durant had to face that kind of treatment by his fellow citizens. As the guy who ended up in jail because of this violation of one of our most sacred civic responsibilities, I'm even more sorry.

Along with my lawyers and family, we drove uptown to my office at 712 Fifth Avenue. Sentencing was set for April 22. We all gathered in the conference room to consider an appeal and try to make sense out of what just happened. All I wanted to do was apologize to my wife, children, and grandchildren. I was leaving them with a terrible burden. Our name—their name—had been damaged forever. My father never did such a thing to me. “I'm sorry for what I've done to you.”

As one, they insisted that they couldn't be more proud of me, our name, and how I had fought the good fight. They found hope in the appeals process and professed faith and trust in our judicial system to right this wrong. I wish I could have been as optimistic. Our criminal justice system is the best in the world. I still believe that. But it didn't work for me.

That afternoon I made many difficult phone calls. I wanted to
resign immediately from the corporate boards I sat on and the civic organizations I helped lead. The last thing I wanted to do was to put them in an awkward position. All accepted my resignations, reluctantly and graciously, and most expressed hope that my appeal would be successful and I would be able to rejoin them. Stepping away from my role as chairman of the Taubman Company after more than fifty years was painful. It was in good hands with my son Robert at the helm. But to know that I would no longer be a part of the company I founded with my father—the company that had accomplished so much in communities across the country—was especially hard for me.

At the sentencing hearing a few months later, I was asked by Judge Daniels if I had anything to say. I had plenty to say, but there was no way I could say it to him. My lawyers had explained that anything short of a confession of guilt and an expression of remorse would be counterproductive. Here's the catch-22: to admit guilt after defending my innocence all these months just to lessen the chances of jail time would subject me to charges of perjury.

Hey, I wasn't guilty. And I wasn't about to beg for mercy. Sure, I was sorry this all happened. Sorry I had ever met with Sir Anthony Tennant. Sorry I hadn't listened to my closest partners when they warned me about Dede Brooks. Sorry Judge Daniels and the Justice Department had made it impossible for me to get a fair trial. Sorry that the talented, hardworking people at Sotheby's had to suffer.

The probation officer's report to the judge recommended no jail time, just probation and a fine. So I respectfully declined Judge Daniel's kind offer and kept my thoughts to myself.

My wife, Judy, was with me and prepared for the worst. Chronicling that day in court for
Vanity Fair,
Dominick Dunne wrote:

Ignoring the probation officer's recommendation, which is rare in criminal cases, Judge Daniels sentenced me to one year in prison. Upon hearing the sentence, Bob Fiske jumped up and requested that it be revised upward to a year and a day. Boy, I thought, Fiske should be on my side! As it turned out, the extra day qualified me for time-off consideration, making my time in prison more like ten and a half months. Judge Daniels accepted our motion.

A week after my sentencing, Judge Daniels let Dede Brooks off with absolutely no jail time. Her punishment: six months' house arrest in her midtown apartment. The “flipper” had added another notch to his belt.

It was no surprise to me when our appeal to the United States Court of Appeals for the Second Circuit went nowhere. “Al, courts don't like to overturn jury decisions, no matter how flawed,” an attorney friend explained to me. But we tried. We even added Seth Waxman, former solicitor general of the United States, to our legal team. The three-judge panel hearing our appeal found in July 2002 that all sorts of errors had been committed during the trial—all of it “harmless.” My focus now was on preparing to go to prison and somehow make the best of it.

A final thought about the trial. Much has been said and written in criticism of my attorneys' strategy and presentation. At times I must admit I felt they were far too gentlemanly, businesslike, and cautious to connect with the jury. For example, Rosa Parks, the late, courageous civil rights pioneer, was agreeable to appearing on my behalf as a character witness at trial. I had become part of Rosa Parks's life through a terrible incident in Detroit, where she lived from 1957 to her death in 2005. In 1994, this icon of the civil rights movement was attacked and robbed in her home. Judge Damon Keith called me the next day to see if we could arrange for safer living arrangements. Max Fisher and I immediately got her an apartment in our Riverfront Apartments and made sure she never had to worry about rent or robbery ever again. It was an honor to get to know this heroic, graceful woman and to contribute in a small way to her safety and comfort for the last eleven years of her life. Would her presence in court have made a difference? We'll never know. My legal team considered her participation “over the top.” Looking back, I think I could have used the help.

I didn't like Judge Daniels. But my anger against him didn't really develop until years after the trial when I read a front-page story in the December 6, 2004, issue of the
New York Times.
The headline read: “Judge's Decisions Draw Notice for Being Conspicuously Late.” Here are the lead paragraphs of the story by reporter Benjamin Weiser:

Judge Daniels was prompt in my case. Unfair, I felt, but punctual. There was plenty of press attention to spur things along. But in cases dealing with everyday folks out of the media spotlight, his inattention has been outrageous:

In comparison to how others have fared in front of Judge Daniels, I'm a lucky guy!

O
n August 1, 2002, I was supposed to report to the Federal Medical Center in Rochester, Minnesota. That's a fancy name for a federal prison where inmates with medical conditions are held for a time before returning them to traditional facilities. The center is loosely affiliated with the nearby Mayo Clinic. At seventy-eight years old, I wasn't in the best of health, having suffered several minor strokes and battled a number of lesser ailments. As rough as they had been with me in court, the Feds didn't want me to die in jail.

A few days before my last day of freedom, Chris Tennyson called to alert me to a strange media request.

“Mr. Taubman, you're not going to believe this. Several news magazines and wire services are asking what time you plan to arrive in Rochester. They want to make sure they get great photos of you checking into prison.”

What a way to make a living.

“Obviously, we don't want to give them anything. Should we find out if there's a back door,” asked Chris, “or maybe you show up before the sun comes up?”

I appreciated Chris's concern. No way did I want to be on the cover of
Business Week,
entering prison. But I had a better idea.

“I'll check in a day early.”

There was silence on the line. I think Tennyson had thought I'd gone crazy. After all, who would ever want to push up the date of his incarceration? After what seemed like an eternity, Chris promised to check to see if such an arrangement was possible.

The warden was happy to accommodate my new arrival date. So, on the morning of July 31, I thanked my household staff and asked them to hold down the fort, kissed my wife good-bye and boarded my Gulfstream IV for the less-than-one-hour flight from Pontiac to Rochester—a day earlier than anyone in the media expected (boy, were they disappointed). Accompanying me were my son Bobby and my attorney, Jeff Miro.

Most people have to think a moment before they can point to the worst day or moment of their lives. Not me. Walking through the gates of the prison I could not leave for the better part of a year was hands down the most sickening experience of my life. I wasn't so much frightened as I was numb. I felt mentally prepared, reaching back to my years in the army during World War II for inner strength. At least no one in the Federal Medical Center was going to shoot at me or drop bombs in my direction. If this was what my government wanted me to do, I would do it, just as I had done back in 1942. I lived through that; I can live through this. That was my attitude going in.

I entered a room in the guardhouse. They took everything I had away from me, including the clothes I was wearing, and put my possessions in a box and sent them home. As I stood there naked, a guard inspected every body cavity. I was given recycled army attire to wear—no shoes, socks, or belt—and led to another room inside the compound, beyond the two forty-foot fences, which were topped with barbed wire. These towering barriers were separated by an asphalt drive. A security vehicle constantly patrolled between the fences, just in case some unlucky inmate made it past the inner fence.

I was directed to change into another outfit of army surplus garb. This time they did allow me to wear ill-fitting slippers. In still another building, I was taken to a downstairs room where I was photographed, issued the number 50444-054, and outfitted in a better-fitting shirt and trousers, along with underwear, socks, and shoes.

Then I was taken to a room with seven beds. This is where I would sleep, I was told, during my three to six days of orientation. With me were two other recent arrivals. One was from Hawaii. The other was a big, strong thirty-six-year-old African American named Ben. He was from Cleveland, and right away we got along. Ben, who had already been in the prison system for eleven years, was serving a twenty-year sentence for a drug-related conviction. He was intelligent, had a good sense of humor, and from our first day together in Rochester he became my advisor and protector, which I appreciated very much.

After the orientation period, I was assigned to my permanent room. It really wasn't what you think of as a cell. It was more like a hospital room, with a standard door. My roommate was a thirty-nine-year-old Mexican-born fellow from California. He was serving the last three years of a fifteen-year sentence for dealing drugs. We got along fine. In fact, he repeatedly asked me to adopt him. His plan for when he got out was to become a member of the Taubman family. This was a complicated matter, I explained to him. It would require a thorough review by my children, who would have to decide if they wanted him as their brother, and by my estate trustees. We discussed his proposal many times—he would wake me up in the middle of the night to repeat the merits of his plan—but we never closed the deal. (I still get mail from him, though. He ends his letters: “Best to my family and to stepmom Judy.”)

One thing you learn right away as you interact with the other inmates is to never show any signs of disrespect. An inadvertent bump in the lunch line may be interpreted as a major personal affront. Pride
is the only thing inmates have left to protect—everything else has been taken away. The guards regard you as a number, not a person. Your schedule is determined, your every move directed. Since my release, many friends have asked me if the prison administration wanted me to teach a course on real estate or business. Believe me, such enrichment and interaction are not high priorities. I was never asked to do anything other than show up for roll calls and follow directions.

Essentially, the prison is a human warehouse, plain and simple. Prison officials are in the human warehousing business, storing people away for a period of time. From my experience, there is nothing correctional about the environment of a federal prison. Not even close.

The warden was a good man, and he did the best job he could within the system. He wasn't given a lot to work with. Even though Rochester was an all-male facility, the prison's medical director was a gynecologist! And the budget for food, I learned, was $2.52 per day for each inmate. Thank goodness we had a clever food administrator, who did wonders with the crap he was given (the inmates were the cooks). Almost every can of corn, peas, and soup he worked with had an expired “must be eaten by” date on the label. If something should have been consumed by July, we were eating it in January. It really was like being back in the service!

Everything had strict limits, and you had to understand the boundaries to get along. For instance, there was a point system that determined the number of visitors an inmate could have. We got fifteen points per month. Each weekday visit counted as one point. Visits on weekends or holidays counted as two. My son Bobby set up an elaborate schedule of visits by my friends and family (each of whom had to be prescreened and approved by the Bureau of Prisons), making efficient use of the allotted points.

Phone time was also carefully supervised. Every conversation was
recorded, and it was a no-no to discuss business. The people you called also had to be preapproved by prison officials, and you were not permitted to transfer a call or patch in another party. That's the only rule I ran afoul of while in the big house. While talking with my assistant Melinda Marcuse one day, I learned that my dear friend Max Fisher, who was ninety-three at the time, had been rushed to a hospital in Palm Beach. I had to talk with him to make sure he was all right.

“Melinda, transfer me to the hospital. I have to talk with Max.”

“I can't do that, Mr. Taubman.”

“I have to talk with Max!”

“One moment, sir.”

That's what I heard played back to me at my disciplinary hearing the next day. My counselor, who was a decent guy, made sure I had an opportunity to tell my side of the story. I pleaded my case but lost my phone rights for seven days. Believe me, that was a major punishment. When you lose your freedom, every contact with the outside world is precious.

On that score, I was truly blessed. My wife, children, their spouses, my grandchildren, and friends made regular pilgrimages to Rochester. They came with love, conversation, quarters for the vending machines, news of the wonderful world outside the walls, and hope. My granddaughter Ghislaine took her first steps during one of these precious visits. When my wife arrived one day with the medical device I need to breathe at night (I was suffering from sleep apnea), she was told that the only way they could accept it was through the mail. On her way back to the plane that evening she dropped the machine off at a UPS store in Rochester and sent it overnight back to the prison. It eventually got to me, and I slept much better.

Plenty of mail arrived daily. The personal notes were uplifting. I received correspondence from friends, customers, employees of my companies, and folks I had never met from all over the world. Many
wrote several times. Tom Monaghan, founder of Domino's Pizza and former owner of the Detroit Tigers, whom I hadn't heard from in years, took the time to check in with me on a regular basis with his best wishes and prayers. Nancy Kissinger was kind enough to send me pictures of her new puppy. The newspapers and magazines also helped keep me sane. It really is a different experience reading
Art & Auction
or
Vanity Fair
in a federal penitentiary.

Not everyone in the Federal Medical Center was so lucky. Close to 90 percent of the men I met—most were African Americans or Latinos—were serving time for nonviolent drug-related offenses. Thanks to mandatory sentencing guidelines, they were taken away from their families and communities for outrageous lengths of time—many for more than twenty years. In almost every case, their wives had divorced them, their children had lost touch, and their communities had forgotten them. They received no mail, welcomed no visitors, and had little hope.

My worst day in Rochester—other than the day I walked into that guardhouse—came in December when Attorney General John Ashcroft sent out a directive limiting the discretionary authority of wardens and other law enforcement officers. Concerned that criminals were getting off too lightly, Ashcroft mandated that all prisoners must serve at least 90 percent of their sentences. Until that point, all indications were that I was going home before my birthday at the end of January. Ashcroft added at least five and a half months to my stay.

The most distressing thing to happen in this period had nothing to do with prison. On November 13, 2002, just a few months into my stay in Rochester, the Simon Property Group launched a hostile takeover attempt against Taubman Centers, Inc. Political scientists note that democratic nations rarely attack other nations. In the business world, it used to be true that family businesses didn't attack other family businesses. So much for history. Simon had locked itself
into an acquire-or-die growth strategy and saw us as easy prey. David Simon, son of company founder Melvin Simon, told my son Bobby that the action was intended to strike at us while we were most vulnerable. They were betting that the embarrassment of my conviction would weaken the company's resolve to insist on fair value for its shares. Keep in mind that Mel and his brother Herb Simon had been friends of mine—at least I thought they were—for decades. In fact, just a few weeks before Simon Property Group's attack, I received a very warm letter from Mel.

He let me know that he was in a “funk” about my jail sentence and expressed how badly he felt for me and my family. Graciously, he pledged to be “available to do anything you request of me.” What a warm and, I thought at the time, heartfelt letter.

Before I could pen a response, the
New York Times
reported Simon's unsolicited $17.50 offer for Taubman Centers' shares. Either David Simon hadn't shared his hostile intentions with his father (who is cochairman of the Simon Property's board), or Mel's letter was a shamefully disingenuous communication. The only other explanation is that his son's reckless strategy had left Mel feeling guilty and embarrassed. I'd like to give Mel the benefit of the doubt.

The Simon offer was pathetically low and easy to reject. Our five independent directors—S. Parker Gilbert, Jerome Chazen, Allan Bloostein, Peter Karmanos, and Graham Allison—were certainly no shrinking violets. Parker is a former chairman of Morgan Stanley; Jerry headed Liz Claiborne, Inc.; Alan was vice-chairman of May Department Stores; Peter founded one of the most successful high-tech companies on the planet (Compuware); and Graham built Harvard's Kennedy School into an international academic powerhouse. In addition, Taubman Centers' chief financial officer, Lisa Payne, who had joined the company from a senior position at Goldman Sachs, brought valuable Wall Street experience to her role on the board.

But David Simon had done his homework. He rallied investors
who owned stock in both Simon and Taubman to push for the fire sale acquisition of our premier properties—a portfolio that had outperformed Simon's centers for decades. Ignoring the interests of Taubman shareholders who owned no Simon stock (like me), this “coalition of the willing” wanted to use our company to strengthen the inconsistent Simon portfolio, which was heavy with underperforming, at-risk properties. When
Detroit Free Press
business columnist Tom Walsh looked up the largest owners of Simon and Taubman stock:

But as Walsh noted, the obligations of the board were clear: “They must act to maximize the value of the company on whose board they serve.”

The battle got very ugly. Simon and their attorneys threw every conceivable strategy at the wall—except offering fair value—to negate my family's voting rights and eliminate a formidable competitor. My son, who was prohibited by the Bureau of Prisons from discussing his business strategy with me while I was in Rochester, did an outstanding job keeping the company focused on its important work. Thanks to Bobby's leadership and all the employees' resolve, the company kept its eye on the ball. Simon's final offer of $20 per share was nowhere near even the most conservative estimates of the Taubman portfolio's asset value. After draining both companies' resources for eleven months, Simon, which had been joined in the bat
tle by Australian-owned Westfield Properties, would ultimately withdraw its offer on October 8, 2003.