Friday, February 18, 2011

BingoGate: Moment of Peril, Part Deux

imageLast night, I posted the news that US Magistrate Judge has scheduled a three day hearing on the defendants’ motions to suppress evidence in the US vs MgGregor et al case. The hearing is set to begin on February 28 at the Federal Courthouse on Church Street in Montgomery, and Capel will hear oral arguments on whether to suppress the evidence consisting of the wiretap recordings. I noted that this is probably the government’s greatest moment of peril in the case, because without that evidence, the entire case is almost certainly vaporized.

There’s another reason to be troubled, however.

Part of the government’s legal team is a DOJ career prosecutor named Brenda Morris. In October 2008, Morris was part of the prosecution team that won a conviction against former Alaska Senator Ted Stevens for failure to report gifts—including renovations to his home and other gifts allegedly worth more than $250,000.  However, in February 2009, Morris was cited by District Judge Emmet Sullivan for contempt of court. The citation was for failing to turn over  documents in connection with a FBI agent’s complaint accusing prosecutorial misconduct. In his citation order, Judge Sullivan termed the conduct of the prosecution “outrageous.”

imageDays later, DOJ removed Morris and five other lawyers from the case, and in April 2009, DOJ filed a motion to set aside the verdict and dismiss the charges against Stevens. Judge Sullivan granted that motion and vacated the conviction, freeing Stevens.

The defendants’ motion to suppress evidence is fairly standard pretrial activity in cases like this one. Any good lawyer owes it to the client to get as many of the charges thrown out as possible, and limit the amount of evidence the prosecution can bring to bear against the defendant, so the hearing that starts on the 28th is not terribly unusual.

It’s also worth noting that at least so far, there have been no allegations of prosecutorial misconduct in this case. The defendants’ argument is that the FBI agents did not follow proper procedure in conducting the electronic surveillance and in so doing, improperly eavesdropped on conversations they shouldn’t have been listening to or recording.

Given that there are so many of the same faces showing up in so many of the same, unusual places, suppressing that evidence could have a tsunami-like ripple effect on other rather high profile investigations.

Legal analysts tell me that the prosecution has a better than even chance of prevailing and that Judge Capel will likely let the jury hear the evidence, and that Morris’ role in this case is advisory. While she has prepared and signed several of the prosecution’s court documents, she is not “in the lead” on the prosecution’s team.

Nevertheless, it’s showdown time on February 28th. Either the defendants convince Capel that the government exceeded its authority in conducting the electronic surveillance, meaning the case literally evaporates, or the government prevails and we go to trial in June. Getcha some more popcorn.

Exit question: Should the motions to suppress be dismissed, who starts squirming, sweating and considers a deal, even this late in the game?

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