Friday, March 25, 2011

BingoGate: Capel to rule on admissibility of wiretap evidence

image A friend of this blog attended the afternoon session of yesterday’s hearing on the admissibility of the wiretap evidence in USA vs. McGregor et al. US Magistrate Judge Wallace Capel presided. The hearing was a continuation of hearings held February 28 through March 3, also before Capel.

Defendants in the case want the wiretap evidence suppressed, arguing that the government exceeded its authority, ignored its own protocols and violated the defendants Constitutional rights. They make an interesting argument that since some of the conversations involved were  privileged and should not have been recorded, all of the evidence is tainted and should not be used at trial. I noted very early in this process that this was the moment of greatest peril in the government's case. I also noted that the prosecution team had a bad apple on board in Brenda Morris, who was part of the team that botched the Ted Stevens prosecution in Alaska, in part by mishandling evidence.

Throughout the process of discovery—in which the prosecution shares the evidence it will use at trial—the defense has complained that the government has not been forthcoming or complete in providing the defense with key materials, chiefly the wiretap evidence.

FBI Agent Doug Carr was the headline of yesterday’s event, undergoing rigorous questioning by defense attorneys regarding procedures and protocols governing how investigators chose which calls to listen to and record, and which calls were deemed privileged and “muted.”

At the end of the hearing, Assistant US Attorney Steve Feaga gave the government's summation, told Judge Capel that the technology used to perform the wiretapping was new, and that some mistakes were made, both in how the conversations were tapped in in the discovery process. However, he vigorously denied that this issues “rise to the level of prejudice” and require suppression.

Our friend at the hearing made note of one key exchange between Judge Capel and Milton McGregor’s attorney, Ben Espy. Capel asked Espy if there were any cases he could cite that would allow him to suppress all the wiretaps because of discovery issues. Espy answered that there were not. This is important because as a Magistrate Judge, Capel is less likely to render a precedent-setting decision. Thus, I’m pretty confident now that Capel will deny the motions to suppress the evidence, citing a lack of precedent for doing so, while also noting the problems related to the new technology and discovery issues and chastising the government for its less than stellar performance in complying with his rulings.

Capel’s ruling could come at anytime, perhaps this afternoon or early next week. But note well that I thought the ruling would have been rendered weeks ago, so there’s that…

The defense is almost certain to appeal, and District Judge Myron Thompson will render his decision before the trial date of June 6.

One thing that shouldn’t have to be cleared up, but needs to be anyway: There is a wacko blogger out there claiming that Magistrate Judge Wallace Capel is not eligible to serve as a Magistrate because he isn’t licensed by the Alabama State Bar.

A US Magistrate Judge is a judicial officer of the District Court and, upon the recommendation of a merit selection committee is appointed by majority vote of the active District Judges of the Court to exercise jurisdiction over matters assigned by statute as well as those delegated by the District Judges.  To suggest that Chief District Judge Mark Fuller or Chief Magistrate Judge Susan Walker would allow an unqualified individual to serve as a Magistrate Judge is laughable. To suggest that District Judge Myron Thompson would allow an ineligible Magistrate to handle important pretrial matters in one of the largest cases before his Court is equally ridiculous.

Exit Question: Don’t the people making this claim have something else to do, like tracking down the Russian mob trying to infiltrate Alabama’s political system, or something?

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