Thursday, March 17, 2011

BingoGate: No ruling yet on admissibility of wiretap evidence. Cause for concern?

image About two weeks ago, US Magistrate Judge Wallace Capel held a three day hearing on the admissibility of the wiretap evidence in the political corruption case styled USA vs. McGregor et al. The hearing came as the result of motions from defendants arguing that the government had overstepped its bounds and did not follow its own rules during the electronic surveillance phase of the investigation, conducted approximately one year ago.

I noted in mid-February that this was the moment of greatest peril for the government’s case against Milton McGregor, Ronald Gilley, their lobbyists and the legislators they are accused of bribing in order to get a favorable vote on the Bingo bill. That bill would have put a constitutional amendment on the ballot to legalize electronic bingo gambling in the state of Alabama.

The hearings were conducted from February 28 through March 2 and ended more than two weeks ago. In order for his decision to be reviewed by all parties – with any necessary appeals to be filed, hearings to be heard and a District Judge’s decision rendered on appeal – that decision should have come about a week or so ago.  Otherwise, we might see another delay in the trial date.

Should there be a trial, that is.

In recent days, there have been several court documents filed under seal and related to the the hearings two weeks ago, focused on the testimony of FBI Agent Doug Carr, the man responsible for supervising the wiretap phase of the investigation. Since the documents are sealed, we have no idea what legal wranglings are going on beneath the public radar.

To say that the delay in a decision is troubling for the government would be something of an understatement. In the second of the two posts linked above, I note that 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.

Morris has been chastised in open court and in a written decision by District Judge Myron Thompson over her inability to comprehend either the law or the evidence in this case, and I still wonder why she is even within spitting distance of USA vs McGregor et al.

Should Capel decide that the defendants are correct and that the wiretap evidence should be thrown out, the government’s chances of convicting these defendants are obliterated. The wiretaps represent the linchpin of the government’s case, and there is virtually no chance of conviction without that evidence.

Capel’s decision looms large, and the time it’s taking to get that decision is rather ominous.

Extra Point:  Should the evidence be suppressed, here’s what happens to all 13,000 or so of the recordings and their transcripts.

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