Hung Jury Could Trip Up Other Corruption Cases

Posted October 16, 2009 at 6:39pm

Last week’s mistrial in the case of former House-aide-turned-lobbyist Kevin Ring could open the door to more defendants to challenge Justice Department public corruption indictments, legal experts say.

“It’s like a traffic violation. If you pull over a bunch of drivers and everyone else sees that, they slow down,— said Stan Brand, a criminal defense attorney and former House counsel. “If it doesn’t look as if the department can convict these cases … it certainly encourages others to contest. It certainly makes [DOJ’s] job harder.—

U.S. District Judge Ellen Huvelle declared a mistrial Thursday afternoon in Ring’s public corruption trial after the jurors declared themselves unable to reach a unanimous verdict.

Brand said the failure to convict Ring, who is accused of providing tickets to sporting events and other gifts to Congressional staff in exchange for assistance for clients of his then-boss, ex-lobbyist Jack Abramoff, could hamper other investigations by encouraging defendants to challenge indictments rather than accept plea agreements.

The recent unraveling of the case against former Sen. Ted Stevens (R-Alaska) compounds the problem for prosecutors in public corruption cases, Brand said.

“There’s no question that the public integrity section is under duress because of the internal issues generated by the Stevens case and the Ring mistrial and everything else that’s happened,— Brand said. “How that will shake out is hard to say. It’s still the responsibility of that section of the department to investigate and bring these cases.—

Bernard Grimm, a white-collar defense attorney with the law firm Cozen O’Connor, said the Stevens boondoggle gives the hung jury in the Ring case more significance.

“If Stevens had not occurred, this would just be considered another mistrial,— Grimm said. But in light of both decisions — an investigation of prosecutorial conduct in Stevens is ongoing — Grimm believes would-be public corruption defendants may have a strategic advantage.

In that case, the Justice Department experienced a serious setback when it acknowledged its prosecutors had improperly withheld evidence from Stevens’ legal team during a 2008 trial and asked a U.S. district judge to vacate a guilty verdict against the Alaska Republican.

Stevens had been charged with filing false financial statements to conceal the receipt of tens of thousands of dollars in gifts, mainly in renovations to his home in Girdwood, Alaska. Days after the trial ended, Stevens lost his re-election bid.

“I think the defense bar thinks they’re in a position of leverage: that they can get a better plea, that they can, in the right case, call [DOJ’s] bluff,— Grimm said.

But Steve Bunnell, a partner at O’Melveny & Myers and former chief of the criminal division of the U.S. Attorney’s Office for the District of Columbia, disagreed, stating that fallout from the Ring mistral will likely focus on technical aspects of the case, in which the Justice Department sought an aggressive use of “honest services fraud— law to indict Ring.

“The Ring case is the only case that’s actually gone to trial— using those arguments, said Bunnell, also a former trial attorney in the Justice Department’s public integrity section.

The Justice Department’s failure to succeed in its expansive application of that law could encourage individuals who remain to be charged in the case — although it is not known if prosecutors will indict anyone else in the long-running investigation — or in similar circumstances to challenge those allegations.

“It is a signal that this case is not so easily concluded successfully, and encourages others who might be similarly charged to contest such charges in the future,— Brand said. “If I were representing someone coming after Kevin Ring, I might say, let’s go to trial.—

To date, the Justice Department has charged 20 individuals in connection with the Abramoff investigation.

Ring is only the second individual to challenge the government in court. Former White House official David Safavian, the first to go to trial in the Abramoff investigation, was sentenced Friday to one year in prison on charges of obstruction and making false statements to investigators after a jury convicted him in December 2008. Safavian was earlier convicted on related charges in 2006, but that verdict was overturned on appeal.

In addition, Fraser Verrusio, a former aide to the House Transportation and Infrastructure Committee under then-Chairman Don Young (R-Alaska), and Horace Cooper, a former aide to then-House Majority Leader Dick Armey (R-Texas), have each indicated they will challenge the Justice Department on their respective indictments.

However, last week’s mistrial in Ring’s case — and even a potential retrial — is unlikely to alter the outcome for those individuals who have already accepted plea bargains in the Abramoff investigation.

“There’s no remedy for them,— Brand said. “They pled. It’s as if they were convicted.—

Among those who have pleaded guilty to a variety of corruption charges but have yet to be sentenced owing to their ongoing cooperation with Justice Department prosecutors are Ann Copland, a former aide to Sen. Thad Cochran (R-Miss.); John Albaugh, chief of staff to then-Rep. Ernest Istook (R-Okla.); Todd Boulanger, a “Team Abramoff— lobbyist and former aide to then-Sen. Bob Smith (R-N.H.); James Hirni, a “Team Abramoff— lobbyist and former aide to then-Sen. Tim Hutchinson (R-Ark.); Michael Scanlon, an aide to then-Rep. Tom DeLay (R-Texas) who founded a public relations firm; Tony Rudy, a “Team Abramoff— lobbyist and former DeLay aide; Mark Zachares, a former Transportation and Infrastructure Committee aide; Trevor Blackann, a former aide to Sen. Kit Bond (R-Mo.); and Robert Coughlin, a former top Justice Department official.

But Brand added that even if those individuals had been able to predict the outcome of Ring’s trial, it wouldn’t necessarily have influenced their own decisions to plead.

“In fairness, all of these cases have slightly different factual predicates and slightly different jury appeal issues,— Brand said. “For whatever reason, Mr. Ring was able to sow some doubt … in the jurors minds.—

Nonetheless, many judges may take into account the penalties assessed in related cases when sentencing a defendant, Bunnell said.

“What happens to Ring does affect the sense of horizontal equity in the investigation,— he said, noting that any outcome, ranging from acquittal to a lengthy prison term, could influence the potential sanctions against others.

Judge Huvelle scheduled a status hearing for today to discuss next steps in the case.

Ring’s attorney, Andrew Wise, has indicated he will seek to delay a potential new trial — which could begin as soon as January — citing unrelated cases addressing honest services fraud law before the Supreme Court. Federal prosecutors have argued, however, that those cases deal with honest services fraud in the private sector and not public office, and should not affect the Ring case.