The government has made a third request for evidence the congressman intends to use at trial.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- Noting U.S. Rep. James A. Traficant Jr. already has accepted help from "shadow counsel," prosecutors want a federal judge to give him a lawyer everyone can see to deal with a complex legal issue.
The request appears in an eight-page response the government filed Tuesday in U.S. District Court to a motion Traficant filed Aug. 20. The 17th District congressman's motion seeks to suppress evidence he claims is privileged under the speech or debate clause in the Constitution.
The clause allows members of Congress to say virtually anything on the House floor without fear of legal reprisal. The immunity also extends to any documents they insert in the Congressional Record.
Traficant is under indictment on 10 counts and, though not a lawyer, has been adamant about defending himself at trial in February. He has rejected U.S. District Judge Lesley Brooks Wells' strong suggestion to get a lawyer or, at the very least, legal advisers.
Traficant, instead of specifying which documents he believes are exempt under the speech or debate clause, makes a blanket request to throw out all prosecution evidence related to his office, the government said Tuesday.
Craig S. Morford, Bernard A. Smith and Matthew B. Kall, the assistant U.S. attorneys prosecuting the 60-year-old congressman, said they had expected he would "conduct a meaningful review" of the documents they gathered and lodge objections on a document-by-document basis.
Judge Wells had set Oct. 15 as the deadline for Traficant to file the suppression motion and Oct. 23 for the government's response.
Complex legal issues: Because Traficant failed to craft his motion properly -- and given the complex nature of the legal issues at hand -- "the government respectfully requests that the court consider appointing standby counsel to advise Congressman Traficant regarding this one issue," prosecutors said Tuesday.
The government pointed out that, although it appears Traficant had assistance from "shadow counsel" with a 21-page disclosure motion he filed Aug. 20, it's clear that no lawyer helped him with his four-page motion to suppress evidence based on the speech or debate clause. Anyone representing Traficant must file a notice with the court, the judge has said.
The Vindicator reported last week about a curious footnote in the 21-page disclosure motion that refers to the "undersigned counsel." Since the nine-term Democrat couldn't have been the undersigned counsel, the newspaper checked and found that Boardman attorney John B. Juhasz authored not only the footnote but the entire motion.
Juhasz said he did not give the motion to Traficant. The lawyer said his motion, designed for a state court, had been modified slightly by someone to include a reference to the federal rules of criminal procedure.
"There's nothing I can do about it," Juhasz said last week. "Motions aren't copyrighted."
Traficant, meanwhile, also has requested that Judge Wells have an evidentiary hearing to determine what documents and exhibits the government intends to use at trial may fall under the speech or debate clause.
Former U.S. Rep. Dan Rostenkowski of Illinois, now a convicted felon, had tried for an evidentiary hearing, too, but was denied, the government said. The court in Rostenkowski's case ruled that the member of Congress asserting the speech or debate privilege has the burden of proof, not the other way around.
Want clarification: Federal prosecutors also told Judge Wells that Traficant isn't clear about what evidence he wants thrown out.
Does he mean the 233 documents the government received from third-party sources and intends to use at trial? Or is it everything produced so far and turned over to him as part of the discovery process?
Traficant has claimed that all documents, evidence and exhibits given to him July 24 should be suppressed. The government delivered 37 boxes with 99,880 documents, 22 video and 453 audiocassettes that day.
The government, for the third time, said Tuesday that Traficant has failed to turn over "a single piece of evidence" he intends to use at trial.
"The government formally notifies Congressman Traficant that his continued failure to comply with his discovery obligations will force the government to move to exclude any such evidence at trial," prosecutors said.
In another motion, prosecutors, in an exasperated tone, said Traficant keeps asking for more evidence in his case without letting the judge rule on his previous motions that ask for the same things. He already has much of what he requests in the repetitive motion, the government said.
Protecting evidence: The congressman, prosecutors said, also has not waited for Judge Wells to rule on the government's desire to turn over certain evidence only if she issues a "protective order" that would prohibit him from sharing it with anyone, including the press.
Some of the evidence the government is willing to turn over now, if protected, is typically not released this far away from trial, such as witness statements.
Traficant has argued that the protective order violates free speech.
So far, three businessmen have pleaded guilty in the Traficant case and are expected to testify for the prosecution.
Confusion: The congressman threw prosecutors for a loop with one request in his disclosure motion that asks for "negative exculpatory evidence." Exculpatory means evidence favorable to the accused.
Prosecutors, taking a stab at what he meant, quoted a 1985 case in which a judge accused of taking bribes to fix cases wanted to introduce evidence to show that he didn't take a bribe from someone who had attempted to bribe him.
Evidence that a judge did not accept a bribe on one occasion "demonstrated little or nothing" about his intent on the charges in his indictment, the court ruled.