Options remain in a bid for delay
The government wants the judge to find out if an attorney is 'ghostwriting' for Traficant.
By PATRICIA MEADEand DAVID SKOLNICK
VINDICATOR STAFF WRITERS
CLEVELAND -- Barring some 11th-hour reprieve -- and there are three possibilities -- U.S. Rep. James A. Traficant Jr.'s racketeering trial begins in less than 72 hours.
The 17th District congressman has three options remaining that could possibly stop or delay the trial:
U He could appeal a ruling by U.S. District Judge Lesley Brooks Wells that allows the government to use certain documents some experts say are privileged under the speech or debate clause in the Constitution.
U His request for a temporary restraining order and preliminary injunction to prohibit the trial from commencing could be granted by U.S. District Judge Peter C. Economus. The request is contained in a $250 million civil lawsuit the congressman filed Wednesday against the government.
U He could approach the prosecution team and enter into plea negotiations.
Motions denied: In an order filed Thursday, Judge Wells denied motions Traficant filed late Wednesday seeking to dismiss his 10-count indictment, order the government to "stop intimidating, threatening and obstructing justice" and dismiss the racketeering count.
In an analysis of her decision, Judge Wells said Traficant cited case law that doesn't apply, missed the Jan. 9 deadline for pretrial motions and reiterated claims that she has ruled against several times.
The thrust of Traficant's filings have been renewed attempts to convince the judge that he is the victim of misconduct by the lead prosecutor, Craig S. Morford.
Judge Wells will decide later whether to sanction the congressman, as the government wants, for repeated accusations of prosecutorial misconduct. The government describes his repetition as vexatious.
Getting help? Judge Wells also set aside for the moment a request by the government to figure out who has been helping Traficant write his legal briefs. Since his May 4, 2001, indictment, Traficant has portrayed himself to Judge Wells, the government and the public as his own lawyer.
The prosecution team led by Morford pointed out in a filing Thursday that Traficant's latest motion bore the header Colucci Law Office and its fax number.
"There is substantial reason to believe that all or part of Congressman Traficant's motion actually was drafted by the Colucci law office and faxed to the congressman, who filed it," the government said.
Mark S. Colucci, a Youngstown lawyer, acknowledged that on occasion he has answered some of Traficant's legal questions and has helped the congressman find applicable case law.
"I'm not his lawyer," Colucci said. "If he needs a statute cited, I help find it for him. But look at his motions. It's pure Traficant."
The courts have condemned on ethical grounds the use of an attorney "ghost writing" briefs for defendants who represent themselves, prosecutors said. Such writings are a misrepresentation to the court by the attorney and the defendant, prosecutors said.
The prosecution team wants Judge Wells to conduct an inquiry to find out who has been "ghost writing" some or all of Traficant's filings and take remedial action.
Considering an appeal: Traficant is giving serious consideration to filing an appeal to Judge Wells' recent ruling that limits the congressman's constitutional protection under the speech or debate clause. The clause grants immunity from legal reprisal to congressmen for remarks they make on the House floor, documents inserted into the Congressional Record and legislative acts.
The possibility of Traficant's filing an appeal came after legal experts told Roll Call, a Capitol Hill publication, that Judge Wells' ruling on the clause potentially could be used to overturn a possible conviction, or at least delay the trial.
"I don't know what he's going to do, but he's looking at it after reading the article," said Colucci, who discussed the issue with Traficant. "He's eager to get the trial started. He's in trial mode, but he's looking at it. He's trying to decide whether to appeal based on the article or go full speed. He's going to make a decision very soon."