The Dallas Morning News
U.S. again fails to hand over evidence
Judge scolds prosecutors for third oversight in a week, will assess situation today
Government lawyers prosecuting Dallas County Commissioner John Wiley Price on charges of bribery and fraud continued Monday to stumble over their own evidence.
For the third time in a week, a batch of government evidence wasn’t turned over to the defense in time, as required.
Assistant U.S. Attorney Walt Junker meekly informed U.S. District Judge Barbara Lynn at the end of the day Monday that he found more than 350 pages of additional evidence.
Lynn said she would deal with it in the morning, but she said this about the government’s ability to produce evidence in a timely way to the defense in the trial: “I am losing confidence.”
The government had been expected to rest its case Tuesday. But now it’s unclear if that will happen given the latest prosecution blunder because the defense will need time to review the new evidence and may have to recall witnesses.
Lynn has been unable to conceal her agitation when repeatedly scolding prosecutors for bungling evidence requirements.
At the start of the day, Lynn chided As-
sistant U.S. Attorney Katherine Miller for a different reason.
Miller asked an IRS agent an “improper question,” the judge said, about a surveillance photograph used as a defense exhibit that is also government evidence in the bribery, fraud and tax evasion case.
Miller asked Special Agent Andrew Bishop, the lead IRS case agent, if the defense could have taken photographs of codefendant Kathy Nealy — who is accused of bribing Price — in or near a silver BMW at a Price fundraiser.
Miller also asked if the photos could have been taken “yesterday,” which jurors might have taken to mean that the defense’s photographic evidence was invalid.
But government agents were the ones who actually took the photographs of Nealy, in April 2011, prosecutors later acknowledged.
“I’m really disappointed in you, Ms. Miller,” Lynn said before the jurors returned from a break.
Lynn instructed the jurors to ignore the suggestion that the defense might have misrepresented details about the photos’ origin.
“You are to disregard any insinuation that these photos were recently taken, or that they were taken by the defense,” Lynn told the jury.
That comes after Lynn told the jury on two separate occasions last week that prosecutors had also failed to turn over evidence to the defense prior to the start of the trial, as required.
The evidence included emails and other documents about five prosecution witnesses who had already testified. Two of them, a former FBI agent and an FBI forensic accountant, were already crossexamined by defense attorneys earlier in the trial.
The government was wrapping up its case last week when prosecutors told Lynn about the batch of newly discovered emails, memos and rough drafts related to Don Sherman, the now-retired lead FBI case agent, and David Garcia, the FBI accountant.
Attorneys for Dapheny Fain, Price’s top assistant, who is accused of helping Price with a bribery scheme, called for a mistrial.
Lynn denied that request, as well as a defense motion to strike the testimony of the two FBI witnesses. But she scolded prosecutors for the rules violation.
Prosecutors are required to give the defense all evidence relating to their witnesses before they testify so the defense can be fully prepared to question them during cross-examination. Defense attorneys said they would have asked more and different questions during their cross-examination of the government witnesses had they seen the additional material produced later by prosecutors.
As a result, Lynn allowed the defense to recall those two FBI witnesses and ask them new questions.
Sherman was requestioned last week. Defense attorneys began asking Garcia additional questions late Monday morning.
None of the additional government documents has so far yielded anything that could be considered a “smoking gun” for the defense. But the situation led to some testy exchanges between the defense attorneys and IRS agents.
Also, Chris Knox, an attorney for Price, questioned Allen Wilson, the lead FBI agent, about his previous contention that surveillance video showed that Price used a Nealy vehicle about 90 percent of time. Wilson agreed with Knox that the FBI’s own logs of the surveillance fell “well short” of that mark.
Knox also elicited testimony that an index of FBI evidence given to the defense had errors about where the evidence came from.
And Shirley Baccus-Lobel, Price’s lead attorney, suggested Price didn’t have to report rental income from his son on his tax returns because the rents he was charging were below market value and about equal to his mortgage payments.
Price is accused of accepting nearly $1 million in bribes from Nealy, a corporate lobbyist who was close to him, to help her clients win county business. Fain is accused of helping Price by lying to the FBI and contributing to the alleged tax fraud scheme.