The Dallas Morning News
Price judge rebukes office
Prosecutor apologizes for evidence handling; dismissal bid delayed
The federal judge presiding over the public corruption trial of John Wiley Price issued a blistering rebuke to the prosecution team Tuesday for repeated “improper conduct” over the handling of its evidence that jeopardizes the “fundamental fairness” of the proceedings.
And she reserved the option of throwing out the whole case.
U.S. District Judge Barbara Lynn delivered the admonition after another batch of government evidence that wasn’t given to the defense was discovered Monday night. It was the fourth time that has happened.
Lynn denied co-defendant Dapheny Fain’s request for a mistrial, but she deferred a ruling on Fain’s motion to dismiss the charges. And Lynn said she shared the defense’s doubts about whether the government can meet its duty to hand over all evidence in a timely way to the defense.
Prosecutors rested their case against Price, an influential county commissioner, around 12:30 p.m. This is the
eighth week of the trial.
Lynn said she will give defense attorneys broad leeway to introduce evidence from the newly revealed documents, without challenges from the government. Lynn also told the jury about the prosecution’s latest mistakes.
The new evidence relates to surveillance photos of co-defendant Kathy Nealy, as well as records related to her condo near American Airlines Center and her suite at the arena.
Lynn said that when Price defense attorney Chris Knox asks government witnesses about documents he doesn’t have, the prosecution appears to have “eureka moments.” Then, Assistant U.S. Attorney Walt Junker leaves the courtroom to track down the missing documents, she said.
“I regard what’s happening here as terribly inappropriate and very disappointing,” Lynn said.
It’s also contrary, she said, to her “very good” experience with the U.S. attorney’s office.
“This conduct falls way short of that,” Lynn said.
The judge asked U.S. Attorney John Parker to address her concerns, but he was out of town, so his first assistant, Chad Meacham, appeared before her. Meacham apologized for the mistakes.
“We take our discovery obligations very seriously,” Meacham told Lynn.
But he acknowledged that his office “fell short of that here.”
Meacham said the new evidence does not exonerate any of the defendants.
But Shirley Baccus-Lobel, Price’s lead attorney, said one March 2007 document constituted evidence favorable to her client, known in legalese as “Brady material.”
In it, Nealy told her condo association she was allowing Price to supervise construction work done at her unit. It confirms the defense argument that Price has consistently done things to help Nealy over the years, she said.
“That would certainly be the type of document we would want to find,” Baccus-Lobel said.
Access to Brady material is a constitutional right. Withholding it can lead to cases being overturned on appeal.
Tom Mills, Fain’s attorney, asked Lynn to tell the jury that the “credibility and good faith” of the prosecutors and agents should be in question.
Lynn did not include that in her description to the jury of what happened.
“We have no reason to believe that there will not be more documents produced,” Mills said.
He said there’s also no way of knowing whether other government documents exist that will never be given to the defense.
“We believe there has been prosecutorial malfeasance and negligence,” Mills said. “We have no evidence we’re going to get what we should get.”
Lynn said she has the “same apprehension” as Mills about whether prosecutors will continue to find more evidence.
Junker told Lynn he would continue to tell her if any new evidence is found.
“No matter how much I fear the results, when we find the material, we’re going to bring it to your attention,” he said. “I understand the court is upset and angry.”
Most of the condo documents have to do with irrelevant matters, such as window washing and garage cleaning, he said.
But when Junker attributed the errors to the massive amount of evidence in the case, Lynn said it’s not the defense’s responsibility to deal with that.
“This is of the government’s making,” Lynn said.
The judge noted that defense attorneys have repeatedly complained about delays in receiving evidence from the prosecution team prior to the start of trial.
“I don’t care if it’s difficult,” she said. “This was undertaken by the government.”
Nealy, a close Price associate and former lobbyist, is accused of giving the influential commissioner almost $1 million in bribes to help her clients win county contracts and other approvals.
Fain, Price’s top aide, is accused of helping him by lying to the FBI and of contributing to his tax fraud.
Marlo Cadeddu, one of Fain’s attorneys, said during her opening statement that Price began lending money to Fain’s side business in the early 2000s. Fain had worked for Price since 1995 and the two were close friends, she said.
Male Man Sales, which later became MMS Co., sold novelty items and office supplies. It grew quickly, and Fain began having cash flow problems, so she borrowed money from Price to buy inventory, Cadeddu said. But Fain paid him back, she added.
She told jurors they will see a color-coded chart listing all Price loans to Fain in green and all of her repayments in purple, from 2001 to 2011.
Each transaction will have a separate exhibit number so jurors can check for themselves, she said.
Cadeddu said the chart will show that Price loaned more money to Fain than she paid back. Prosecutors said the opposite — that MMS paid Price about $127,000 more than he put into the business.
But Cadeddu said her chart will have transactions that the prosecution left out.
“Not only is it not a benefit, it’s a burden,” she said about Price’s financial contributions.
Cadeddu, who elected not to make her opening statement at the beginning of the trial, mentioned the prosecution’s late turnover of evidence. She also said some of the cash found in a safe in Price’s home in 2011 was profit from Fain’s business.
On the stand
Allen Wilson, the FBI’s lead agent on the case, was questioned Tuesday by defense attorneys for the second day in a row. He was asked why the FBI didn’t do a more thorough analysis of payments from Nealy to Price when agents had their bank records as early as 2005.
Wilson said subpoenas for those bank records were for the City Hall public corruption case he was working on and that he didn’t have bribery evidence against the pair at the time.
He said the confidential Dallas County documents Price leaked to Nealy to help her clients, which came to light in later years, were the “cornerstone” of the bribery investigation. Wilson said it was part of the “access and influence” Price provided Nealy to help her clients.
Knox asked Wilson if it would have made more sense for Nealy to pay alleged bribes to Price in untraceable cash. But Wilson said banks can be used to conceal illegal bribes when someone is getting cash from checks that are deposited, like Price did.
Wilson acknowledged that Price signed cash slips and endorsed Nealy checks, meaning he didn’t try to hide it. But Wilson also said Nealy tried to conceal payments in which she wrote a check to herself and some of that money went to Price “because you wouldn’t be able to tell that.”
“Investigators can’t tell from the bank records who is accepting those payments,” Wilson said.