Judge isn't ready to rule on defense request to dismiss corruption charges against the Portage Mayor
NWI Times
March 15, 2018
http://www.nwitimes.com/news/local/lake/lake-newsletter/lake-news/judge-isn-t-ready-to-rule-on-defense-request-to/article_23db0648-8355-50e3-88b1-a35b75eeaf96.html
HAMMOND — A federal judge said he needs more information to decide whether government investigators mishandled email evidence seized from Portage Mayor James Snyder in their public corruption probe of his administration.
U.S. District Court Judge Joseph Van Bokkelen said Thursday he hasn't seen obvious indications the government took an impermissible look into Snyder's defense strategies, but will give defense and government lawyers until April 9 to provide him additional evidence and arguments.
The judge said he wants to settle this matter quickly to ensure Snyder's bribery trial remains on track for jury selection to begin the week of June 4.
Indianapolis attorney Jackie M. Bennett Jr., who is defending the mayor, argued Thursday morning that government lawyers obtained private discussions of Snyder's strategy — in violation of the attorney-client privilege — during a bulk collection of electronic communications between Snyder and his former defense lawyer, Thomas Kirsch III.
Snyder hired Kirsch in 2014. The government last year named Kirsch as U.S. Attorney for Northern Indiana. Kirsch has recused himself from the case, which now is being managed by the U.S. Attorney's office in Chicago.
"I don't want to accuse anyone of initial misconduct. The government made a mistake ... they don't want to acknowledge. It was highly prejudicial. It is of constitutional dimension," Bennett said.
He has suggested the judge dismiss the indictment against Snyder, or bar local federal prosecutors who have seen the emails from participating any further in the case.
Assistant U.S. Attorney Jill Koster replied that the defense has failed to meet its burden. "There is no harm here of constitutional dimensions."
She argued the U.S. Justice Department filtered out any truly privileged emails through an elaborate three-stage process involving experienced government lawyers familiar with attorney-client privilege, and determined that no privilege protects about 23 emails the defense claims never should have been seen by the government. He previously said 35 emails were at issue.
Bennett said one of the emails now in dispute involves Portage's procedures to purchase automated garbage trucks from Great Lakes Peterbilt, also located in Portage. The FBI subpoenaed all bid packages received by the city for garbage trucks purchased from 2012 to the present.
Bennett said the government is alleging Snyder was steering business to Great Lakes before he was aware of federal interest in the contracts, and then steered business away from Great Lakes afterward to put investigators off his trail.
"The truth was (Great Lakes) was not the low bidder," Bennett said.
Bennett said Snyder is a victim of the government's latest ability to collect a target's electronic communications in bulk, without safeguards that prevent the government from trampling on a person's right to speak privately to his or her defense lawyer.
In the past, when evidence was on printed paper that took more time for investigators to find and collect, a defense lawyer had time to quarantine privileged documents away from the prying eyes of government prosecutors.
"Under the new process the government goes to Google or Yahoo and scoops up everything," Bennett said.
The judge said he didn't see a "smoking gun" in the emails the defense is complaining about, but he is too unfamiliar with the 4-year-old investigation to determine what information is and isn't important. He said he may submit the disputed evidence to a federal magistrate to perform an independent review.
Snyder is pleading not guilty to bribery charges related to city towing vendor and public works contracts, and tax evasion charges related to his private business.
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