Potential privileged emails in Portage mayor's corruption case complicated, expert says
Chicago Tribune
June 01, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-email-issue-st-0603-story.html
A federal judge will soon determine how the public corruption case against Portage Mayor James Snyder will move forward, but issues about seized email communications has left the judge with numerous briefs and hours of testimony to consider.
A former federal prosecutor says wading through these issues is complicated.
Attorneys for Snyder and federal prosecutors have, for months, argued about access to potentially attorney-client privileged emails, and Judge Joseph Van Bokkelen has held four hearings on the matter, including several days spent behind closed doors.
Snyder’s defense attorneys say the charges should be dismissed or the government’s trial attorney disqualified if those email communications were accessed. Defense attorneys have argued that emails seized in 2015 were put through a faulty screening process, according to court documents, and the trial team accessed and used privileged communications.
Tim Morrison, who spent 23 years with the U.S. Attorney’s Office for the Southern District of Indiana, including time as interim U.S. attorney, said the issue is often litigated because privilege is not always set in clear lines.
People often think attorney-client privilege is broader, said Morrison, now an adjunct professor at Indiana University’s Maurer School of Law in Bloomington.
“There’s all kinds of little tests,” he said.
Jackie Bennett Jr., Snyder’s defense attorney, has said, in court documents, that the government took a narrow view of privilege and did not adequately comb through seized emails to parse out that material.
Morrison said there’s three ways that seized communications are screened: by the court; by a “special master” appointed by the court; or by government agents known as a “taint team.”
In Synder’s case, federal investigators set up a three-phase review of the seized emails. Snyder’s emails were first screened by agents in Washington, D.C., then by two agents in the FBI’s Merrillville field office, and finally by an assistant U.S. attorney who wasn’t involved in the case.
Snyder’s defense attorneys have sought to show that he “taint team” process didn’t adequately screen out privileged communications and the trial team accessed those communications.
Morrison said if that happens, it depends on what federal prosecutors make of the information.
“It’s not good to have that but it’s not the end of the game,” Morrison said.
The discussions have focused on more than 30 emails that went to the trial team, according to court documents, but Bennett has said those should have not made it through the screening process.
Bennett, in court documents, said one of those communications was between Snyder, two city employees and copied to Kirsch about the bidding process used ahead of awarding a contract to Great Lakes Peterbilt, which is the subject on one of charges against the Portage mayor.
The defense says that information was prepared to aid in Snyder’s defense and should have been considered privileged.
Assistant U.S. Attorney Jill Koster refuted that description, according to court documents, and said the information in that email would otherwise be publicly available.
Another email discussed in court documents contains information from a prospective witness in the case against Snyder.
Cassandra Teesdale, a former employee of Snyder’s at First Financial Trust Mortgage, said after being interviewed by federal agents in 2014 she spoke with Kirsch about questions posed during that questioning, according to an affidavit, and was then asked to put her answers in writing.
Teesdale said, in the affidavit, she sent those answers to Snyder, who would have passed that document to Kirsch.
Prosecutors say that a disputed email was used during the grand jury phase of the case to question a witness.
“The witness’ testimony differed from the account she had given defendant in the email so the government showed the witness the document and inquired about the witness’ changed recollection,” Koster said in court document. “Other than that, the government does not recall making investigative use of any of the other disputed emails.”
Context is important in exploring these questions, Morrison said, and communications that look mundane could mean more when looked at in a whole strategy.
Morrison said if a client emails an attorney, discussing litigation, and mentions a potentially damaging statement made to a person asking what to do, noting the government might be aware of that potential witness, that would be privileged.
That email communication then comes into the possession of the government. Morrison said if the government already knew about that potential witness, the email would have little effect.
“It’s not really adversely affecting anybody,” Morrison said.
If the government did not know about that potential witness, Morrison said, and an investigator goes to interview that person, the email communication had more consequence.
“That is something that would be important,” Morrison said.
What distinguishes those situations is if the government gleans information from potentially privileged communication that it didn’t have independently.
“Then there’s trouble,” Morrison said.
No comments:
Post a Comment