06252018 - News Article - Prosecutors defend process used to screen indicted Portage mayor's emails

Prosecutors defend process used to screen indicted Portage mayor's emails
Chicago Tribune
June 25, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-prosecutor-brief-st-0623-story.html

In a Friday filing, federal prosecutors said indicted Portage Mayor James Snyder has offered no proof that potentially privileged material reviewed by the trial team affected its corruption probe.

Assistant U.S. Attorney Jill Koster said that Snyder has not presented any evidence that shows his email communications were used in any improper way during the investigation, according to court documents, and that a judge should not disqualify the prosecutors on the case or dismiss any charges against the Portage mayor.

“Defendant has failed to establish that the 38 disputed emails are privileged or that he has suffered any actual prejudice resulting from the government’s taint team procedure,” Koster said. “Defendant’s motion should therefore be denied.”

Snyder’s defense attorneys say the charges should be dismissed or trial attorneys 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.

“In keeping with his other filings in the aptly described ‘months-long detour,’ defendant’s brief attempts to unnecessarily complicate the issues,” Koster said.

Koster said the judge only needs to consider two things: if any of the contested emails were privileged attorney-client communication or work product, and if they are, whether the disclosure to the trial team created any prejudice toward Snyder’s case.

“If the answer to either question is no, defendant’s motion must be denied,” Koster said.

Snyder and John Cortina, of Kustom Auto Body in Portage, were charged in November 2016 with allegedly violating a federal bribery statue. Federal prosecutors said the mayor allegedly solicited money from Cortina and “Individual A” and gave them a towing contract for Portage.

Snyder received an additional bribery indictment for alleged accepting $13,000 in connection with a Board of Works Contract, and allegedly obstructing internal revenue laws.

Snyder and Cortina both pleaded not guilty to the charges, according to court documents.

Since February, Snyder’s defense team has filed motions accusing federal investigators of setting up a faulty screening process to review seized emails, and Judge Joseph Van Bokkelen heard evidence during three days of closed-door hearings on the issue.

“The court can and should assume that defendant has chosen to cast aspersions on the investigation into his criminal conduct instead of addressing the legal issues raised by his motion because he knows the latter lack merit,” Koster said.

Jackie Bennett Jr., Snyder’s defense attorney, said the flawed screening process warrants the recusal of the trial team who was potentially exposed to attorney-client privileged material, according to court documents filed Friday.

Bennett said the procedure used by federal investigators was designed give broader access to the communications to the government, according to court documents, and limit protections for privileged communications between Snyder and his attorneys.

“Nothing forced the government to adopt the procedure used here. Instead of adopting a procedure utilized in previous cases, or one recommended by the U.S. Attorney’s Manual, the government designed a procedure that maximized its own convenience — a procedure whose benefits accrue solely to the government and whose costs accrue solely to Snyder and similarly situated defendants.”

Bennett said the process used in the Snyder case failed to use comprehensive search terms during the first phase to better filter the communication; used FBI agents without law degrees to screen for privileged material; and finally duplicate communications were flagged as privileged and non-privileged during the third stage and were passed to the trial team.

“The notion that there were three layers of protection for Snyder is categorically false,” Bennett wrote.

Koster said out of the 109,000 emails seized and screened, the defense team has taken issue with the classification of 38 communications.

None of the testimony presented has shown that the disclosure of those 38 emails prejudiced Snyder, Koster said.

“The content of the messages contained neither requests for, no the provision of, legal advice, much less any discussion of trial strategy,” Koster said.

Koster said several communications were tagged “not privileged” during earlier stages of review but later tagged “privileged” during the third phase. Koster said none of those emails were privileged because they did not contain a request for, or the provision of, legal advice or anything about trial strategy.

“The government admits that its filter review was not perfectly executed; copies of a handful of the same or similar emails were inconsistently tagged,” Koster said.