Judge rules Portage mayor's bribery case can proceed, despite privileged information in emails
Chicago Tribune
September 27, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-email-ruling-st-0928-story.html
Judge Joseph Van Bokkelen issued his ruling over questions about prosecutors use of emails obtained from Snyder’s email account at his upcoming trial.
In his order, Van Bokkelen denied Snyder’s motion to dismiss the indictment or to disqualify the government’s trial team. But the judge said that one exhibit containing emails with financial records could not be used, according to the order.
“The court finds that as carried out in this case, the filter process worked sufficiently, even if the process itself has inherent flaws,” Van Bokkelen said, adding it had “semblance of the fox guarding the hen house.”
Snyder and John Cortina, of Kustom Auto Body in Portage, were charged in November 2016 with violating a federal bribery statute. Federal prosecutors said the mayor solicited money from Cortina and "Individual A" and gave them a towing contract for Portage.
Snyder also was indicted for allegedly accepting $13,000 in connection with a Portage Board of Works contract and for allegedly obstructing IRS laws.
Snyder and Cortina have pleaded not guilty to the charges, according to court documents.
Leading up to trial, attorneys filed a series of briefs and discussed emails in the case in in closed-door hearings.
The defense argued that the emails seized in 2015 were put through a faulty screening process, and that the trial team accessed and used privileged communications, court records show.
Prosecutors said Snyder has not presented any evidence that shows his email communications were used in an improper way during the investigation, according to court records.
“Through it all, what has become clear is that, with the exception emails containing QuickBooks data, the government trial team is not in possession of privileged materials and that the privileged financial data has not unduly prejudiced Mr. Snyder,” the order states.
Before he was appointed U.S. Attorney for the Northern District of Indiana, Thomas Kirsch II, was Snyder’s defense attorney. Kirsch previously “directed Mr. Snyder to generate QuickBooks financial records for various entities associated with Mr. Snyder because his financial records were in disarray,” the order states.
Kirsch has recused himself from handling the Snyder case, according to court documents, and it is now being managed by the U.S. Attorney for the Northern District of Illinois.
Snyder used Intuit online software to email himself the records, which contained financial data in the body of the emails, according to the order. Snyder would forward these to his attorneys, the order states.
“The emails from Intuit to Snyder (generated by Snyder) slipped through the government’s filter process, and the government now cedes that those documents should not have been made available to the prosecution team because they constitute attorney work-product,” the order states. “However, the same data that was forwarded to the attorneys was quarantined.”
While Snyder “suffered some prejudice in that the disorganized financial data may have been more difficult for the government to analyze,” Kirsch had made some of this information to the government, the order states. This information “is factual in nature and does not reflect Kirsch’s legal opinions or strategies,” according to the order.
Van Bokkelen said, though, that the government “is not precluded from using the information it received from Kirsch even if that information is identical” to set of QuickBooks documents that the judge ruled on.
Van Bokkelen went over summaries of the emails in question in his order. The judge decided that “only three sets of documents contain privileged materials that the government’s trial team has in its possession,” including the QuickBooks documents.
The other two items, while privileged, did not cause Snyder to “suffer prejudice from the trial team obtaining” them, the order states.
Both of those items were between Snyder and a personal attorney over drafts for a consulting agreement sent to Snyder’s City of Portage email account, according to the order. Van Bokkelen said these emails contained legal advice, which made them privileged, the order states.
“In both instances, the government had obtained the agreements long before the emails were seized” and receiving the same document later did lead to “no new revelations,” according to the order.
The government had a three-tiered process to sift through the emails, narrowing down 8,600 that were quarantined to some 300 deemed privileged and that were made not available to the prosecution team, according to the order.
The QuickBooks files and the emails with the personal attorney were “missed,” the order states.
While “the court agrees with Mr. Snyder that the government could have cooperated with Kirsch to the filter out privileged communications, at least in the last stage of the review” the judge said “it was not legally required.
“To be sure, there’s nothing to suggest that the agents involved in the case improperly handled Mr. Snyder’s emails or that the agent in charge of peeking behind the curtain of the privilege. However, any process that leaves government agents unchecked is problematic,” the order states.
Van Bokkelen began his order with a Bible verse.
“Writing to Corinthians, Apostle Paul cautioned: ‘“Everything is lawful,” but not everything is beneficial. “Everything is lawful,” but not everything builds up,’” the order states.
Van Bokkelen added, “What the government did, it could do: the law is in its favor, even if the prudence of its actions can be questioned.”
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