Bush-Era Mississippi, Qwest Prosecutions Still Making News
Two significant federal political prosecutions from the last decade are still making news this week. In Mississippi, U.S. District Judge Henry Wingate again postponed resentencing of the imprisoned trial attorney and Democratic fund-raiser Paul Minor, whose prosecution on corruption charges in 2003 helped Republican Haley Barbour win the state’s governorship. In New Jersey, imprisoned former Qwest CEO Joseph Nacchio sued his politically well-connected former lawyer, Herbert Stern, on grounds of ineffective legal work during Nacchio’s prosecution on insider trading charges – despite Stern’s $25 million in legal fees. The Justice Integrity Project has tracked Nacchio’s case closely after hearing from independent sources their belief that the Bush Justice Department targeted him improperly because he refused to make Qwest customer records secretly available for widespread federal surveillance then regarded as violating constitutional protections against illegal wiretapping.
On Monday, Wingate again postponed his decision-making on how to resentence Minor and former county judges John Whitfield and Wes Teel on bribery charges after previously saying he would rule promptly on an obligation mandated by a 2009 appeals court decision. “Another day, another delay,” opened a Jackson Clarion-Ledger news account. Minor’s attorney, David Debold, said he hoped the delay signals that the trial judge is seriously considering a defense request to vacate the convictions. “Debold said he knows it's not easy for a judge to reverse a case this late but it's the right thing to do in the wake of the high court decision limiting the honest services statute,” the newspaper reported. In December 2009, the 5th U.S. Circuit Court of Appeals ordered the defendants resentenced after the court threw out their bribery convictions. The appellate court also upheld Minor’s racketeering conviction and the “honest services” convictions under a law that the Supreme Court has since seriously questioned.
Roger Shuler, an Alabama legal commentator whose research parallels our own on the case, published another column this week describing the trial judge Wingate as an ally of a politicized Bush Justice Department that sought groundless charges against Minor that helped create a favorable election climate for Barbour’s election victories that have helped transform Mississippi into a solidly Republican state, albeit with a largely black Democratic minority. Barbour was Republican National Committee Chairman from 1993 to 1997. Later, Barbour became a prominent lobbyist in Washington, including co-ownership of The Caucus Room. The restaurant is located across the street from FBI headquarters and just a block from both Justice Department headquarters (and those of our Project). In one of our initial investigative efforts, we organized a breakthrough conference in 2009 at the nearby National Press Club that featured Oliver Diaz, a Republican former Supreme Court Justice in Mississippi. Diaz described for the Press Club audience – and one augmented nationwide audience on C-SPAN – how the Bush Justice Department ruthlessless and unfairly prosecuted him in a political vendetta whose ultimate purpose was to tarnish Democrats such as Minor.
“Sadly, the Minor case never should have come down to appellate rulings and new interpretations of established federal statutes,” the columnist Shuler wrote this week. “But a Bush-appointed prosecutor pursued the case through hung juries and multiple trials and finally got convictions ─ with the help of numerous unlawful rulings from Wingate, a Reagan appointee to the federal bench.” Shuler estimates that his Legal Schnauzer blog has published about a hundred columns about case’s various injustices. Other views exist, of course. They include the Obama Justice Department’s continued efforts to uphold convictions and the long prison sentences the defendants are currently serving. With such bipartisan law enforcement solidity behind prosecutions, both traditional and new media to echo and endorse official views. In Mississippi, for example, a conservative new media news and opinion website called Yall Politics has been a vigorous opponent of Minor and strong supporter of Barbour.
The politics of ostensibly non-partisan criminal investigations into political figures often leads defendants who can afford the price-tag to woo politically connected, high-profile attorneys to represent them. One example is Minor, who became his state’s leading donor to Democrats after a controversial but highly successful career as a torts attorney suing powerful companies. For his appellate work, he was able to recruit former U.S. Solicitor Gen. Theodore Olson, one of the nation’s most prominent Republican appellate experts and Republican insiders. Olson’s team from Gibson Dunn & Crutcher includes Debold. Olson has also extended himself beyond the norm by making known his representation and his client’s defense arguments in announcements to the press that many top attorneys are reluctant to do in fear of antagonizing someone important by seeming too aggressive on behalf of any one client.
Somewhat similarly, Nacchio hired for his appellate work former Deputy Solicitor General Maureen Mahoney of Latham & Watkins. She is another member of the highest elite of appellate litigators and Republican insiders. Somewhat similar to Olson, she extended herself also beyond the norm after Nacchio lost his Supreme Court appeal in October 2009. “I am deeply disappointed by the court's decision,” she wrote a reporter in an email, “because I am convinced that he is innocent and did not receive a fair trial.”
Among the larger issues related to the Nacchio case is a widespread suspicion raised by Nacchio and also some independent observers that his unusually vigorous prosecution by the Bush Justice Department was related to his reported 2001 refusal, alone among executives of the top former Bell telcos, secretly to comply with federal requests to make available large quantities of customer data in ways he regarded as violating customer privacy in violation of their constitutional and other protections against illegal surveillance. Congress, the courts and the traditional news media have proven to be extraordinarily timid about probing the extent of such illegal government surveillance. Mark Klein was an AT&T technician who says he discovered that his company was illegally intercepting and storing billions of customer emails and phone calls in cooperation with the National Security Agency from NSA’s perch in his San Francisco office, was unable to find a news organization to break the story until Wired Magazine did so after many months. Klein, in an interview with the Justice Integrity Project and in his 2009 book “Wiring Up the Big Brother Machine,” says the New York Times waited a year to break the story. It finally did so, he says, only because Wired Magazine dared first to break the story and because Times reporter James Risen was disclosing the story also in a forthcoming book. Klein says he has never been able to obtain interest by Congress in the topic. As a Presidential candidate, Sen. Barack Obama vigorously opposed immunity for telecom companies but reversed course in joining Senate colleagues to approve immunity for AT&T and others after he won his party’s nomination.
In a related development, a unanimous federal appeals court revisited the issue this week with an important decision reinstating a right to sue by civil liberties and journalist groups forbidden by a lower court judge to investigate the secret surveillance by court process because they couldn’t prove in advance who had been targeted or hurt. A New York Times editorial on the case said the decision “might lead to a significant, and long overdue, legal review of the government's warrantless wiretapping program.”
A second notable feature about the Nacchio case involves the lessons that other defendants and other legal observers can glean from the results of his high-profile defense lawyers. Our research at the Justice Integrity Project has repeatedly indicated that even those with large savings and vast high-level executive experience sometimes become as helpless as anyone else when targeted by law enforcers who can draw on taxpayer-funded budgets and the inherent credibility they sustain from their public office. More specifically, many high-profile defendants find that even top-dollar defense attorneys are sometimes disappointed as courtroom reverses occur and defendants fear that their attorneys are focused one fees and maintaining their institutional relationships with an eye to new clients and cases.
Such concerns prompted this week’s suit by Nacchio against his former attorney Herbert Stern, a former Bush-appointed U.S. attorney for New Jersey whose firm Stern & Kilcullen charged Nacchio $25 million for representation that included Nacchio’s six-week trial. Nacchio’s negligence suit alleges that Stern’s firm billed for thousands of dollars of staff breakfasts, in-room movies and underwear. Stern's firm billed for “duplicative and unnecessary work” including seven attorneys to attend a court appearance, news reports say. Even so, the suit says Stern's firm was “negligent and careless in handling the defense of the criminal action,” which resulted in the barring of a key Nacchio witness. The suit alleges that the trial judge noted Stern's “gross defect in failing to reveal the methodology of a key witness.” Nacchio, 61, is serving a 70-month prison sentence at a federal prison in Pennsylvania after being convicted in 2007 of selling $52 million in stock in Denver-based Qwest based on inside information.
The lawsuit by former Qwest CEO Joseph Nacchio alleges that among other things, Stern attorneys overbilled him while representing him during a six-week-long trial on insider trading charges. Nacchio was convicted and sentenced to 70 months in prison. His fines and restitution amounted to $70 million.
Now he is suing Stern and his firm Stern & Kilcullen LLC alleging negligence in the handling of his case. But the suit also alleges that among the $25 million Stern billed for the defense, were charges for thousands of dollars of staff breakfasts, in-room movies and underwear. Nacchio also claims that Stern's firm billed for “duplicative and unnecessary work” including seven attorneys to attend a court appearance. According to the suit, Stern's firm was “negligent and careless in handling the defense of the criminal action,” which resulted in the barring of a key Nacchio witness. The suit alleges that the trial judge noted Stern's “gross defect in failing to reveal the methodology of a key witness.”
“This is a really sad case,” Bruce Nagel, Nacchio’s attorney for the suit, told reporters. “Bad lawyering resulted in a long jail sentence and $70 million in fines, and Nacchio was grossly overbilled in the process. It is time to deal with this unnecessary injustice.”
We are contacting Stern for comment and will update this report with any we receive. Stern’s background is highly distinguished. Among other things, he was an Assistant District Attorney, New York County Homicide Bureau from 1962-1965. He served as Trial Attorney in the Organized Crime and Racketeering Section of the U.S. Department of Justice from 1965-1969. Later, he was Chief Assistant in the U.S. Attorney's Office for the District of New Jersey beginning in 1969, and became Acting United States Attorney in that Office, serving from 1970-1971. He was the United States Attorney for the District of New Jersey from 1971-1974. He was appointed to serve as United States District Judge in the District of New Jersey, serving from 1974-1987. He served as the United States Judge for Berlin in 1979. He is the author of several books, including “Tiger in the Court” that I favorably reviewed in 1973, and worked on the Iran-Contra investigation under Independent Counsel Lawrence Walsh.
Stern’s capabilities and political clout after leaving the Justice Department for private practice had become controversial also because of New Jersey Gov. Chris Christie’s efforts to brand himself as a reformer. The Associated Press reported in 2009 that Christie as a Bush-appointed U.S. Attorney awarded seven multi-million-dollar no-bid contracts top Republican insiders to monitor legal compliance by organizations that might otherwise face prosecution for law-breaking. Two of the biggest contracts were for former U.S. Attorney Gen. John Ashcroft, Bush’s first in the post, for between $28 and $52 million, and to Stern. The AP reported the Stern deal as follows: http://www.nj.com/politics/index.ssf/2009/06/nj_gop_gubernatorial_candidate.html
— Herbert Stern. Christie mentor got $10 million contract to monitor University of Medicine and Dentistry of New Jersey, accused of double-billing for services covered by Medicare. Christie close friend and fundraiser John Inglesino, a partner in Stern's law firm, was paid $325 per hour for his work as counsel on the monitorship. Stern, Inglesino, another partner and their wives later gave $23,800 in donations to Christie's campaign for governor. The donations were matched, 2-1, under New Jersey's campaign finance laws, bringing the total amount to $71,400.
In sum, most of these cases become more fascinating and important the deeper one probes – a process that is increasingly difficult as time pressures continually mount for defendants, law enforcers, reporters, judges and voters alike.