Did you ever get badly bawled out by somebody, and the person stalked out of the room and then stalked back in and started bawling you out again? That means the person is mad at you. That’s what happened to federal prosecutors Tuesday in the corruption trial of Dallas County Commissioner John Wiley Price.
In fact, at this point in the sixth week of the trial, the question is no longer whether the federal case against Price is messed up. It’s whether it’s messed up enough to make a difference.
Before bringing in the jury yesterday, the normally cool and collected Barbara Lynn, chief judge of the U.S. District Court in Northern Texas, soundly boxed the ears of Criminal Chief Assistant U.S. Attorney Chad Meacham and his subordinate, Assistant U.S. Attorney Walter Junker, over the government’s repeated failures to turn over evidence to the defense as required by law. It was the fourth time she has rebuked them over turning over evidence, a process called “production” in a trial.
“I have had multiple instances that I regard as improper conduct by the prosecution,” she said. Later in her remarks she said, “The fact that things happen that way causes the court not to have confidence in the accuracy of the thoroughness of the government’s production.”
She called the government’s handling of its own evidence so far “inappropriate and very disappointing and frankly inconsistent with my prior very, very good experience with your office.”
But it was Junker’s lame attempt at an excuse that seemed to arouse her particular ire. He said it was “humanly impossible for any one person to be intimately familiar with every document in this case.”
Lynn left the courtroom after that, with the jury still out. But she came back in, still steamed about Junker’s explanation. She said she had something more to say before bringing the jury in.
"This ‘it isn’t humanly possible’ position is unacceptable to the court.”
She told Junker it was the government’s choice to gather the massive amount of evidence it piled up for this case: “The scope of this investigation is of the government’s work.”
It’s the government’s job, therefore, she said, to keep track of its own evidence: “I don’t care if the job is difficult. That’s the job that the government undertook. This ‘it isn’t humanly possible’ position is unacceptable to the court.”
The judge, however, denied a motion by defense lawyer Tom Mills to declare a mistrial, falling back on the same position she has taken on early lapses by the government, that the overlooked evidence was not especially important, or, as she put it, “more chaff than wheat.”
But have the government’s repeated faux pas in this complicated case revealed something deeper or more important than mere goofs? And will those mistakes ever rise to the level of an issue for the jury, which was out of earshot for yesterday’s scalding rebuke?
Part of what seemed to really tick Lynn off about Junker’s excuse was that the defense has complained from the beginning about the same thing. In fact, one working theory of the defense has been that the government spent years piling up stacks of irrelevant evidence in order to pull off a data dump – enough white pages to make a small court-appointed defense team snow-blind.
Certainly Junker’s “humanly impossible” argument, in the wake of all the previous failures to properly produce evidence, could be an indication that they’ve lost track of what’s in their mountain.
The judge gave Price’s defense lawyer, Chris Knox, credit for knowing more about the government’s evidence than the government: “These things seem to be located when Mr. Knox, in particular, who I believe has taken a deep dive and knows what isn’t there and what is there, asks the question. And then there is this Eureka! moment.”
All of that could point to a surface wobbliness, a superficial disorganization in the government’s case, without necessarily impugning the guts of it. The accusation is that Price took bribes worth $1 million from Kathy Nealy, a political consultant, over a 10-year period. It seems likely the jury will focus on that – did he get that money and was it a bribe? – and probably go blurry-eyed on fights between lawyers over arcane rules of evidence.
But what if the procedural problems in the federal case actually betray something more fundamentally wrong with it? The case is the lifetime achievement of retired FBI Special Agent Don Sherman, who pursued corruption in Dallas in general and Commissioner Price in particular during the lion’s share of a long, distinguished career.
When Sherman suffered a stroke five years ago, command of the investigation of Price was turned over to Special Agent Allen Wilson, a younger associate of Sherman. Even before the Price trial opened six weeks ago, a major problem emerged related to a linkage between Sherman’s investigation of Price and an earlier Sherman corruption investigation.
Former Dallas City Council Member Don Hill was sentenced to 18 years and his wife, Sheila Farrington Hill, to nine years in 2010 on corruption counts stemming from an investigation led by now retired FBI Special Agent Don Sherman.
Lawyers for Nealy, the political consultant who was to have been a co-defendant with Price, told Judge Lynn that Sherman and other federal officials had granted Nealy immunity in exchange for her testimony against former Dallas City Council member Don Hill. Hill was sentenced seven years ago to 18 years on corruption charges.
The problem for feds now is that the evidence Sherman developed against Price seems to have been woven initially from things Nealy told Sherman and Wilson about Hill almost a decade ago. She argues now that she can’t be prosecuted on evidence Sherman took originally from those interviews.
And, look: I know a guy who will stand in front of Judge Lynn and swear under oath he was sitting next to Nealy the day the FBI swore to her she would never be prosecuted on the basis of what she told them then. In fact, Lynn took Nealy’s claim of immunity so seriously that she split Nealy out of the Price trial and slated her for a separate trial later, to begin with a detailed examination of the immunity claim.
So, what if the problems in the Price trial actually betray something deeper? Did the government go back into Agent Sherman’s 18-wheeler-load of John Wiley Price evidence and try to impose on it a theory, an order, an accusation that wasn’t there?
Yesterday Knox pressed Agent Wilson on something that felt a lot like that issue. Knox wanted to know how the government linked up checks, cash payments, receipts and other paper documents to produce its supposed proof of a tit-for-tat system of payoffs between conspirators Nealy and Price.
If you have an 18-wheeler load of documents, you can kind of strip to your skivvies, put on goggles, dive in and grab up whatever you need to make your point. Or do another dive and unmake the point.
What’s the truth in it? Which side, the government or the defense, is the one that’s snow-blind? Was there ever a core of truth in the data mountain, or is everybody just seeing faces in the clouds? Does that ever become a jury issue? Juries, after all, can be the smartest people in the room when it comes to cutting to the chase.