TRAFICANT CASE Judge considers appointing lawyer

The judge's order has made a lot of technical legal work for the congressman -- who is not a lawyer.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- A federal judge will "seriously consider" giving U.S. Rep. James A. Traficant Jr. a lawyer if he can't muster the legal expertise to challenge the mound of evidence against him.
In an order filed late Friday in U.S. District Court, Judge Lesley Brooks Wells ordered the 17th District congressman -- who is not a lawyer -- to basically redo a motion he filed Aug. 20. The motion seeks to suppress evidence he claims is privileged under the speech or debate clause in the Constitution.
The clause allows members of Congress to say virtually anything on the House floor without fear of legal reprisal. They are also protected by any documents they insert in the Congressional Record.
The indicted Poland lawmaker, in his motion, made a blanket objection to evidence the government turned over to him as part of pretrial discovery. His trial on racketeering, bribery and tax evasion is Feb. 4.
In mid-July, federal prosecutors filed 233 documents they intend to use at trial. On July 24, the government then delivered to Traficant 37 boxes that contained 99,880 documents and 22 videocasettes and 453 audiocassettes.
Order to Traficant: In her order, Judge Wells gave Traficant until Oct. 15 to note with specificity each document, piece of evidence or exhibit he claims is protected by the speech or debate clause. The 60-year-old congressman has to file a copy of each item that he designates as privileged.
The prosecution team -- Craig S. Morford, Bernard A. Smith and Matthew B. Kall -- then has until Oct. 29 to reply.
Judge Wells said the burden of proof lies with Traficant to show by a preponderance of the evidence that the speech or debate clause applies to the evidence he is challenging. He has taken the position that the government has to show which documents are not exempted.
When Traficant filed his motion to suppress virtually all the evidence against him, prosecutors responded by saying they had expected he would "conduct a meaningful review" of the documents they gathered and lodge objections on a document-by-document basis.
Government request: Because Traficant failed to craft the motion properly -- and given the complex nature of the legal issues at hand -- "the government respectfully requests that the court consider appointing standby counsel to advise Congressman Traficant regarding this one issue," prosecutors said Aug. 28.
The government may get its wish.
Judge Wells said Friday that if Traficant proves incapable of complying with her order, she will "seriously consider the appointment of standby counsel to ensure that defendant Traficant has available to him the professional assistance needed to comply with this order."
Traficant has been adamant about defending himself at trial and has rejected Judge Wells' strong suggestion to get a lawyer or, at the very least, legal advisers.
Referred to magistrate judge: On Aug. 29, Judge Wells referred Traficant's speech or debate clause suppression motion to U.S. Magistrate Judge William H. Baughman Jr. The magistrate is to consider it and file a report and recommendation for its disposition.
The order Judge Wells filed Friday was done to aid Magistrate Judge Baughman. She has instructed him to limit his report to the evidence Traficant challenges with specificity by the Oct. 15 deadline.
So far, three prominent businessmen have pleaded guilty in the Traficant case and are expected to testify for the prosecution. He is accused of, among other things, taking cash bribes, good and services from businessmen and kickbacks from high-level staffers.
meade@vindy.com