TRAFICANT CASE Expect year for appeal, prof says

The congressman has a lot of lawyers willing to help.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
YOUNGSTOWN -- U.S. Rep. James A. Traficant Jr.'s appeal of his racketeering conviction could take nearly a year, a law professor says.
"He has to focus, he can't send a laundry list of issues," said Lewis R. Katz, a law professor at Case Western Reserve University. "He has to pick the issues and develop arguments."
Traficant, of Poland, D-17th, will be sentenced June 27 by U.S. District Judge Lesley Brooks Wells. A jury found him guilty Thursday of all 10 counts he faced, including racketeering, bribery, obstruction of justice and tax evasion.
The jury believed the congressman cheated on his taxes, took kickbacks from high-level staffers, compelled other staff members to do work at his 76-acre horse farm in Greenford on federal time, accepted bribes and gifts from businessmen and used his influential position instead of paying contractors for work at the farm.
Traficant remains free on $50,000 unsecured bond.
Will he stay out of prison?
Katz thinks the chances are very good that Judge Wells will permit Traficant to stay out of prison pending the appeal. The congressman is not violent or a flight risk, Katz said.
If Judge Wells denies the congressman's request to postpone incarceration, he could ask the appellate court to grant an appeal bond, Katz said.
Roger M. Synenberg, a Cleveland defense attorney and former federal prosecutor, thinks Traficant will go to prison as scheduled. Postponing prison is not ordinarily done, but it depends on the circumstances, Synenberg said.
Once sentenced, the congressman would file his notice of appeal with the judge and she would order the trial transcript sent to the U.S. Court of Appeals for the 6th Circuit in Cincinnati, Katz said.
If Traficant can't afford the cost of the transcript, the judge would conduct a hearing to determine if the congressman qualifies as indigent. If he is found indigent, the court would pay for the transcript and lawyers, Katz said.
Appeal process
Typically, the appellate court would give Traficant two months to file his appeal, the government two months to respond and Traficant an additional month to answer the government response. Once that is done, the appellate court would schedule oral arguments, generally giving each side 30 minutes to address a three-judge panel, Katz said.
After that, the three judges would meet and go through each issue and express their conclusion.
If two of the judges agree that significant error occurred in the trial, the case would be sent back for new trial. If a majority agree that harmless error occurred, the conviction would be reaffirmed.
The entire appeal process can take nearly a year, Katz said.
Only a small percentage of cases are reversed, Synenberg said. The burden is on Traficant to raise issues of almost constitutional dimensions, he said.
Offers of help
Atty. Don L. Hanni Jr. said he has offered to help Traficant with the appeal, as have several other lawyers in town. The help is with or without pay, he said.
Atty. David J. Betras said he's willing to help. Betras said the congressman can challenge issues that involve his protection under the speech or debate clause in the Constitution, jury pool selection and his inability to get in all his evidence and witnesses.
Betras said Traficant should have been able to put on the defense he chose, if that meant an incredible "Daffy Duck" defense. The judge should have allowed all his witnesses to testify and let the jury decide their credibility, Betras said.
"Just because a witness isn't believable doesn't mean you don't put him on," Betras said. "He had a right to do that."
Judge Wells heard from three defense witnesses and determined their testimony was either irrelevant or hearsay and did not let them testify with the jury present.
Betras said the judge should have appointed standby counsel for Traficant, who represented himself.
Betras said he'd look for a "one shot, one kill" issue, such as jury selection or inability to put on a defense. Either issue goes to all the charges, he said.
Traficant, if he loses at the appellate court in Cincinnati, can petition the U.S. Supreme Court. Four of the nine justices would have to agree to hear his appeal.
The high court accepts fewer than 100 of 2,500 cases submitted annually, Katz said.
Cites Constitution
The congressman has said the judge violated his constitutional rights guaranteed under the First, Fifth and Sixth amendments. He said the judge erred when she excluded some of his evidence, especially nine audiotapes, had no jurors from his district and asked, with the jury present, if he intended to testify on his own behalf.
The jury pool is drawn from certain counties by an order from federal judges.
Katz suggested that the congressman would likely focus on evidence the judge let in and evidence she disallowed. The question about Traficant's taking the stand, the law professor said, was Wells' way of trying to create a reasonable schedule for her court.
She made no comment about whether he would or would not testify, Katz said. The judge also instructed the jury that it should not infer anything about his not testifying.
Betras said he'd have to take a look at what happened in context but suggested the judge should have excused the jury, then asked Traficant if he would take the stand.