YOUNGSTOWN Toledo lawyer takes Traficant appeal case

The lawyer doesn't expect many trips to the prison because of distance.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
YOUNGSTOWN -- Jim Traficant is "a bit subdued" in prison "but still Jim Traficant," his new lawyer says.
Toledo attorney Richard M. Kerger said he visited the ex-congressman in prison Nov. 19. Traficant, convicted of racketeering and tax evasion, is serving eight years at the Federal Correctional Institution at Allenwood in White Deer, Pa.
After the visit, Kerger signed on as lead counsel for Traficant's appeal with the 6th U.S. Circuit Court of Appeals in Cincinnati.
Columbus attorney Percy Squire, who initiated the appeal, remains on the case in an advisory capacity. He accompanied Kerger to the prison in central Pennsylvania. Traficant, Squire said, was somber, not his gregarious self.
"He's very concerned about his family. He's very bitter. He feels he was railroaded," Squire said Tuesday. "He's a very proud man and he's sucking it up, so to speak."
Squire said Traficant doesn't want to be a burden on his family.
"He would prefer to handle this on his own but was glad Rick Kerger is willing to take on the appeal."
Recruited by Squire
Kerger said Squire, a longtime friend, asked if he would consider representing Traficant.
"I had known of [Traficant] and had heard him speak on a couple of occasions over in Youngstown," Kerger said. "I didn't know him."
Kerger would not say if he is being paid. "That's between me and my client."
Kerger said he wasn't aware that, in July, Youngstown attorney Mark S. Colucci announced at a press conference that he would serve as lead counsel for Traficant's appeal. Colucci never followed through by filing a notice with the federal appellate court.
Kerger said he's read all 36 days of the trial transcript in preparation for the appeal. Because of the distance between Toledo and White Deer, he doesn't anticipate many more trips to the prison. The basis of the appeal will be procedures that deprived Traficant of a fair trial, Kerger said. The first appellant brief is due Jan. 10.
Jury makeup
The way the court system is skewed for the northern district of Ohio, whether intentionally or unintentionally, the assignment of criminal cases deprives jurors who may have the greatest interest in a case from participating, Kerger said. The Traficant jury was drawn from the Cleveland area, where the trial was held.
With so many more federal judges in Cleveland and Akron, the strong likelihood is that cases will not be heard in Youngstown, Kerger said.
Kerger said he also will argue double jeopardy. Based on the criminal conviction, Traficant was expelled from the U.S. House of Representatives on July 24, six days before U.S. District Judge Lesley Brooks Wells sentenced him.
"Congress could have imposed a prison sentence, believe it or not, according to the United States Supreme Court. There's an old case that probably goes back to the 1890s dealing with the power of Congress to discipline its members and within it is the right to put them in prison," Kerger said.
"In my mind, that raises a very serious double-jeopardy issue. He could have been sanctioned to prison and he couldn't come along later and have the judge put him in prison as well."
Successful case
Kerger said the most satisfying case he ever handled was that of Tony Miller, who spent nearly nine years in prison for robbing an Arby's in Toledo and shooting a police officer.
Kerger said he was able to prove that Miller had ineffective assistance of counsel on appeal, and Miller was released from prison.
The state decided not to retry that case, Kerger added.
Kerger is a member of the Northern District of Ohio Advisory Group, which meets twice a year with the federal judges to review local rules for lawyers.
Richard J. French, an assistant U.S. attorney assigned to the civil division, also is a member of the group. French has been pursuing collection of Traficant's $150,000 fine through garnishment procedures.
Elizabeth Chahine of Boardman, Traficant's daughter, has been added to the list of those the government believes has property of Traficant's or proceeds from property sold.
meade@vindy.com