Rep pushes the limits, expert says

The congressman has a lot more leeway as his own attorney compared with being just a defendant, an expert says.
By DAVID SKOLNICK
VINDICATOR POLITICS WRITER
YOUNGSTOWN -- U.S. Rep. James A. Traficant Jr. is "trying to make his trial a test of wills" between himself and the judge by constantly breaking court protocol and seeing how far he can push her, a legal expert says.
"He's walking a tightrope, and at a certain point, he risks alienating the jury by his conduct," said Lewis R. Katz, a 37-year law professor at Case Western Reserve University in Cleveland. "But this is part of his strategy. He'll push the judge so far that if she holds him in contempt, he'll turn to the jury and say, 'See, they're all part of this'" conspiracy.
U.S. District Court Judge Lesley Brooks Wells has repeatedly admonished Traficant for his conduct in court. Traficant, a nine-term Democratic congressman from Poland, is defending himself against charges including racketeering, bribery and tax evasion.
Judge Wells has stopped the trial several times to tell Traficant that he is violating court rules, including his frequent habit of making statements to witnesses instead of asking them questions.
"I think where this judge is trying to draw the line is not to hold him to technical rules of being an attorney," Katz said. "He elected to defend himself, and she has warned him to conduct himself as a lawyer."
But Judge Wells will not let Traficant flagrantly violate court rules, Katz said.
In unusual position: Traficant has a lot more leeway as his own attorney compared with being a defendant who lets a lawyer handle the case, he said.
"Judges take very drastic action against defendants who refuse to abide by the rules of the court," Katz said. "But ordinarily, the defendant has no role in his defense except as a possible witness or to point something out to his attorney. This is a different case. He'd be subject to removal from court if he said what he says as a defendant if he wasn't defending himself."
Traficant has made a career out of making his opponents underestimate him, and he's trying that same tactic in his federal case, Katz said.
But there is only so far Traficant can push Judge Wells before she takes action, and the congressman may keep on pushing until he hits that limit, Katz said.
If Traficant crosses that line, Judge Wells could find him in contempt of court and require him to pay a fine or even put him in prison for a short time, Katz said.
"She has the inherent authority to keep her courtroom from becoming a spectacle," he said. "His strategy is to go as far as the judge will let him, and then see when the judge stops him. There is the chance that this case will turn into a circus."
Judge's dilemma: Before the trial started, Judge Wells said she would consider appointing an attorney to either assist or defend Traficant if the congressman showed he could not handle the responsibility himself.
But Katz said if the judge no longer allowed Traficant to defend himself, no matter how poor a job he does, it would open up doors for an appeal by the congressman.
"It would be very difficult to appoint a lawyer," he said. "It would be subject to close scrutiny on appeal because it would gag him and because he has the right to defend himself."
All taking chances: Traficant, Judge Wells and the federal prosecutors are all taking chances with their conduct in this case, Katz said.
For Traficant, he is running the risk of turning the jury against him with his courtroom antics.
"The jury may think at a certain point that all this guy has is bluster as opposed to the real evidence of the prosecution," he said. "By engaging in this conduct, he's delaying the case and making them sit longer."
The jurors won't forget that when they consider a verdict, he said.
For the prosecutors, objecting more strenuously and extensively to Traficant's cross-examination, Katz said, means they run "the risk of alienating the jury because the jury or some jurors may feel that they're taking advantage of this person who's not trained as a lawyer."
For Judge Wells, if she's tough on Traficant and holds "him on too short of leash, she fulfills his claims that they're all in this together."
Judge Wells has been facing a monumental task keeping Traficant in line, Katz said.
Also, Traficant has continuously attempted to use a defense that the government has a vendetta against him that goes back to 1983 when he successfully defended himself against federal corruption charges.
Each time, Judge Wells has not permitted the line of questioning. She will continue to do so, Katz said, until Traficant "makes some preliminary showing that there's more to it than just his complaint. I don't know if he's been able to do that."
skolnick@vindy.com