Bernick argues prosecutorial misconduct warrants dismissal
Judge Molloy first ruled on the Government’s motion for admission of redacted exhibits. See Motion. These rulings are of importance to the Rule 29 motions because the government has signaled that unless the exhibits are admitted, it will drop the conspiracy charges as to defendants Walsh and McCaig. See footnote 1, page 5 of Government’s Response to Defendants’ Rule 29 Motion.
“Redacting” is a common courtroom procedure by which a party or judge edits out the inadmissible evidence from the admissible evidence in a document. In this instance, Judge Molloy ruled on which of the proffered exhibits were admissible and which sections must be “redacted in white.” Judge Molloy found that certain address lines, paragraphs, and pages of the exhibits were too prejudicial and raised unwarranted inferences.
The government did not indicate its decision on whether to continue prosecuting the conspiracy charge against Walsh and McCaig.
Judge Molloy informed the parties that he would hear the oral arguments regarding the motions to dismiss for prosecutorial misconduct first, beginning with the arguments of W.R. Grace’s attorney David Bernick and continuing to each of the others. The government informed the court that Assistant U.S. Attorney Tim Cavan would argue the suborning perjury accusation and Assistant U.S. Attorney Tim Racicot would argue “everything else.”
Bernick adorned his argument with a string of repeated words and phrases: “corrupt,” “overwhelming,” “extraordinary,” “pervasive,” “uniquely pervasive,” “stunning,” “dereliction,” “lasting for years,” “perjury,” “the bell cannot be un-rung,” “suborning,” “serial,” “misrepresentation,” “primed to lash out,” “clever,” “strategic,” “subtle,” “insidious,” “venom,” “vendetta,” “in bed with the government,” “groomed,” “manipulation,” etc. He presented timelines, letters, transcript records, demonstrative exhibits, and a powerpoint presentation to bolster his argument.
Bernick gave the following as examples of “overwhelming and uniquely pervasive” perjury: Locke’s testimony that he had only met with the government a handful of times when in fact he had met about twenty times, Locke’s representation that he was not testifying under a grant of immunity when he in fact had a “hood and wink” agreement with the government, Locke’s “special” relationship with the government, in which he acted more like a member of the prosecution team than a witness, and Locke’s implication that the defendants agreed to the “obstruct and block memo.” See the “obstruct and block memo” on page 25 of the Superseding Indictment.
Bernick extended his perjury argument to inculpate the testimony of Dr. Miller, Mary Goldade, Dr. Lemen, and others. “This was orchestrated,” Bernick argued, implicating Kris McLean and the prosecution team. Bernick indicated he would outline the possible remedies available to the court, but stated that this pervasive problem “mandates an extraordinary measure” by the court. Judge Molloy asked no questions during the hour of Bernick’s argument that I observed.
~ Nick Lofing (4/27/09 at 12:14 p.m.)