A.G. Gancarski
On Monday, the trial of Rep. Corrine Brown moved on, with several filings and motions speaking to the current state of the 22-count federal case against the 23-year incumbent Jacksonville Democrat.
In positive news for the suddenly media-shy congresswoman, Brown seemed to be exempted from having to appear personally in Jacksonville next week, via an order from U.S. Magistrate Judge James Klindt.
In less positive news, a protective order was sought over the objections of the defense team for material introduced by the federal government in the discovery process. The order was at least partially driven by a desire to keep Congresswoman Brown from making the case for her innocence in the media.
The back-and-forth about the proper use of discovery material illustrates the larger issues in trying a controversial politician on a number of charges that impugn her personal integrity, with a competitive re-election campaign as a backdrop.
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The “confidential and sensitive information that may be disclosed to the defendants pursuant to the government’s discovery obligations,” claimed the draft of the protective order, was to be reviewable only by the defendants, by potential witnesses, or by experts or investigators, or a third-party photocopying service.
Exempt from the ability to see this information? Anybody else, according to the draft protective order.
This draft protective order is interesting, in part, because of a recurrent contention of Brown’s defense team during her arraignment hearing July 8.
The defense made reference to having “learned more from the media in the last 30 hours than from the court in the year,” including the arraignment and the indictment.
Brown, meanwhile, had not seen the indictment at the time of the hearing. But she plead not guilty all the same.
For those who believe Brown is being tried in the press, court documents related to the protective order will bolster their position, as Brown would be foreclosed from professing her own innocence with leaks to the media.
On appeal, especially if the protective order is granted, that disparity would be noted.
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The draft version of the protective order elicited objection from Brown’s defense team last Friday, predicated on several grounds.
The first one was the blanket prohibition of dissemination to all third parties except those involved in the case, which struck the defense as salient in context of the “high-profile nature” of the case and Brown facing a competitive re-election campaign in the wake of an “unusual amount of pre-indictment publicity.”
That publicity, contended the defense, has “directly interfered with the electoral process.”
The concern: the protective order bars the defense from “disclosing exonerating evidence contrary to the unproven allegations that are already swirling in the press.”
The defense objected to a “blanket protective order” ahead of actually knowing what the discovery contains, and reiterated a recurring complaint — namely, that the timing of the indictment, during campaign season, elicits unnecessary “complications.”
“These very sorts of complications were what we had hoped to avoid when we sought to have the indictment postponed until after the election,” the defense posited.
Citing the need for the “preserving the integrity of the electoral and legislative process,” Brown’s defense contended they were “extremely reluctant to enter into any agreement that would inhibit our client from demonstrating her own innocence in the public eye, particularly when the confidentiality of the grand jury proceedings was so blatantly ignored.”
As well, the defense objected to the destruction of discovery, saying that the Canons of Ethics require retention of documents “for a certain period of time.”
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Worth noting is why the prosecutors desire such a blanket protective order.
Noting that the initial discovery is due this Friday, and that material is not redacted, the prosecution asserted the material contains “personally identifiable information,” including Social Security numbers, credit card numbers, and bank account numbers, not just from defendants, but also “many victim-donors of the charged conspiracy and fraud scheme involving One Door for Education.”
As well, witness statements and grand jury testimony, and “non-public business records of defendants and third parties,” would be disclosed in the discovery process.
Thus, prosecutors contend, strict limits on the use of discovery material are necessary.
Meanwhile, they claimed that “defendant Brown, through counsel, objects to entry of the proposed protective order exactly because it would prohibit her from disseminating discovery material for purposes other than the preparation of her defense. Specifically, defense counsel’s view is that defendant Brown should be free to pick and choose material and information obtained through discovery that she believes rebuts the allegations in the indictment, and then disseminate that information to the public.
“In other words,” the prosecution contends, “defendant Brown objects to entry of the proposed protective order because it would inhibit her ability to use criminal discovery as an extrajudicial campaign tool — irrespective of the privacy interests of both her co-defendant and third parties, including victims of the fraud scheme she and defendant Simmons allegedly perpetrated.”
Instead of being moved by the defense position, the prosecution actually became more entrenched, positing that “indeed, defendant Brown’s stated desire to use discovery in this fashion provides further good cause for imposition of a protective order.”
While “defendant Brown is free to speak with the press and to the public concerning this matter,” the prosecution seeks, in part, to withhold discovery information from people not associated with the case precisely to avoid perpetuating a “carnival atmosphere,” citing “the overarching need to preserve the integrity of judicial proceedings through the minimization of pretrial publicity.”
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In these documents, one can see the contours of how the trial will go, and how the groundwork is laid for appeal down the road.
The defense has contended that Brown effectively was pre-tried in the press before judicial proceedings began, and even a cursory review of Jacksonville media will reveal information revealed in a public forum that could prejudice jurors against the defendant.
Brown contended earlier this month that “indictment does not mean conviction.” To that end, her legal team is litigating, point by point, the integrity of the prosecution’s case. This will be conducted with the backdrop of a very competitive primary, which takes place one week before the currently scheduled commencement of the trial.
And that trial, in turn, will impact the general election, in which the Democratic nominee will take on Republican nominee Glo Smith.
