Courtroom Fireworks Predicted as DC Madam Trial Opens (MORE, CLICK HERE)

Courtroom Fireworks Predicted as DC Madam Trial Opens
The Legal Times by Joe Palazzolo - April 7, 2008

WASHINGTON - Deborah Jean Palfrey hasn't been your standard-issue defendant.

The alleged D.C. madam -- she prefers "Washington Madam," thinking it more refined -- announced her own trial in a news release and has held raucous press conferences outside the federal courthouse and in Georgetown eateries.

Since her indictment last March, she's cycled through four lawyers, depending on how you count, and two judges. After haggling with a federal judge, she got her company's phone records released and implicated customers, including a U.S. senator, a former State Department deputy, the defense strategist who coined the phrase "shock and awe," and a prominent lobbyist. Even an Akin Gump Strauss Hauer & Feld secretary was dismissed last year formoonlighting as one of Palfrey's employees.

If a hearing in federal court on Friday was any indication, the trial is bound to serve up heaps of make-you-blush moments. Assistant U.S. Attorney Daniel Butler asked Judge James Robertson if in opening statements he could mention that a witness had contracted a sexually transmitted disease (presumably, in the course of employment for Palfrey). After giving his approval, Robertson deadpanned: "By the time we get past a day or two of this [trial], STDs will be the least of our worries."

At that same hearing, Henry Asbill of Dewey & LeBoeuf moved to quash a subpoena issued to his client by Palfrey's lawyer, Preston Burton of Orrick, Herrington & Sutcliffe. Robertson denied the request.

The name of Asbill's client was not mentioned, but Asbill has representedSen. David Vitter, R-La., in the case since the summer. Vitter hired Asbill after his name turned up in phone records Palfrey kept of her escort service, Pamela Martin & Associates. In July, Vitter apologized for committing "a very serious sin."

Asbill said calling his client to testify would be "totally inappropriate" and accused Burton attempting to publicly embarrass him. Asbill's client is on standby to testify in the case.

The pretrial hype may be great gossip page fodder, but Palfrey faces some very serious charges as she heads to trial Monday. She's been indicted on four counts of racketeering and one count of conspiracy money laundering. She faces up to 55 years in prison if convicted.

Still, Palfrey seems to have a sense of humor about it all, and she's sharply tuned into the media's appetite for sex and the absurd. Her proposed jury questionnaire asks: "How closely, if at all, would you say you have followed the news reports of the following criminal investigations or trials: 1. Heidi Fleiss 2. Eliot Spitzer."

At one point, she tried to subpoena Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, to testify about political corruption in the Justice Department. The relevance of such testimony was never fully explained.

Court filings also reveal a more typical strategy: For a time Palfrey's lawyers tried to choke the prosecution -- led by Assistant U.S. Attorneys Catherine Connelly, Daniel Butler and William Cowden -- with motions, more than 50 in about a year's time.

While the U.S. Attorney's Office for the District of Columbia declined to estimate the cost of the investigation and the anticipated three to four weeks of trial, it's clear that the $2 million and change Palfrey earned in 13 years as proprietor of Pamela Martin & Associates will seem a modest sum next to the government's tab.

Burton, declined to comment, except to say that he's prepared for a trial. Palfrey did not return e-mails or phone calls for comment.

14 COOPERATORS

Palfrey was indicted after a three-year joint investigation launched by the Internal Revenue Service and U.S. Postal Service.

What began as a tax case -- as it turns out, Palfrey is a diligent taxpayer -- turned into an investigation into an alleged criminal enterprise. Prosecutors say that Pamela Martin & Associates was a high-class prostitution ring in the D.C. area managed by Palfrey from her home in Vallejo, Calif., until August 2006.

Prosecutors claim Palfrey's employees mailed her cut of the profits in money orders, which provided the foundation for two of the racketeering charges and the money laundering charge.

Palfrey says she purveyed in erotic fantasies rather than prostitution, and that her employees, about 130 women mostly in their mid-twenties, were bound by contract to pleasure their clients only to the extent of the law.

The only named government witness, thus far, is Detective Keith Haight, a 34-year veteran of the Los Angeles Police Department who has been involved in about 2,000 prostitution investigations. According to declarations filed last month, he will be the government's expert on terms of art from the oldest profession -- for instance, "PSE" (porn star experience); "get comfortable" (translation: get naked); and "reckless eyeballing" (when a prostitute looks at another pimp). Robertson said on Friday that he would decide later in the trial whether to admit Haight as a witness. At Friday's hearing, Zuckerman Spaeder partner Steven Salky argued that the government shouldn't disclose his client, a man whose name is under seal. The client was granted immunity to testify during the grand jury probe, and Salky said prosecutors should grant him immunity again, if they want him to testify at trial. Robertson told Salky it appeared likely his client would be called to the stand.

AUSA Butler confirmed the man's name would be on the witness list when it was presented to the jury this week. "If the government wants to go spreading the names around ... it's on their heads to do it," Robertson replied at the April 4 hearing.

The indictment lists 14 former escorts who are cooperating with the government, all of whom are expected to testify. That could pose a tough challenge for Palfrey and Burton.

"If these women have a rather colorful past, you can stand before the jury and say, 'They're not worthy of your belief,'" says Herald Price Fahringer, a longtime lawyer for the adult entertainment industry who famously representedHustler publisher Larry Flynt before the Supreme Court. "But by the time they bring the 12th or 14th witness, it gets a little tough."

Fahringer was Palfrey's criminal lawyer of choice. With her assets frozen as a result of the racketeering charges, Palfrey could not convince Senior U.S. District Judge Gladys Kessler to free up $150,000 to pay for his representation.

It's not clear yet if any of Palfrey's former clients will take the stand. Vitter is the most obvious candidate, but there's also State Department official Randall Tobias, who resigned as director of U.S. Foreign Assistance and administrator of the U.S. Agency for International Development in April 2007, after admitting to using Palfrey's services. Tobias said he used the service for massages.

LAWYER SWAP

Burton, who represented Monica Lewinsky in President Bill Clinton's impeachment hearings, returned to the case earlier this year. He was Palfrey's second court-appointed attorney from May to October. Palfrey traded him in -- citing "irreconcilable differences," as she did with her first counsel, Federal Public Defender A.J. Kramer -- for her civil lawyer and former confidant,Montgomery Blair Sibley. The case was transferred from Kessler to Judge James Robertson in November, without explanation.

Palfrey fired Sibley in January, saying only that she had "lost faith" in him. Robertson put Burton back on the case, giving him about two months to prep for trial.

Sibley, who declined to comment, is still Palfrey's lawyer in civil forfeiture proceedings and in a breach of contract suit she filed against a former employee -- one of the 14 cooperating with the government. The suit says the woman engaged clients in "illegal sexual activities" without Palfrey's consent.

Prosecutors asked Robertson to allow them to introduce a past conviction at trial. The judge on Friday, however, ruled that it would be excluded from trial. But he raised the possibility that the government could use the conviction if Palfrey testified in her own defense.

Palfrey was sentenced to 18 months in jail in 1992 for a felony pandering conviction in California. In her sentencing memorandum, Palfrey confided to the judge that her parents had threatened to disown her if "this sort of thing" ever happened again. "They, as well as I, could not bear a repeat performance," she wrote in her 31-page plea for probation. "Therefore, there is no intent on my part to re-enter the escort business and chance such an occurrence."