Ex-Judge's Defense Team Accuses Feds of Misconduct

Ex-Judge's Defense Team Accuses Feds of Misconduct
New York Lawyer by Janet L. Conley - August 29, 2008

ATLANTA - Alleging "outrageous government misconduct" — including a sting in which federal agents gave marijuana to an ex-con, arranged his arrest and allegedly told him to try to bribe his way out of trouble — attorneys for a former South Georgia judge and his wife have filed two motions that could shake up a series of federal indictments claiming corruption in the Alapaha Judicial Circuit. The motions seek to disqualify federal prosecutors and dismiss federal indictments against Berrien L. Sutton, a former State Court and Juvenile Court judge in Clinch County, and his wife, Lisa Sutton, the administrator of the Alapaha Circuit.

The Suttons have been accused of honest services fraud via allegations that they took money from state taxpayers because they were overpaid for government jobs. Berrien Sutton resigned from his judgeship to avoid facing charges from the state Judicial Qualifications Commission. At least 11 people have been indicted in the federal court for the Middle District of Georgia on charges relating to alleged corruption in the Alapaha Circuit, a five-county region near the Florida state line. The key defendant is Brooks E. Blitch III, former chief judge of the Alapaha Circuit, who was the target of the sting operation involving the fake marijuana defendant. Most of the indictments of other court and law enforcement personnel were drawn from federal wiretaps of Blitch's chambers in the Clinch County Courthouse.

In their motions, filed this month, the Suttons' lawyers, Thomas A. Withers of Gillen, Withers & Lake in Savannah and Charles E. Cox Jr. of Macon don't just focus on allegations of prosecutorial wrongdoing involving their own clients. They allege prosecutorial misconduct against defendants in seven related cases as well. One of those cases involves Blitch. "The breadth of the government's misconduct demonstrates that the Suttons are a casualty of the government's blind, myopic pursuit of Judge Blitch," Withers and Cox write. Middle District U.S. Attorney Maxwell Wood did not return a call seeking comment. A spokeswoman for Wood's office said both Wood and his first assistant U.S. attorney, George F. "Pete" Peterman III, were traveling and would be unavailable until next week.

Arrest and attempted bribery

The Suttons' motion to dismiss alleges that the FBI investigated Blitch, once a friend and colleague of Berrien Sutton's, for years but failed to uncover any criminal activity. In 2006, the motion adds, the government "schemed to manufacture criminal charges against Judge Blitch." According to the motion, the government recruited a convicted felon named Eddie (called Eddy in other documents) Tucker in an attempt to entrap Blitch. "FBI agents gave Tucker five pounds of marijuana, $3,600 in taxpayer money, a recording device, a vehicle rented with taxpayer money and instructed Tucker to travel to Homerville, Georgia, where the agents had arranged to have him arrested," the motion says. The motion says that after Tucker was arrested by state authorities and released on bond, FBI agents gave Tucker some gold coins and told him to visit Blitch and ask for help in selling the coins.

Blitch is known to be an avid coin-collector; at his first appearance for his charges last month, a federal prosecutor said he was considered a flight risk because he had a $1 million collection that could easily be liquidated. "The agents hoped that Judge Blitch would arrange for a more lenient sentence for Tucker in exchange for the gold coins," the motion says. "However, Judge Blitch merely assisted Tucker in the sale of some of the coins and did not fall into the agents' bribery trap." Though the motion offers no further details, an Aug. 8 hearing transcript in a related indictment, the one against Clinch County Sheriff Winston Peterson, appears to confirm at least the allegation that the undercover operation existed.

In that transcript, two assistant U.S. attorneys in the Middle District, Leah McEwen and James Crane, refer to an "undercover operation" involving Tucker. One of the attorneys talks about that operation and the coins in the context of a discussion of several bribery allegations against Blitch. A call seeking comment from McEwen and Crane, placed to the spokeswoman for the U.S. Attorney's Office, was not returned by press time. Blitch's attorney, Robert S. Willis of Willis, Ferebee & Hutton in Jacksonville, Fla., noted that no bribery charges had been filed against his client.

He confirmed that Tucker was part of a sting aimed at Blitch. "I can't say it was an attempt to bribe; it was an attempt to tempt" Blitch that, Willis said, was "wholly unsuccessful." In a Thursday interview, Cathy Helm, the district attorney in the Alapaha Circuit, confirmed Tucker's arrest and indictment. She said she had no idea he was working undercover, and that her office was preparing to prosecute him when federal authorities informed them he was part of a sting. "When we were informed of that, we immediately dismissed the indictment," she said.

Tainting all cases?

The Suttons' lawyers note that much of the alleged wrongdoing by prosecutors occurred in related cases but cite the 1988 U.S. Supreme Court case of Bank of Nova Scotia v. United States, 487 U.S. 250, to support their use of those related-case allegations to seek dismissal of the Suttons' indictments. "The Supreme Court has recognized that, regardless of any prejudice to a defendant at trial, an indictment could be subject to dismissal if it was the product of 'a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment,'" the Suttons' attorneys write.

They go on to cite a string of cases indicating that dismissal of an indictment is warranted if the government's investigatory conduct is "so outrageous" that it violated "fundamental fairness" and was "shocking to the universal sense of justice." If Chief Judge Hugh Lawson of the Middle District of Georgia does not dismiss the indictments, the Suttons' lawyers ask, alternatively, for discovery of the alleged misconduct, which they say occurred before a grand jury, and for release of the grand jury transcripts.

Specific to the Suttons, defense lawyers Withers and Cox allege, among other things, that the government told Berrien Sutton that if he helped with their investigation it would offer him immunity, then failed to do so. They also allege that an FBI raid on Sutton's law office resulted in the seizure of confidential communications, including some between Sutton and his counsel. Much of the motion, however, focuses on alleged wrongs the government committed in other cases related to the Suttons'.

For example, the motion alleges that prosecutors attempted to set a perjury trap for Timothy Eidson, the Cordele Circuit's chief public defender, who was acquitted last week of charges involving false statements and obstruction of justice related to the government's investigation of Blitch. Other allegations include the government's alleged failure to inform five defendants — Clinch County Sheriff Peterson, former Clinch County Court Clerk Danny Lecesse, former Clinch County Magistrate Judge Linda Peterson and private attorneys George McCranie and Robert Sumner — when they testified before the grand jury that they were targets of the grand jury's investigation. The motion also alleges that the Petersons, who are in-laws, and Lecesse were not informed of their Fifth Amendment privilege against self-incrimination.

Citing the U.S. Attorneys' Manual, the motion says, "It is the policy of the Department of Justice to advise a grand jury witness of his other rights if such a witness is a 'target' or 'subject' of a grand jury investigation." According to the motion, prosecutors' actions show a "pattern of misconduct" and a "pattern of deceit" that the government undertook in a "calculated fashion." The Suttons' defense team caps their argument by expounding on the duty of prosecutors to do justice before they convict someone. Citing a U.S. Supreme Court case, they attempt to outline a prosecutor's appropriate role: "While he may strike hard blows," they write, "he is not at liberty to strike foul ones."

Conflict of interest?

Nor, according to the defense team, is a prosecutor at liberty to engage in conflicts of interest—especially when those conflicts may involve a financial interest. In a separate motion to disqualify the Middle District U.S. Attorney's Office, filed Aug. 21, the Suttons' lawyers argue that the office has "direct conflicts of interest" that affected their prosecutorial decision making.

Their allegations relate specifically to AUSA Donald L. Johstono Jr., who earlier this year threw his hat in the ring for the Alapaha Circuit Superior Court judgeship Blitch vacated, like Berrien Sutton, in order to avoid an ethics prosecution by the Judicial Qualifications Commission. According to the motion, after Blitch announced that he'd leave the bench, Johstono "promptly developed a scheme whereby he would succeed Judge Blitch, despite the fact that AUSA Johstono was not a resident of the Alapaha Circuit and resided over 125 miles away." The problem, according to the motion, is that Johstono is currently prosecuting a forfeiture action against a house in Atkinson County owned by the Suttons.

Federal prosecutors, the defense team alleges, are prohibited by the Ethics in Government Act from representing the government in any matter in which they have an interest. Johstono had a "direct financial interest in the position of Superior Court Judge for the Alapaha Judicial Circuit, of which his office was no doubt aware and approved," according to the motion. Johstono "has made a naked attempt to gain a position made possible as a result of his Office's investigation and prosecution of this matter," the motion alleges.

"Whether through his own motives or as part of an insidious and highly unorthodox and improper attempt by the U.S. Attorney's Office to literally infiltrate the Alapaha Judicial Circuit, AUSA Johstono's actions are—at minimum—heavily suspect." Johstono did not return a call seeking comment. That conduct violated federal law and skirted the Georgia Rules of Professional Conduct, and casts doubt on the impartiality of the proceeding, according to the motion. It goes on, "The circumstances present the inherent danger that the United States' Attorney's Office might have been more interested, or could reasonably be perceived as being more interested, in securing Judge Blitch's seat with one of its own instead of securing justice."

The cases are U.S. v. Berrien Sutton and U.S. v. Lisa Sutton, 5:08-cr-40 (M.D. Ga.).