The ACR Blog does not intend to duplicate the great work done at Unheard No More! Rather, we shall strive to be complementary to her. The problem is that Wendy is so thorough, it is difficult to add anything to complete her work. For a comprehensive factual background, read Wendy's latest post here and an earlier related post here. This post will only highlight one small piece of this matter that is of particular interest to the ACR Blog.
In the May 29, 2009 Motion to Remedy Prosecutorial Conflict of Interest, Mr. Ring, through his attorneys, questions the integrity of Justice Department attorneys Michael Leotta (District of Maryland), Nathaniel Edmonds (Fraud Section) and Michael Ferrara (Public Integrity Section). Mr. Ring's lawyers also attack the integrity of widely respected DC attorney Henry Schuelke, who will almost certainly be a witness for the prosecution:
The defense wants to "avoid the prejudice to Mr. Ring caused by Mr. Schuelke's dual roles as prosecutor/investigator and witness."
Motion to Remedy Prosecutorial Conflict of Interest; Page 5
Oddly, even though defense counsel suggests that "Mr. Schuelke's dual roles" would "cause" "prejudice to Mr. Ring", the Government reveals to us that "Lead defense counsel [presumably Richard Hibey] is known to be a long-time friend of Mr. Schuelke." (Government's Opposition to Motion to Remedy Alleged Prosecutorial Conflict of Interest, p.4). This is why I could never be a lawyer. I could never suggest that the role of a long-time friend would cause prejudice in a court case without cause. Perhaps I should be thankful that Mr. Hibey is not my friend.
It seems to the ACR Blog that the only evidence that there is any prosecutorial conflict of interest in USA vs. Kevin Ring resides in the vivid imaginations of the defense team. Honestly, the ACR Blog doesn't expect this motion to lead to any adverse result to the prosecution.
So why is the defense pursuing this?
I've alluded to my belief that the defense team simply intends this and other motions to be distractions to the prosecution. On page 1 of the Government's Opposition, the Justice Department says basically the same thing:
[I]t is apparent that the defendant will continue to use Mr. Welch's supervision of the Public Integrity Section and the Stevens matter as an excuse for filing distracting motions.
A commenter offered a very plausible explanation (June 5, 2009; 8:57 am) as to why Mr. Ring's defense team is making another unrelated motion that is unlikely to succeed. The reasoning the commenter gave for the unrelated motion seems to apply to the one we're discussing, too:
Defense attorneys have to put much on record to mitigate future claims re ineffective assistance of counsel. When defendant is comvicted the first round of appeals caca is to blame the lawyer. They do have to vigorously defend the client no matter how far fetched the legal arguements might seem.
The Justice Department offers another possible explanation. Among the laundry list of "remedies" for the non-existent prosecutorial conflict of interest the defense team suggests are:
1. Disqualification of the entire prosecution team.
2. Dismiss Counts IX and X, two counts that depend on Mr. Schuelke's testimony.
3. Sever Counts IX and X.
4. Prohibit the testimony of Mr. Schuelke.
Motion to Remedy Prosecutorial Conflict of Interest, pp. 8-9
On page 9 of the Motion to Remedy, Mr. Ring's lawyers lobby for remedy 4, prohibiting Mr. Schuelke from appearing as a witness. In fact, the defense seems to admit that proposed remedies 1-3 are too extreme. ("Short of [dismissing or severing Counts IX and X] and short of disqualifying the team as a whole and requiring the government to begin anew, the Court should require the United States not to call Mr. Schuelke as a witness.")
[Oddly, Mr. Ring and his attorneys never propose the obvious remedy already completed by the Justice Department: The removal of Mr. Welch from any role in this case.]
Why are Mr. Ring and his lawyers trying so hard to prohibit Mr. Schuelke from testifying against Mr. Ring? The Justice Department tells us what this is all about on pages 7-8 of the Government's Opposition:
Presumably, the defendant will not concede that he had criminal intent when he lied to Mr. Schuelke after being told that his statements could likely be shared with federal law enforcement authorities - he has, after all, pled not-guilty to Counts Nine and Ten. Mr. Schuelke's long experience in investigating complicated matters will serve to support the Government's case that defendant acted with criminal intent. Moreover, if factual issues in Mr. Schuelke's testimony are disputed, the Government will likely be required to also call Mr. Shields to rebut defendant's statements or arguments that Mr. Schuelke did not testify truthfully or completely. The jury then is likely going to be required to weigh the credibility of both Mr. Schuelke and Mr. Shields in evaluating the consistency of their testimony. Defendant's attempt to remove Mr. Schuelke from being available as a witness is unnecessary and would deprive the Government from proving its case in the manner it believes is most effective.
See what is going on here? Mr. Ring's attorneys are not satisfied with the removal William Welch, the source of the imaginary conflict of interest and a very real distraction in this case. That is apparently not their real objective. No, Mr. Ring's attorneys want to prohibit the testimony of the widely respected Mr. Schuelke because they know his testimony will be devastating to their client. Mr. Ring's motion should be categorically denied. With any luck, Judge Huvelle will also include a stern warning to his legal team to stop wasting the Court's time with silly and irrelevant motions that seek remedies for problems that do not exist. And to the extent that a problem does exist, the suggested remedies do not even address the underlying problem.
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