Federal judge wants more information on indicted Portage mayor's emails
Chicago Tribune
March 15, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-hearing-prosecutors-emails-st-0316-20180315-story.html
A federal judge wants more context before he decides if potentially privileged emails between indicted Portage Mayor James Snyder and his defense attorneys viewed by prosecutors would warrant them being disqualified from the case.
Judge Joseph Van Bokkelen is seeking more information from Snyder's defense team and federal prosecutors before deciding if emails containing privileged communication, saying he lacked enough context to determine if the messages should have been shielded.
The emails looked routine, Van Bokkelen said, and none of the documents that went through the screening appeared privileged.
"There's no smoking guns," Van Bokkelen said.
Jackie Bennett Jr., Synder's defense attorney, appealed to the judge saying the prosecutors handling the mayor's corruption trial were able to view privileged communications. Prosecutors have said the emails in question did not contain any privileged information.
Van Bokkelen said the more information he was able to view would give context to what the emails mean to the defense and if they contain any privileged material. The judge said it's possible that emails that appear innocuous could have significant meaning in the context of the defense strategy.
"It could be a big deal," Van Bokkelen said.
Snyder and John Cortina, of Kustom Auto Body in Portage, were charged in November 2016 with allegedly violating a federal bribery statue. Federal prosecutors said the mayor allegedly solicited money from Cortina and "Individual A" and gave them a towing contract for Portage.
Snyder received an additional bribery indictment for alleged accepting $13,000 in connection with a Board of Works Contract, and allegedly obstructing internal revenue laws.
Snyder and Cortina both pleaded not guilty to the charges last year, according to court documents.
The trial for Snyder and Cortina is tentatively set to start in June, according to court documents.
The allegations against the prosecutors say email communications between Snyder, defense attorney Thomas Dogan, and Thomas Kirsch II, who was then the mayor's defense attorney before being appointed as U.S. attorney, were seized in 2015, according to court documents.
Kirsch has recused himself from Snyder's case, according to court documents, and U.S. attorney for the Northern District of Illinois would oversee and manage local prosecutors handling the case.
During the discovery process for Snyder's trial, Bennett said it was found that documents reviewed by the prosecutors contained confidential attorney-client material, according to court documents. Bennett said federal investigators used a "taint team" to review the email communication seized, according to court documents, but that review failed to shield all privileged communications from the trial team.
"We think they made a mistake and they don't want to acknowledge they made a mistake," Bennett said.
Assistant U.S. Attorney Jill Koster said, in court filings, investigators screened the emails using a three-stage process, which first started by flagging emails using a system at FBI headquarters in Washington, D.C.; then another team of FBI employees filtered any emails flagged by the system; and finally an assistant U.S. attorney not involved in the case reviewed to ensure no privileged communication survived the quarantine process.
In February 2018, an attorney from the Northern District of Illinois reviewed the contested emails and concluded they did not meet the legal standard for attorney-client privilege, according to Koster.
Bennett said federal investigators did not inquire if there was a coordinated defense or any other common interest between parties in the emails.
"In none of those stages did they ask that question broadly enough," Bennett said.
Koster said investigators took a lot of steps to make sure privileged material was screened out.
"There is no harm here of constitutional dimension to the defendant," Koster said.
Just because the emails contain Snyder's defense attorney's name, it does not mean they are privileged communications, Koster said.
"It is the defense's burden to prove these emails are privileged," Koster said.
The judge asked the prosecutors and defense attorneys to submit additional material that would help him determine if privileged communication between Synder and his attorneys were exposed.
Absent more information, Van Bokkelen said he can't connect the dots to see if the emails are what the defense claims.
"That's all I'm looking for is the dots," Van Bokkelen said.
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