05242018 - News Article - Portage mayor back in federal court as a judge reviews whether prosecutors accessed privileged communication

Portage mayor back in federal court as a judge reviews whether prosecutors accessed privileged communication
Chicago Tribune
May 24, 2018
http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-snyder-evidence-hearing-st-0525-story.html

Witnesses walked a federal judge through the process used to filter out potentially privileged emails between indicted Portage Mayor James Snyder and his attorneys.

Two witnesses testified Thursday in Hammond’s federal court about precautions taken to ensure potentially privileged communications between Snyder and his attorneys did not reach federal prosecutors after the communications were seized in 2015. Snyder’s defense attorneys argue the filter process failed and should warrant either the charges being dismissed or prosecutors disqualified from the case.

Thursday’s hearing continued vetting an issue that attorneys argued in a closed-door session earlier this month. Judge Joseph Van Bokkelen sealed the prior day-long hearing since arguments presented could reference attorney-client material. No decision was reached Thursday. A new hearing has been set for 10:30 a.m. Wednesday.

Eric Field, an FBI supervisory special agent, said investigators set up a three-stage review of emails seized. The emails were first screened by agents at FBI headquarters in Washington, D.C.; then by two agents in Indiana; and finally by an assistant U.S. attorney in Hammond, Field said.

Assistant U.S. Attorney Jill Koster asked about the terms used during the first screening process and if it included names of Snyder’s then defense attorney and variations of names of attorneys representing other people in the investigation.

Field said those terms were on the list of screening terms given to agents in Washington.

Once that was done, Field testified the files were given to agents in the Merrillville field office for review. Field said he did not look at any of the emails.

“I told them to be overly cautious with how they were doing the review process,” Field said.

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.

Defense attorney Jayna Cacioppo asked about the search terms initially used during the first stage of review and if it was only limited to what Field told programmers to use.

“The term attorney was not included?” Cacioppo asked.

“That is correct,” Field said.

Cacioppo asked if “Kirsch,” “legal” or “Winston Strawn” were not used.

“That is correct,” Field said.

Koster said Field testified he knew Kirsch was then Snyder’s attorney and that the search terms included both Kirsch’s work email and the domain name for his former firm, Winston Strawn.

“Correct,” Field said.

Jesse Rodgers, a litigation technology specialist with the U.S. Attorney’s Office, said he handled setting up a digital workspace for the assistant U.S. attorney who continued the email screening process. Rodgers said only that single attorney could access the potentially privileged emails during her review.

Koster asked if any of the prosecutors could access the same workspace as that attorney.

“That would obviously defeat the purpose,” Rodgers said.

After the morning’s round of testimony, Van Bokkelen again sealed court proceedings. Attorneys continued discussing the potentially privileged material, and Van Bokkelen said he’d allow limited questioning of Kirsch, if necessary.

“In this case, I think caution requires closing of the courtroom,” 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 allegedly accepting $13,000 in connection with a Board of Works contract, and allegedly obstructing Internal Revenue Service laws.

Snyder and Cortina both pleaded not guilty to the charges, according to court documents.

Van Bokkelen moved the start of Snyder and Cortina’s trial to October, according to court documents.