By Carrie Johnson
Washington Post Staff Writer
Tuesday, October 16, 2007
A defense lawyer refused a onetime client's request to tell prosecutors that an e-mail he fabricated had been an honest mistake, she testified yesterday, because "I didn't believe it was a mistake."
The scene that unfolded in an Alexandria courtroom offered the unusual spectacle of a defense lawyer testifying against her former client while her own attorney sat a step away from the witness stand.
Testimony by Bree N. Murphy came in the second week of a criminal trial against her former client, Charles E. Johnson Jr., who is accused of conspiracy and fraud in relation to a series of questionable advertising deals with AOL that boosted his company's revenue six years ago.
Last year, U.S. District Judge Walter D. Kelley Jr. declared a mistrial in the government's case against Johnson, founder and former chief executive of the software company PurchasePro. The decision came after Murphy and her boss, Preston Burton, withdrew from Johnson's case, citing the e-mail fabrication and the prospect that they could be forced to testify against their client.
Federal prosecutors added a criminal charge against Johnson, a flashy Las Vegas entrepreneur, before his second trial began, accusing him of obstruction of justice for tampering with messages that he provided to his defense team for use in court.
Johnson has asserted his innocence. In court papers unsealed last week, he offered several explanations for altering e-mails, including a desire to test whether his lawyers had been working hard enough and a misunderstanding based on technology.
But in their own testimony, his former lawyers have contradicted Johnson on critical points, from the number of phony e-mails to when they were created and how they were uncovered.
Under questioning yesterday by prosecutor Brigham Q. Cannon, Murphy testified about Johnson's e-mail alterations in the months before last year's trial. The issue came to a head Nov. 7, after defense lawyers could not verify the authenticity of a 2001 e-mail Johnson gave them to use during cross-examination of an important witness.
Following their usual practice, the defense lawyers turned to their government adversaries to see whether they had copies of the messages. The next morning, a prosecutor and an FBI agent approached Burton before court and said they thought the message had been fabricated, Murphy said.
She recalled that early Nov. 9, Johnson approached his lawyers in a temporary office that the law firm had rented near the Alexandria courthouse and asked them to tell the government about what he called "the mistake."
"He wanted to get me to agree with him that this was all a mistake," Murphy said. "I sort of avoided answering the question. . . . I didn't believe it was a mistake. I didn't feel comfortable approaching the government with that."
Johnson's current defense lawyer, Yale Galanter, objected to Murphy's comment, but the judge allowed the remarks, saying, "She's already said it, so let's move on. It's no great secret." The judge is to administer a verdict because Johnson waived his right to a jury trial.
As Murphy spoke, Johnson avoided eye contact with her. Instead, he took notes and whispered to his lawyer. Occasionally he glanced behind him, to a bench where three supporters from his home state of Kentucky sat, one reading silently from a green leather Bible as testimony continued.