Lobbyist's Conviction Thrown Out in Espy Case|
By Charles R. Babcock
The ruling rekindles earlier charges by defense lawyers that independent counsel Donald C. Smaltz has used race in determining where to file indictments in his Espy probe.
U.S. District Judge Thelton E. Henderson did not directly mention race in his Feb. 20 ruling, which dismissed the illegal gratuity count Richard Douglas was convicted on in November.
Douglas, a longtime Espy friend who worked for Sun-Diamond Corp., a collective of California nut and fruit growers, had been found guilty of giving Espy more than $7,000 in gifts, including a trip to the U.S. Open tennis tournament with his girlfriend, and nearly $2,500 in luggage.
The jurors deadlocked on another gratuity charge and acquitted Douglas on six charges related to campaign contributions to Espy's brother, Henry.
The judge said neither of the gratuity charges "was begun, continued or completed in the Northern District of California." He noted: "For reasons beyond the comprehension of this Court, the OIC [Office of Independent Counsel] chose to bring this case in the Northern District of California despite its knowledge of the venue problem."
John M. Dowd, a lawyer for Douglas who had accused Smaltz of moving the case to California to evade a majority black jury pool in Washington, said yesterday "the reason the judge couldn't comprehend this is that law doesn't recognize race as a basis to bring a charge."
In court papers, Smaltz argued that he brought the Douglas case in California because it was the only common venue for the original 19 counts in the indictment. A spokesman for Smaltz said yesterday no decision has been reached on whether to appeal Henderson's ruling or refile the gratuity charges.
Smaltz was appointed to investigate Espy in September 1994 and has won a string of convictions despite numerous complaints from defense attorneys that he has strayed too far from his original mission of investigating gratuities to Espy and has done so with questionable tactics. For example, when Henry Espy was indicted in New Orleans, his attorney, Abbe David Lowell, cited the comparative lack of black potential jurors in Louisiana in getting the trial moved to Mississippi. The judge there dismissed the charges after the prosecution case was presented.
A Washington grand jury filed a 39-count indictment against Espy last August. The trial has been held up while Smaltz appeals a judge's decision to dismiss four of the counts.
The San Francisco grand jury indicted Douglas in October 1996. That was shortly after a Washington jury convicted Sun-Diamond of giving gratuities to Espy through Douglas. The company is appealing that ruling.
Dowd raised the race issue a month later. "What we are asking Smaltz is . . . Why have you moved the case you just tried against Sun-Diamond in the District of Columbia to California?" he said in an interview at the time. "The only reason is, they don't want to try Richard Douglas, who is black . . . before a black jury in the District."
Douglas trial attorney Elliott Peters raised the issue in a pretrial motion last October, citing what it called Smaltz's "focus on race in making strategic and tactical decisions during his term of appointment." It added that "The color of Mr. Douglas' skin has already driven many of the OIC decisions. . . . This conduct can go no further."
Peters attached a year-old affidavit from D.C. attorney Thomas E. Wilson, which said prominent black Washington lawyer Willie Leftwich told him that Smaltz wanted Leftwich in the fall of 1994 to put together mock jury panels "to test the viability of bringing a prosecution against Espy in Washington." According to Wilson, Leftwich also told him that Smaltz said he was going to establish an office in Virginia where it would be easier to indict Espy.
Smaltz's office fired back, calling Wilson's sworn statement "patently false hearsay" and asking the judge to strike the pretrial motion as "inexplicably untimely, unfounded, needlessly inflammatory, and legally inaccurate." The independent counsel's motion also asked the judge to order the defense not to "raise the ugly specter of racism" at trial.
Smaltz attached a strongly worded personal affidavit defending his decision to try Douglas in California and noting that the charge of race-based decisions, "even when made without basis, leaves an indelible stain and tarnish on the persons that are on the receiving end of these charges." In addition to denying Wilson's claims, Smaltz said he had never met with Leftwich at all.
Leftwich supplied an affidavit which said he met "with an individual . . . who I understood to represent himself to be" Smaltz, but never discussed "forum shopping to avoid racial issues." Leftwich and Wilson declined to comment about their affidavits.
The Smaltz spokesman said the office was located in Virginia to get available and inexpensive space.
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