The federal judge in Brooklyn who was to hear the Abscam bribery cases against four congressmen, starting Monday, withdrew yesterday after being criticized by defense attorneys.
The case of Rep. Michael O. (Ozzie) Myers (D-Pa.), is still scheduled to begin next week, under the direction of another judge, officials said.
U.S. District Court Judge Jacob Mishler said he made his surprise announcement to avoid even the appearance of impropriety. Defense attorneys had challenged his ability to decide pretrial motions fairly and impartially.
Though Mishler did not say so in his memo withdrawing from the case, his decision was affected by arguments over his handling of a civil case in 1978 that was related to the FBI's undercover Abscam, according to sources.
Raymond A. Brown and Henry Furst, attorneys for Camdem, N.J., Mayor Angelo Errichetti, one of Myers' codefendants, asked Mishler to disqualify himself because the government had given the judge secret court papers in an effort to head off a discovery in a civil suit against Abdul Enterprises, the FBI's cover corporation in the Abscam investigation.
Reps. Raymond F. Lederer (D-Pa.), Frank Thompson (D-N.J.) and John M. Murphy (D-N.Y.) also have been indicted on conspiracy and bribery charges, and were supposed to have appeared before Mishler.
In a scathing attack on the judge, Brown accused Mishler and the government of "knowing and intentional deception of a party [in the suit] and the public." Brown said the sealed government affidavits were prohibited ex parte communications and charged the judge with permitting a "sham proceeding" by taking the government's side in the suit.
The civil suit was brought by some men who had been arrested on charges of trying to sell phony certificates of deposit to Abdul in the fall of 1978. Abdul was a front for the FBI operation at the time, but it had not yet begun to snare public officials in its net.
The charges were dropped, apparently in an attempt not to blow the cover of Abdul, but the arrested men and their bank filed suit to recover the money they thought they were owed for the certificates of deposit.
Brown accused Mishler of knowing that Abdul's attorney was "a ringer" who was to represent the interests of the government. "the court thus participated in a fraud on a party, the internatinal Bank and Trust Co. . . . and allowed itself to perpetrate a ruse in order to protect the cover of Abdul Enterpprises as an FBI undercover operation," he said. "Never before has a branch of the judiciary embarked upon a legal proceeding with the objective of helping one of the parties perpetuate a scam. In doing so, this court departed from any proper judicial function and became an arm of the U.S. attorney's office."
Mishler's improper conduct in the civil suit continued through June of last year, Brown charged, when he accepted an affidavit that contained "highly prejudicial information" about Brown's client, Errichetti.
Mishler denied the motion that he disqualify himself, but the defense quickly appealed it to the U.S. Circuit Court of Appeals in New York City. Mishler recused himself before the appeals court could consider the motion.
Throughout the pretrial hearings, defense attorneys in all the Abscam cases in Brooklyn have scarcely been able to disguise their anger at Mishler's conduct. "He and Puccio [Abscam prosecutor Thomas Puccio] played handball, with the defense as the ball," said one lawyer.
The Myers trial will be handled by Judge George Pratt, with jury selection set to begin Monday. A delay is possible, because the court of appeals has not yet ruled on Myers' challenge to Mishler's denial of another motion.