The "Cesspool" Gets A New Twist; Judge May Be Asked To "Unring A Bell". Amazing. Read More.

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Return of road-bid tape asked
Prosecution says release was mistake
By Tom Loftus

FRANKFORT, Ky. -- The prosecutor in the federal road-bid tampering case says copies of a confidential tape recording were inadvertently given to defense attorneys last week, and he wants them back.
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However, attorneys for the defendants -- road contractor Leonard Lawson, former Transportation Secretary Bill Nighbert and Lawson employee Brian Billings -- say they are entitled to the recording and won't return it unless required by the court.

Assistant U.S. Attorney Ken Taylor filed a motion yesterday for a hearing at which he will ask the court to order the defense attorneys to return the recordings and not use them in preparing for trial.

Lawson and Nighbert are charged with conspiracy and bribery. An indictment returned earlier this month alleged that Nighbert leaked confidential bid information during 2006 and 2007 to Lawson, allowing him to maximize the profits he made on state road contracts.

The two and Billings also were indicted on obstruction of justice charges alleging that they tried to prevent the key prosecution witness, former state engineer Jim Rummage, from cooperating with investigators.

All three pleaded not guilty on Friday to all charges. Also Friday, the prosecution turned over to the defense attorneys evidence gathered in the case.

But Taylor's motion states that prosecutors inadvertently turned over part of a tape to which the defense was not entitled. In a letter he sent Monday to the defense attorneys, he described it as a "confidential work product of this office."

Taylor said in the letter that, on March 12, Rummage took a call from attorney Jon Woodall and recorded that conversation as part of the investigation. But Taylor said the recorder was left running after that conversation and also recorded a discussion among investigators and Rummage involving "strategy and planning with regard to a return call."

Taylor asked the attorneys to return the recording of the strategy discussion.

But the three attorneys rejected the request in a response this week.

Larry Mackey, an Indianapolis attorney for Lawson, said he already had listened to the tape and his legal research of the matter turned up nothing requiring him to return it.

"The first duty to protect such material rests upon you," Mackey said in his letter of response. "I would note that precisely six months passed between the time the tape was made and when it was provided to us."

Other defense attorneys gave similar reasons for declining to surrender the tape without a court order.

"I am not sure of the identity of the other people (speaking on the tape), and without knowing that, I'm not sure I can properly gauge the work product claim," Howard Mann, Nighbert's attorney, said in his response to Taylor.

Kent Wicker, who represents Billings, said he was entitled to the material and Taylor's disclosure of the tape destroyed its status as being protected.

Woodall, a Lexington attorney, said he has represented Lawson's companies on business matters and is a friend of Lawson.

He said he was asked earlier this year by an employee of the Lawson companies whom he declined to identify to call Rummage because Rummage needed legal representation.

Woodall said he called Rummage, but Rummage first said he had a bad phone connection and asked if he could call back. When Rummage returned the call, Woodall said Rummage talked about being questioned by investigators. Woodall said he asked Rummage if the matter could involve Lawson, and Rummage said yes.

At that point, Woodall said he could not represent Rummage but gave him the name of a different attorney. Woodall said that when he asked Rummage if he would like names of other attorneys, Rummage became uneasy and ended the call.

Woodall did say he believes he is the person Lawson referred to as "JW" in transcripts of phone conversations Rummage recorded with Lawson earlier this year.

The indictment quotes Lawson as telling Rummage: "They're scarin' the hell out of you is what they're doin'. … What you need to do is -- is call JW (Lawson's attorney) and, uh, tell him what's going on … And, that ain't gonna cost ya nothin'. "

Editor's comment: To ask for the tapes back is like asking for a bell to be unrung. This is just amazing stuff, and if these kinds of mistakes are to be expected from the prosecutor, it's going to be a very "long day" for the government and its case!