In a decision that should surprise no one, a federal magistrate ruled yesterday that former Alabama Governor Bob Riley will not have to testify in the federal bingo trial that heats up today with the calling of the first witness in Montgomery. Could this be another step in a high-level effort to make sure the public never knows the full extent of the Jack Abramoff scandal? We will examine that question in a bit, but what about the specifics of the subpoena ruling?
At first glance, Sunday's ruling smells of the usual political maneuvering and judicial corruption that has come to mark federal courts in Alabama. But upon further review, the finding from U.S. Magistrate Judge Terry Moorer might not be a complete victory for Riley. (You can view Moorer's order at the end of this post.)
The bingo trial is a national story because it grew largely from $13 million that Mississippi Choctaw gaming interests spent to help get Riley elected in 2002. Those funds reportedly were laundered through Republican felons Jack Abramoff and Michael Scanlon, meaning the bingo trial touches heavily on perhaps the worst political scandal in American history.
Moorer quashed a subpoena from gambling magnate Milton McGregor, seeking to have Riley and three other current or former state officials called as witnesses. Moorer's finding, however, was "without prejudice," meaning the issue can be raised again later in the trial. And Moorer indicates that McGregor might indeed have a strong case for seeking testimony from Riley and the other state officials at some point in the proceedings.
The decision to quash the subpoena was based largely on a U.S. Supreme Court case styled United States v. Nixon, 418 U.S. 683, 698, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). That case states that decisions to allow such subpoenas must be based on three factors: (1) relevancy; (2) admissibility; (3) specificity.
For the purposes of his analysis, Moorer states that he assumes McGregor has met the standards for relevancy and admissibility. Moorer goes on to state that a final ruling on admissibility must rest with Myron Thompson, the U.S. district judge in charge of the case. But for current purposes, Moorer states, he is finding that the testimony could be both relevant and admissible. (An Associated Press story states that McGregor's attorneys "failed to show the relevancy of Riley's testimony." That is incorrect. Moorer, in fact, states that the testimony could be relevant.)
The key factor in Moorer's finding was item No. 3, specificity. Here is the crux of the magistrate's decision to quash:
Where Defendant McGregor undeniably fails is specificity. The entirety of the argument in support of his request for these witnesses is that they are “necessary for the defense” for use in impeachment and credibility. Counsel even admits that he may or may not need these witnesses depending on the testimony of certain government witnesses. Further, McGregor’s counsel acknowledges that he does not know exactly that the witnesses would say or what information they may actually possess because he has not talked to or tried to question these witnesses. As such, he is unable to overcome the third hurdle of specificity. Consequently, the motions to quash should be granted.
Moorer, however, leaves the door open for McGregor's lawyers to revisit the matter. And that means Riley should not enjoy his motorcycle trip to Alaska too much:
The Court acknowledges that this is a complex criminal proceeding and that the information sought may very well be not only relevant and admissible at a later date, but also counsel may be able to satisfy the specificity requirement once the government concludes its case.
We have serious questions about several issues connected to the decision to quash the Riley subpoena:
(1) Is Terry Moorer truly an objective, disinterested jurist in this matter?
(2) Did Moorer correctly apply case law in this matter?
(3) What about important constitutional issues raised by McGregor?
(4) Was Moorer's decision part of a larger effort to obscure the depth and full depravity of the Jack Abramoff scandal, in which Bob Riley had a front-row seat?
We will examine these questions in upcoming posts. But for now, our guess is that Bob Riley and his supporters should not get too cocky about their "victory" on Sunday.
Riley Quash Subpoena