Wednesday, July 29, 2015

Lawyers for McGregor unearthed FBI agent's affair with court reporter, but prosecutors tried to cover it up

Mallory McCutchin
Federal prosecutors knew about an FBI agent's affair with a court reporter in the Alabama bingo case and tried to cover it up, according to a recently unsealed motion from lawyers for VictoryLand owner Milton McGregor.

Louis Franklin, assistant U.S. attorney for the Middle District of Alabama, knew about the affair between agent Keith Baker and court reporter Mallory Johnson (nee McCutchin) for at least 11 days before revealing it to chief prosecutor Justin V. Shur, who was deputy chief of the Public Integrity Section at the U.S. Department of Justice (DOJ).

The prosecutorial team then tried to cover up the matter by filing a motion in limine, seeking to make the subject of extramarital affairs off limits during questioning of "any government witness." Only when McGregor's lawyers refused to agree to such a stipulation did the affair became known to all parties.

What picture does this paint of Louis Franklin, who also played a central role in the Don Siegelman prosecution--especially after the supposed recusal of U.S. Attorney Leura Canary? It indicates Franklin hid critical information, even from his own DOJ superior. And once Shur finally knew about the Baker affair, the government's reaction was not to be forthcoming. Instead, it tried to permanently hide the information via a motion in limine.

How did the prosecution's attempted cover up take shape? Here is how the McGregor defense team describes it in the unsealed motion:

The reasonable inference is that Government counsel [Franklin] learned of it, on or about May 13, from Agent Baker or from the Court Reporter. Why would either of them have told him on May 13 and not long before? The only reasonable inference is that they told him because they feared they had been caught--because just two days before that, on May 11, Mr. McGregor filed his witness list, and it included the name of the court reporter.

How ugly is this? From the McGregor motion:

It is fair to infer, at least unless the government explains otherwise, that this is what happened: Government counsel [Franklin] was affirmatively trying to keep Agent Baker's secret a secret even from Mr. Shur, and that counsel felt compelled to tell Mr. Shur only when there seemed a real danger that the defense already knew.

The McGregor team repeatedly uses the word "fraud" to describe Baker's actions. And the same word apparently applies to McCutchin. Multiple defense attorneys state in the unsealed documents that she falsely certified on transcripts that she "was not in any manner interested in the results" of the case. In fact, of course, she was engaged in a sexual relationship with the chief government investigator, tainting much of the evidence in the grand-jury process--and the resulting indictments. From the McGregor motion:

When Agent Baker failed to the tell the Court (or, according to the Government, to tell the prosecutors) that the Court Reporter's certification was a misrepresentation, and failed to tell the Court or others of his own actions that had tainted the Grand Jury process, he withheld material information that he had a duty to disclose. He also, quite likely, affirmatively misled his supervisors, his co-workers, and his wife; but whether or not he made affirmative false statements, he was party to an intentional deception through the Court Reporter's misleading certification, and through failure to disclose under circumstances where disclosure was required. In other words, he engaged in an egregious pattern of deception and fraud . . . . He ignored the interests of justice . . . in order to pursue his own personal agenda. 

The impact of that deception likely still is being felt because of Baker's missing text messages, which could shed considerable light on the government's cover up--and who exactly was involved:

Agent Baker's secretive affair helps explain another aspect of the case, which is why [his] "text messages" from the period of January through mid-June 2010 are missing. . . . The evidence of the affair provides an explanation, and this evidence makes it more probable that Agent Baker intentionally deleted his text messages from this period in order to cover his tracks.  

After reading the unsealed documents, a reasonable person must wonder how U.S. Judge Myron Thompson ever let this case go to one trial, much less two. In fact, the McGregor lawyers note the double standard that apparently was in play:

If the shoes were on the other feet, someone would be prosecuted. Imagine if a target's lawyer was having an affair with the grand jury court reporter, and if the court reporter nonetheless certified that she had no interest whatsoever in the outcome of the matter, and if the target's lawyer knew of that false certification. The Government's outrage would be off the charts, and people would be prosecuted. Yet when it is the Government's agent who engages in such egregious and deceptive conduct, the Government contends that it is irrelevant.


Anonymous said...

Ah, so this explains the cover up. Montgomery Advertiser talked about a cover up, but it wasn't clear to me exactly what they were talking about. This makes it clear--Louis Franklin was behind it. Given his behavior in the Siegelman case, and now this, I would say that man needs to be separated from his bar card.

legalschnauzer said...

You nailed it, @8:10, and that is the big story here. Louis Franklin is an absolute sleazebag. He knew about this for almost two weeks without ever telling his DOJ superior. If you agree with the statement, "the cover up is worse than the crime," then Louis Franklin is the real criminal here, more so than Baker or McCutchin.

Anonymous said...

Just when you think Montgomery, AL, can't get any sleazier, along comes this.

Anonymous said...

So Louis Franklin, the "House Negro" for Leura Canary, is at it again. Does he get away with this stuff because higher ups are afraid to prosecute a corrupt black prosecutor? I'm sorry, I don't mean to make this sound like a race issue. But how does this guy stay in a position of authority, where he can put innocent people of all colors in jail? Regardless of his skin color, Louis Franklin is evil--he's proven it over and over. It's time for someone to have the courage to take the guy down.

Avenger said...

This is one of the most sickening things I've ever read, maybe even more powerful than your post from yesterday. Heads need to roll!

Spaz said...

Thank God for Legal Schnauzer. Starting to think the Montgomery Advertiser provided a sanitized version of these events--no mention of court reporter's name, no mention that Louis Franklin was behind the attempted cover up, a dismissive mention of Bob Riley's name. You are providing the real goods.

Anonymous said...

I used to think Myron Thompson was a good federal judge, at least by Alabama standards. But this case makes him look pretty darned bad. I guess he's better than Mark Fuller, but what does that say?

legalschnauzer said...

Like you, @9:52, I used to hold Myron Thompson in fairly high regard. But reviewing the unsealed documents from the bingo trial has changed my view. I should say that the documents in my possession are lengthy and complex, so I'm still trying to wrap my head around everything. But this much seems clear regarding Thompson's actions:

* He should have dismissed the bingo charges, against all defendants. The case was hopelessly tainted and never should have gone to one trial, much less two.

* Thompson should have spoken up publicly about the issues discussed in chambers, especially after dismissing the case.

* Thompson should have taken Jim Parkman's advice and referred this to the DOJ for investigation.

* Thompson should have publicly sanctioned Louis Franklin and referred him--and Baker and McCutchin (possibly others)--for criminal investigation.

* Thompson should have pushed harder for information regarding Keith Baker's missing text messages. The unsealed documents show defense lawyers pushing for e-mail information, too, and it's not clear that Thompson ever forced that information into the open.

* Thompson talked a good game behind close doors, but in his actions, he treated the prosecution with kid gloves.

* Thompson apparently has made no effort to overturn the guilty pleas of Ronnie Gilley, Jarrod Massey, and Jennifer Pouncy. No way those pleas should stand.

* Thompson oversaw a massive waste of taxpayer dollars. If anyone had been convicted in this case, there is no way it could have held up--at least under the law. (Knowing the 11th Circuit, the convictions could have held up, sending wrongfully convicted people to prison.) Thompson acted as if the government was entitled to bring some sort of case, that the court couldn't turn back, even though the prosecution was riddled with misconduct. If the government doesn't have enough integrity to bring a legitimate case, the judge has a duty to kick it out.

* Thompson had a chance to do something about Louis Franklin, who is an absolute menace to the concept of justice, and apparently let it slide.

Love your comment about Thompson being better than Mark Fuller. That's like saying, "My doctor is better than Josef Mengele."

Tee Hee said...

Excuse me while I take an industrial strength shower. I feel soiled and violated after reading this.

legalschnauzer said...

Spaz: I think the Montgomery Advertiser deserves credit for bringing these documents into the open. Reporter Josh Moon especially has done a solid job of presenting the information. If there has been sanitizing--and I agree that appears to have happened--it likely is from editors who are squeamish about certain topics or want to protect certain people.

I would like to read a Josh Moon no-holds-barred version of this story. I think it would be much different from the story that was published.

Anonymous said...

Does Mallory McCutchin still have a job as a court reporter?

legalschnauzer said...

According to her LinkedIn page, she works for Mobile Bay Reporting after spending eight years at Dunn King and Associate in Montgomery. I see no sign that she's received any discipline at all. She filed a false certification on grand-jury transcripts in a criminal trial that could have sent 11 people to prison, but I guess the court-reporting field has lax standards. My research indicates she lives in Spanish Fort, Alabama. Keith Baker, of course, has been rewarded with a cushy job under Luther Strange's wing in the Alabama Attorney General's Office.

Anonymous said...

Are you going to publish the documents you have?

legalschnauzer said...

I hope to. Trying to work out some technical/logistical issues at the moment.

Anonymous said...

Just because she is having an affair with an investigator doesn't mean she cares one way or the other if someone is found guilty. The statement "she had no interest whatsoever in the outcome of the matter" could be true, but nobody asked if she had ties to someone that did. It may be a case of omission not commission.

legalschnauzer said...

Come on, @11:05, I doubt even you seriously believe that. She was sleeping with not just an investigator, but the chief investigator for the prosecution, the guy everyone on the government's side said knew more about the case than anyone. He clearly had a strong desire to see the government win the case, and she was sleeping with him. Why do you think she said the following in one text message: "Don't repeat anything I told you about the grand jury today, please." She knew her hands were unclean, she knew she was engaging in misconduct (possibly criminal), and she knew her certifications on the transcript were false.

Ask yourself this: Would you be OK with this little sexual arrangement if you were one of the defendants, if your freedom was on the line? I think any semi-serious person knows the answer to that.

Unknown said...

Anyone who commits adultery cannot be trusted!

Anonymous said...

I never said it wasn't a bad arrangement for anybody, I said she may not have lied at with that point. If it wasn't a lie then it wouldn't be criminal. She may have received some form of discipline, such as a suspension or reprimand, and it wouldn't be public information for you to find. You're making a statement that implies she got away with misconduct, which we don't know either way.

legalschnauzer said...

I'm not making a statement that implies anything. I'm quoting from a motion, filed by Milton McGregor's defense team, that raises the possibility that she falsely certified her transcripts. Other defense lawyers in the case make the same point in documents I have reviewed.

The certification problem might not be the only criminal matter regarding Ms. McCutchin. Here is URL to an article about the law surrounding federal grand juries:

Here is key section from the article:

"Federal grand jurors, grand jury court reporters and the prosecutors running the grand jury are under a strict duty to keep any "matter occurring before the grand jury" a secret. This duty is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Violations of this rule can result in sanctions or criminal contempt charges against a prosecutor."

Again, Ms. McCutchin's own words, in one of the few text messages made public, indicate she knew she was doing the wrong thing--whether by the false certification, releasing secret information, or both.

Anonymous said...

Does Keith Baker still have a job? Yes

Anonymous said...

It is very sad that neither the court reporter or the the FBI agent was not given some sort of punishment.Have you been able to publish to make more people aware?

Anonymous said...

Isn't that a federal crime??? why were the records sealed and not released until the statute of limitations expired? was it to protect Baker and McCutchin from being prosecuted? Could you imagine if you were a party in a case and she was the court reporter? I guess all you could do is hope she was sleeping with your attorney and not the other side, LOL! Just kidding. I'd ask for another court reporter.