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.