Defense attorneys indicated Thursday they plan to request a mistrial in the “Fat Leonard” Navy bribery scandal, capping a highly unusual three-day special evidentiary hearing held to determine if prosecutors improperly failed to disclose exculpatory evidence or knowingly advanced a false narrative during the first several weeks of trial.
Lawyers for the five former naval officers on trial are expected to file briefings asking for a mistrial, dismissal and other lesser remedies in court over the next several days, with prosecutors given time to reply with their own briefings.
But U.S. District Judge Janis Sammartino has refused to put the trial — closing out its ninth week with several more to go — on hold in the meantime and has ordered the jury to return to the courtroom Monday morning after being absent a week.
“I’m not going to rush the deliberative process on this,” U.S. District Judge Janis Sammartino told attorneys, stressing the gravity of the forthcoming motions. “They’re significant, they’re important, and the court is going to take its time on that.”
The past week has been a scramble to get to the bottom of why federal investigators failed to create a report to be disclosed to the defense documenting brief conversations they had over the phone and in text messages with a prostitute in the Philippines. The woman, Ynah, was allegedly paid by Leonard Glenn Francis, a military contractor nicknamed for his large physique, to have sex with one of the defendants, former Capt. David Lausman.
In the conversations, Ynah denied having sex with a man who she wouldn’t identify and said she slept on the couch in his hotel room, according to evidence. She further said she lied to Francis about having sex so she would get paid.
Lausman’s attorneys argue that prosecutors violated the Brady Rule, referring to the 1963 U.S. Supreme Court ruling in Brady v. Maryland that requires the disclosure of exculpatory evidence.
The evidentiary hearing — which was held outside the presence of the jury to determine if a violation occurred — ventured into what has been described as unprecedented territory Thursday when two assistant U.S. attorneys from the prosecution team were questioned from the witness stand by their trial adversaries, the defense attorneys.
A larger-than-usual audience was present for the spectacle: the U.S. attorney himself and other supervisors from the office sitting on the left, behind the prosecutor table, and several curious members of the federal defense bar watching from the gallery on the right.
The lead prosecutor, Mark Pletcher, testified that he had always intended for the special agents to write a report about their conversations with Ynah, which had occurred at the beginning of March, just after opening statements had concluded in the trial. But he said he needed more clarity on the circumstances of the contact before he could determine the best way to report and disclose it.
The two agents who communicated with her were from different agencies, the conversations occurred over different mediums over a series of days and there were substantive text messages, which could be either disclosed in their entirety or summarized by agents, he explained.
The need to generate a report came up between the agents and Pletcher four times over the course of several days or weeks, with Pletcher each time saying he need to think about it and that he would circle back later, he testified.
Pletcher said he was consumed with the trial at the time — putting on the first six witnesses and also helping re-strategize how the case would be presented, including moving a major witness to the front of the lineup rather than the end as planned.
He said the report had “fallen through the cracks” and it shouldn’t have.
“I was at fault in that I didn’t resurface and raise this issue for completion when it was raised to me,” Pletcher said.
Joseph Mancano, defense attorney for the lead defendant, former Capt. David Newland, stood up and raised an objection to that notion: “Being busy is no exception to a Brady obligation,” he told the judge.
Prosecutors have argued that even though the report should have been produced, there was no Brady violation because Lausman was never specifically implicated by Ynah to the government.
“The information she provided was very vague,” Assistant U.S. Attorney Michelle Wasserman, who was also called to testify, said of Ynah’s disclosures to agents. That included a refusal to name the man or say when or where the hotel incident occurred. “There was nothing we had that was facially exculpatory.”
The resumption of trial without a ruling on whether there was a Brady violation leaves both sides in an awkward position come Monday, when former Cmdr. Stephen Shedd is expected to begin his testimony. Shedd, who has already pleaded guilty to bribery charges, was expected to talk in part about the allegations regarding Lausman and Ynah, including what he saw and what Lausman told him.
Now, that specific testimony — at the very least — won’t be permitted due to the Brady controversy, Sammartino confirmed. But defense attorneys are concerned there are more potential roadblocks that could present an unfair narrative.
“From the defense’s perspective, this is part of a pervasive pattern of prosecutorial misconduct,” said one of Lausman’s attorneys, Laura Schaefer. “Our concern is what’s happened here is just a small part of what’s been going on in this case from the very beginning.”
The judge said such issues would have to be dealt with as they come up, until she can rule on the coming motions, including one asking for a mistrial.
“There is a continuum of relief that can be sought, in the court’s view,” Sammartino said. “Maybe a category of evidence that shouldn’t come in.”
She added that, until then, “We are going to continue this trial. I am not willing to postpone this jury any further.”
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