Michael Maggio's attorney has backed off an argument that the ousted judge's first two attorneys provided ineffective counsel in a federal bribery case and contends that his client is not only innocent but also has never changed his story.
The moves are part of an eleventh-hour series of court filings aimed at persuading U.S. District Judge Brian Miller to let Maggio withdraw his guilty plea of more than one year ago to a federal bribery charge. They also follow a presentencing report that was recently revised after the U.S. attorney's office said Maggio had broken his plea agreement, reached Jan. 9, 2015.
Miller can use information from that report, which is not public, in deciding Maggio's sentence, which is scheduled to be handed down Friday unless Miller grants Maggio's plea-withdrawal motion. Maggio, 54, could face a maximum sentence of 10 years in prison, a $250,000 fine and three years of supervised release.
In a Sunday filing, Maggio's new attorney, James Hensley Jr., said he was amending a previous motion to remove Maggio's "claim of ineffective assistance of counsel and to add a constitutional challenge to the application of the [bribery] statute to this case."
"We have to remember that Maggio's version of events has never changed," Hensley wrote. "He admitted to having a conflict of interest and allowing improper considerations [to] creep into the exercise of his judicial discretion. He never admitted to meeting the specific elements of bribery under" the federal bribery statute.
Hensley again argued that Maggio's purported misconduct doesn't even qualify as a violation of that statute.
"A judge who accepts a bribe in exchange for a favorable ruling in a civil case cannot be convicted under [the federal bribery statute] as a matter of law," Hensley wrote, citing other federal cases.
Though Hensley's 16-page document never addressed a reason for removing the ineffective counsel allegation, it came less than a week after Miller granted "limited waiver" of the attorney-client privilege between Maggio and his former attorneys, Lauren Hoover and Marjorie Rogers.
Miller ruled Feb. 16 in response to a request from the U.S. attorney's office and the U.S. Department of Justice. Miller later refused Hensley's request to restrict the waiver further and not allow defense attorneys to confer with government counsel outside a formal proceeding with court supervision.
Hensley's amended motion still places some blame on Maggio's previous attorneys.
"First, it was not until Maggio obtained new counsel that he fully understood and appreciated the legal issues in this case," Hensley wrote. Further, Maggio pleaded guilty only after his previous attorneys "pressured him" and after government attorneys threatened to prosecute his wife, Hensley said. Prosecutors have denied such a threat.
Still, Hensley's latest filing raises the question of whether the privilege waiver remains in effect.
"Whether Maggio's previous two attorneys are again bound by privilege is a question of law the Judge would answer, but our position has not changed following the latest filing," Assistant U.S. Attorney Chris Givens said in an email Monday.
That position was that Maggio waived privilege when he filed the earlier motion.
"The title of Mr. Maggio's newest motion has changed, but the substance of the motion has not," Givens added.
Hensley declined Monday to say why he amended the ineffective-counsel allegation.
On whether this change means the limited waiver is no longer in effect, Hensley said, "I would not say that. ... I'm not sure what's next."
He also said, "I don't see why they [former attorneys and government lawyers] would need to be talking" now that the motion has been amended.
Asked what if the parties already have conferred since Miller's ruling did not restrict such talks to court proceedings, Hensley said, "Well, I don't know. We'll see what happens."
In pleading guilty last year to a federal bribery charge, Maggio admitted he had lowered a Faulkner County jury's $5.2 million judgment in a negligence lawsuit against a nursing home to $1 million in exchange for thousands of dollars in contributions given indirectly to his 2014 campaign for the Arkansas Court of Appeals.
Maggio's plea agreement implicated his campaign fundraiser and the nursing-home owner but did not identify them by name.
Former state Sen. Gilbert Baker, R-Conway, helped raise money for Maggio's campaign, and Fort Smith businessman Michael Morton owns the Greenbrier nursing home that was sued over the 2008 death of Martha Bull of Perryville.
Baker and Morton have denied wrongdoing and are not charged with a crime.
Federal attorneys said last week that Maggio had breached the plea agreement by withholding information about the case until, they said, he failed a polygraph test in January. Afterward, they said, he provided the government with significant new details. For one thing, they said, Maggio told them that sometime between November 2013 and January 2014, he had asked his fundraiser where the rest of the $50,000 he had been promised was since his campaign had received only about half that sum.
Prosecutors did not say whether Maggio ever received the additional money.
Criminal defense attorney Bill James said Monday that ineffective counsel was Maggio's best chance at getting his plea withdrawn. But James also said, "The whole issue of whether what he actually did constituted a federal offense, that may hold some water."
"The issue of what constitutes a federal crime ... has become a closer one over the past 15 years of Supreme Court litigation," said Ken Gallant, a professor at the University of Arkansas at Little Rock William H. Bowen School of Law.
Criminal defense attorney Jeff Rosenzweig said one question now is whether the government can use any information that it might have already obtained from Maggio's former attorneys after the judge granted the privilege waiver.
Gallant agreed.
"That is a really hard question" that could end up being the subject of litigation, Gallant said. "I don't even know whether there is an answer to that question on a national basis."
The Arkansas Supreme Court ordered Maggio, a former circuit judge, removed from office in September 2014 over unrelated problems, including contentious online comments.
State Desk on 02/23/2016