CONWAY -- A judge should not let attorneys for the family of a woman who died in Michael Morton's Greenbrier nursing home present former Judge Michael Maggio's federal plea agreement as evidence in a lawsuit accusing Morton and lobbyist Gilbert Baker of conspiring to bribe Maggio by funneling campaign donations to him, Morton's attorneys said in a new court filing.
The document, filed Tuesday in Faulkner County Circuit Court, is aimed at persuading Special Judge David Laser to dismiss the corruption lawsuit filed by two of Martha Bull's daughters against Morton and Baker.
Bull died in 2008, and her family filed a negligence lawsuit that went before Maggio, who then was a circuit judge. A Faulkner County jury returned a judgment of $5.2 million against the nursing home in May 2013.
On July 8, 2013, lawyers for Morton asked Maggio to reject or lower the judgment. Also that day, Morton sent $30,000 in checks to Baker for 10 political action committees, and several later contributed to Maggio's since-halted campaign for the Arkansas Court of Appeals. Morton has said he intended the money ultimately to go to Maggio's campaign. The next day, the checks arrived via FedEx at Baker's home in Conway. On July 10, 2013, Maggio lowered the judgment to $1 million.
[DOCUMENT: Click here Morton's reply brief.]
Maggio has since pleaded guilty to a federal bribery charge and has unsuccessfully sought to withdraw that plea. His case is on appeal.
Arguing for dismissal of the corruption lawsuit, Morton's attorneys, John Everett and Kirkman Dougherty, wrote, "Plaintiffs have not, and cannot, cite ... a single piece of admissible evidence that could establish that Morton ever spoke to or communicated with Maggio in any way. The only 'evidence' that plaintiffs cite ... as proof that Morton was involved in the alleged bribery of Maggio is Maggio's plea agreement."
But that agreement, dated Jan. 9, 2015, "is inadmissible hearsay," the attorneys said.
In a footnote, the attorneys, quoting from Arkansas Rules of Evidence 410, wrote, "'[A] plea, later withdrawn, of guilty or admission to the charge, ... or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against that person who made the plea or offer.'"
Everett and Dougherty acknowledged that a federal judge in Little Rock had denied Maggio's request to withdraw the plea but noted that Maggio has appealed to the 8th U.S. Circuit Court of Appeals in St. Louis.
"Thus, the plea agreement would likely not be admissible as against Maggio under Rule 410 and, therefore, should not be admitted as evidence ... against Morton," the attorneys wrote.
Without that plea agreement, they said, the "plaintiffs have offered no evidence that Morton bribed Maggio -- other than speculation based on the coincidence of the timing of Morton's checks to the PACs and the remittitur [reduced judgment] in the Bull case." But courts have recognized that such parallel action does not alone prove a conspiracy because such behavior could result from coincidence or other factors, they added.
Further, Morton did not agree to contribute to Maggio's campaign while Maggio was presiding over the negligence lawsuit, Morton's attorneys argued.
Everett and Dougherty said the "truth" is that Morton saw Baker at Brave New Restaurant in Little Rock and that "during a chance encounter, Baker asked Morton if Morton would 'support Judge Maggio for appeals court judge.'
"While the parties might have understood that 'support' for a candidate generally included financial support, there was no discussion of, much less agreement to, any specific campaign contribution," Morton's attorneys wrote.
In May 2014, Morton told the Arkansas Democrat-Gazette, "I think the exact words were, 'Would I support Judge Maggio in the appeals-court race?' I will tell you what has happened to me in the past.
"Anytime anybody has ever asked me for support on a campaign ... I just took it to assume they wanted more than my vote. It's because I've given to so many campaigns. ... That's just the feeling that I'd have to have. I sure can't put words to someone's thoughts."
In the same FedEx package, Morton mailed Baker a $100,000 check for the University of Central Arkansas Foundation. Baker then was a top executive at the university. After contention surfaced about Baker's ties to Morton's PAC donations, the foundation returned Morton's money and Baker took an $82,000 pay cut to teach music instead of working in UCA's administration.
In the new court filing, Morton's attorneys said, "Morton's donation to UCA was not a payback to Baker."
Everett said Morton was asked during a deposition if he could "at least see how some people might think the check to UCA was Gilbert's payoff" for being the intermediary between Morton and Maggio. Everett said Morton replied no.
In September 2014, the Arkansas Supreme Court ordered Maggio removed from judicial office because of unrelated issues, including online comments that he made about women, sex, bestiality, divorce and a legally confidential adoption case involving actress Charlize Theron.
Morton and Baker have denied wrongdoing and have not been charged with a crime.
Maggio was sentenced in March to 10 years in prison. He is free on appeal.
State Desk on 07/28/2016