FAYETTEVILLE -- Former state Sen. Jon Woods' public corruption trial is on track to go to the jury this week with no mention of what its judge called "reprehensible" conduct on the lead investigator's part.
FBI agent Robert Cessario testified last week, but not about how he wiped clean a hard drive that was used to gather evidence in the case. His action was the basis of an unsuccessful defense request for a mistrial. It also will be a subject of appeal even if the remaining two defendants are acquitted because a man who has already pleaded guilty kept his appeal rights in his plea bargain.
U.S. District Judge Timothy L. Brooks declined to toss the indictment based on Cessario's action, citing U.S. 8th Circuit Court of Appeals case law requiring proof misconduct be both malicious and caused definite harm to the defendants' right to a fair trial. Brooks ruled March 2 the government made an extensive and good-faith effort to provide to the defense what Cessario should have provided in the first place.
Brooks also prohibited the government from calling Cessario as a witness.
The defense contends the full extent and import of Cessario's actions cannot be judged from a blank hard drive.
Woods is accused of taking kickbacks in return for directing state grants to two nonprofit organizations. Consultant Randell Shelton Jr., a longtime friend of Woods, is accused of passing along some of the kickbacks through payments to his consulting company. Co-conspirators Micah Neal and Oren Paris III have pleaded guilty.
Paris' guilty plea will be erased if he is successful in his appeal that the case should have been dismissed because of Cessario's actions, according to the conditions of his guilty plea.
Friday morning, defense attorney Chad Atwell asked to call Cessario to the stand. His client's defense is based in the contention the government's investigation was inadequate, Atwell argued in a hearing before the jury was brought in Friday morning. The former lead investigator is the appropriate person to ask why the government, for instance, did not subpoena his client's bank records or take other actions.
"There are issues in this other than the elephant in the room," Atwell said about whether Cessario should testify.
Assistant U.S. Attorney Aaron Jennen argued Cessario would have no value as a witness other than to draw attention to the fact he is no longer on the investigation.
Brooks said he would allow Cessario's testimony because the inadequacy of the investigation is "a major tenet of the defense." However, the defense could not ask questions such as whether Cessario is still assigned to the case.
Brooks cautioned the defense.
"Investigators have a lot of tools in their toolbox," the judge said from the bench. "They do not have to use every one."
The defense needed to avoid trying to create the impression investigators should have used every tool, such as wiretaps, whether needed or not.
The laptop became an issue when it was used to copy audio recordings the government says it never sought.
Neal, a former state representative of Springdale, carried an audio recorder disguised as a pen during most of 2016. He was cooperating with the government and told investigators he was willing to wear a hidden recording device. Investigators declined, but Neal went ahead and recorded any conversation he thought might interest investigators. He said he hoped he could be of more value to the government and reduce his sentence. He pleaded guilty on Jan. 4, 2017.
Cessario used his FBI laptop to make copies of the audio files after they were placed in a Dropbox file-sharing folder. He testified in a February court hearing he copied every file that was there and copied them to computer disc in November 2016. Copies of those recordings were turned over to the defense in April 2017.
According to court testimony, not all the files were in the Dropbox folder the day Cessario downloaded the files and then made his copies. For whatever reason, only 39 of at least 119 audio files made it to the defense. Recorded conversations specifically mentioned in texts from Neal's attorney to Cessario in 2016 were not there.
Cessario was ordered Dec. 4 in an email from Assistant U.S. Attorney Aaron Jennen to turn over the laptop for examination to try and find out what happened. That same day Cessario had the hard drive professionally erased at a computer shop in Bentonville, then erased it again himself before turning it in on Dec. 7, he testified in a pretrial hearing Jan. 25.
The bureau's computer examiner in Little Rock found the hard drive was blank. He called Cessario, who asked the examiner to report there was nothing on the drive, according to pretrial testimony. The examiner refused and reported the erasure to superiors.
Cessario later testified he wiped the memory to keep embarrassing, personal medical records from being revealed in this highly publicized case. That excuse is not credible, the government admitted in hearings before the trial.
The defense wants the jury to know the laptop saga, but the only way the defense could bring up Cessario's actions was through a slip-up by the government such as presenting evidence he alone discovered or prepared for presentation at trial, according to previous rulings by Brooks.
Special Agent John Munns of the Internal Revenue Service took over Cessario's role as lead investigator and, as such, chief presenter at the trial of the evidence the investigation gathered. Munns was active in the investigation and accompanied Cessario in interviews from the beginning, according to court testimony and records.
Cessario's removal from the case left Munns and government attorneys with the task of making sure none of Cessario's handiwork -- such as preparation of exhibits -- made it into the trial.
Jurors were selected in large part on the basis of not having followed the case closely in the press. That is true of every jury trial, but both sides' attorneys knew it was particularly important in this case.
Cross-examination by defense attorneys this week at times seemed aimed at getting prosecution witnesses to invoke Cessario, although defense attorneys would not comment on whether that was their purpose. That would amount to admitting they were trying to get around the judge's order.
Monday's cross-examination of Munns by defense attorneys asked about technicalities, dates, times and who put together the government's PowerPoint presentation. Defense attorneys Patrick Benca for Woods and Atwell and for Shelton looked for any opening to bring in testimony about Cessario. Munns sought to deny any such opening.
Munns succeeded.
Between them, Benca and Atwell kept Munns on the stand for more than three hours. This was in addition to Munns' four hours on the stand previously, testifying for the government.
Cessario's testimony Friday took less than 30 minutes. The government asked no questions. Cessario made no errors. He was excused after his testimony and left.
The elephant in the room will apparently stay hidden from the jury.
NW News on 04/30/2018