Wednesday, June 6, 2007

No wool over this judge's eyes

Wayne Madsen is the only reporter I've found covering today's DC madam hearing.
U.S. District Judge Gladys Kessler in D.C. heard arguments on the Attorney General's motion to keep DC Madam Deborah Jeanne Palfrey's phone records that go back to 1994 restrained, but the U.S. attorney can't seem to keep the government's stories straight, and her honor ain't no chump.

Palfrey (right) has 46 pounds of phone records including numbers tied to Dick Cheney when he was CEO of Haliburton, Madsen has reported.

Kessler suggested that Assistant U.S. Attorney William Cowden appeared to be more interested in protecting the identities of PMA clients than in showing just cause why releasing the phone records would cause any harassment of potential government witnesses in the criminal trial of Palfrey.
Cowden says escorts could fear harassment, but when the judge asked him for evidence, he admitted no one has been harassed, despite ABC News having some numbers.

Then he admitted a "significant number of clients did have sex" with the madam's escorts, which led the wise judge to ask why this prostitution racketeering case isn't charging any of the johns, who all commit an equal crime of prostitution. Just how does one prove a prostitution ring without johns testifying they paid for sex?
"I don't know where the government is going in this case," Kessler told Cowden.
In claiming the government's motive to restrain the phone list is because the madam could sell them, Cowden admitted the AG doesn't have a copy of those numbers now and doesn't intend to call any of customers for the case, stressing it "is immaterial who had sex" with the madam's escorts.
Cowden's argument to maintain the restraining order on the phone list wandered all over the map. First, he suggested that after Palfrey's trial, the government would make access to the list subject to Freedom of Information Act (FOIA) requests. Alternately, he suggested the list would be turned over to the Smithsonian Institution or "buried" in a government warehouse. Or, Cowden suggested, the government would give the list away.

Cowden also suggested that the government could order the list seized as an asset and put in in the custody of the U.S. Marshals Service. Cowden indicated that the government's desire to keep the list from becoming public was to "ensure the trial [of Palfrey] does not turn into a circus."
One of Palfrey's lawyers pointed out the same records are available from the phone company (did he add, available for the duration of the legal statute of limitations?)
Cowden responded that the list, which dates as far back as 1994, is valuable because "no phone company keeps records for 13 years, only five years." He added that incoming call records are only maintained for a few months.
So, to be straight, he wants to obtain and "bury" the madam's records because they are the only records with the numbers of the johns he isn't going to put on trial. I see.
I think Judge Kessler does, too.
Kessler stated that the government's argument that it is the information in the phone records that is valuable "raises First Amendment" issues.
I think I like this judge. I look forward to her ruling on this, "in the near future."


ewastud said...

If I understand the case against Palfrey correctly, she is being prosecuted for alleged income tax evasion, not for violations of laws against operating a prostitution ring. She claims no prostition was involved. The government is apparently arguing that the illicit nature of her business was motivation for evasion of taxes.

If the prosecutor is doing his/her job, Palfrey's threats of exposing her clients records should have no effect. It appears that her threat is intended to solicit pressure from her powerful ex-clients, afraid of exposure, on the prosecutors of her case.

The fact that the government is trying to suppress disclosure of the phone records seems to indicate that the prosecution is feeling pressure from the powerful clients who are trying to avoid the unwanted attention, and that the prosecutors may be corruptible.

Molly McCoy said...

What I've read is that it's a RICO -- racketeering -- case, and prostitution is specified as the business.

I suppose how the money changed hands, and not the prostitution, is the core of proving the government's charges, but how credible can prosecutors be if part of the defense is that the government is wrong on the nature of the business and the government doesn't even try to prove its facts?

If the government is wrong on the nature of the business, how could it know the transactions were improper? I say that in theory. I know Palfrey's tax defense is thin -- RICO charges seem to be overreach, though.

It's not passing this judge's radar, thankfully, that the RICO specification that it's a PROSTITUTION business is intended to prejudice a judge and jury looking at how the business was transacted. It seems if the government wants their cake, they may have to eat it too and actually prove sex took place. At least, I hope the government has to prove Palfrey's a madam after it slandered her so.

I'd hate to think anyone could take me to court on a charge I, say, sold a used car to someone and assert my motive for failing to remit state taxes on the deal was the core purchase was my sexual favors as a prostitute and not the car. Such slander shouldn't be allowed to stand as fact in the public court record, without the prosecution having to prove the assertion that the secondary illegal act took place.

The AG is arrogantly assuming it can passively convict Palfrey of a secondary crime (prostitution) on the public record without being required to ever prove that. This judge seems to be not so keen on that idea.

Molly McCoy said...

Good point you make, ewastud, about the prosecution motive in the prostitution claim, because if it were only about tax evasion, it shouldn't matter to the government whether the money changed hands for friendly conversation or sex. It has to prove only that money changed hands. The government's case should be solid with Palfrey's admission she and her escorts took money for nonsexual company.

Do you think that makes it all the more clear this AG's office's real purpose for bringing the case at all is to get its hands on her "big" black book and "bury" it?

ewastud said...

Do you think that makes it all the more clear this AG's office's real purpose for bringing the case at all is to get its hands on her "big" black book and "bury" it?

Interesting idea. It would be great to see the judge explicitly calling out the prosecution on that illicit motivation and then asserting it won't happen in her court.