How Murphy's lawyers faced down feds

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On three occasions, the latest a tense Jan. 27 meeting between defense lawyers and federal prosecutors, former Pittsburgh Mayor Tom Murphy was within days of being indicted by a federal grand jury.

Repeatedly, Mr. Murphy's defense lawyers faced down prosecutors, finally talking them out of seeking an indictment and working out an agreement not to prosecute.

Essentially, Mr. Murphy's lawyers, led by former U.S. Attorney Harry Litman, talked the Department of Justice out of prosecuting their client, alternately arguing that the government had no case to bring, could not win whatever case it brought, and could even face a suit to recover any costs incurred by the former mayor if he were brought to trial and acquitted.

The talks, detailed in defense documents obtained by the Post-Gazette, began in March of last year, in the midst of a grand jury probe, and continued well into this year, long after the grand jury's term had expired and more than a year after most witnesses had been interviewed.

Mr. Murphy's escape from indictment throws a light on an area of criminal defense practice that, by its very nature, is rarely seen outside closed conference rooms.

"Every now and then you win a lottery ticket," said Robert Bennett, a prominent criminal defense lawyer who earlier this year managed to prevent an indictment of KPMG, a major accounting firm implicated in a series of fraudulent tax shelters.

"Ninety percent of my practice is to prevent my clients from being charged," Mr. Bennett said.

The art of indictment prevention involves, as it did in Mr. Murphy's case, lengthy meetings that often end ambiguously, and waivers of ordinary protections such as the statute of limitations. In some instances, defense lawyers travel to Washington to present arguments that, while they can prevent indictment, can also tip the government's hand to the kind of defense their quarry intends to present.

In Mr. Murphy's case, all of those things happened.

Mr. Murphy's case was inadvertently helped, prosecution sources now say, as a result of lawyers and FBI agents refocusing their sights on Cyril H. Wecht, the nationally renowned forensic pathologist and former Allegheny County coroner. Indeed, according to letters from a member of Mr. Murphy's defense team, U.S. Attorney Mary Beth Buchanan's aides said they were delaying a decision on Mr. Murphy while they focused on another public official. Staff members inside the office of Allegheny County District Attorney Stephen A. Zappala Jr. also said Ms. Buchanan had deferred a decision in the Murphy case until Dr. Wecht could be charged.

Even as draft indictments were drawn up in the final months of Mr. Murphy's term as mayor, Ms. Buchanan's deputies debated among themselves about whether an indictment would cross the boundaries of law enforcement into the realm of setting a new and wide-ranging public policy on how cities could be governed.

The maneuvers that kept Mr. Murphy from being indicted appeared to have two pivotal moments, the first in March of 2005, and the second six months ago.

A memorandum shows Mr. Litman and co-counsel David Hickton forestalled indictment in 2005 by traveling to Washington and presenting Justice Department officials with a lengthy memorandum outlining arguments against bringing charges.

In that memo, dated March 29, 2005, Mr. Litman and Mr. Hickton meticulously picked apart a proposed indictment of Mr. Murphy on charges that he deprived city residents of "the intangible right of honest services."

Saying that an interpretation of the theft of honest services statute "requires the government to show either bribery or the concealment of a financial interest that state law requires be disclosed," the two lawyers argued that an indictment would amount to prosecutors making public policy more rightly held by elected government officials.

Such an interpretation, they said, "would expose state and local political officials to possible federal prosecution in countless cases of common political bartering," the men wrote.

"Given the proposed indictment's interpretation of Section 1346, it is particularly instructive to note that the theory on which it is based -- that it is a federal crime to take official action in return for a political endorsement -- has been rebuffed by the United States' General Accounting Office, an arm of Congress," the men told Justice officials.

They cited several instances of Republican officeholders whose decisions could become subject to prosecution if Mr. Murphy's presumed trade of a contract for an endorsement were indictable.

They cited instances involving the mayors of Boston and Baltimore, as well as cases of political trading by New York Gov. George Pataki and candidates in the 2002 California gubernatorial race.

Mr. Litman and Mr. Hickton pointedly referenced a 2004 decision by President Bush to take no action to renew the federal ban on so-called assault weapons after the National Rifle Association publicly stated it would withhold its endorsement of a presidential candidate until the ban had expired.

Prosecutors held back after that meeting, only to flirt three months later with bringing a prosecution. It did not materialize, despite a heads-up to defense lawyers that such an indictment was forthcoming.

Then came a Jan. 27 meeting between prosecutors and the defense team at the U.S. attorney's office in Pittsburgh. It broke up amid the most explicit threat to date to indict the former mayor.

A Feb. 1 e-mail by Mr. Litman, followed up five days later by a registered letter to Ms. Buchanan, outlined the Jan. 27 meeting. Prosecutors, the documents say, informed Mr. Murphy's legal team that they planned to indict the former mayor on three felony counts and two misdemeanor counts.

The charges were different from the earlier theft of honest services accusation and would, instead, have been based on a federal statute forbidding a promise of benefits in return for political help.

Attending the meeting were Mr. Hickton and attorney Robert Leight, as well as Deputy U.S. Attorney Robert Cessar and Assistant U.S. Attorney Stephen Stallings. Lawrence Claus, a deputy Allegheny County district attorney who was overseeing the county's end of the joint state-federal probe, also attended.

Prosecutors Cessar and Stallings, according to an e-mail by Mr. Litman to Ms. Buchanan, offered a plea bargain: The former mayor, they said, could plead guilty to a single federal misdemeanor.

"Bob and Steve further suggested that if the mayor did not accept the offer, they would shortly seek a five-count indictment consisting of three felony charges ... and two misdemeanor charges," Mr. Litman wrote.

At one point, according to participants, Mr. Claus informed the legal team of several state charges Mr. Zappala was considering if the federal government did not act.

"It was not clear to the participants in the meeting whether they were speaking for you or simply setting out what they would be recommending you do," Mr. Litman wrote to Ms. Buchanan.

When Mr. Litman did not hear back from Ms. Buchanan, he and Mr. Hickton fired off a registered letter, marked "Personal and Confidential." The three-page letter pleaded for an opportunity to take the matter to the Justice Department criminal division in Washington for a second review by its top deputy attorney general before an indictment was brought.

Mr. Litman made clear that a plea bargain was out of the question.

In the Feb. 6 letter, the two lawyers also vividly suggested that the Supreme Court and the federal 3rd Circuit Court of Appeals "have repeatedly refused -- often with stinging language -- to endorse expansive statutory interpretations that would arrogate to federal prosecutors the sort of wide-ranging criminal-law oversight of local elections and political processes that you are seeking."

He also invoked the federal Hyde Amendment, which allows those exonerated by juries to seek reimbursement of legal costs.

As the Murphy legal team braced itself for a forthcoming indictment, expecting it as early as Feb. 13, they received a call back from Ms. Buchanan, who opened negotiations that would stretch from mid-February to yesterday.

Early in the process, the Murphy team persuaded the former mayor to waive the federal statute of limitations. Prosecutors were basing their criminal case on a Feb. 28, 2001, letter in which Joe King, head of the firefighters union, laid out "the full understanding of the parties" about the forthcoming contract settlement.

With a five-year statute about to run out and prosecutors threatening to charge their client, the Murphy lawyers decided to gamble that they could persuade Ms. Buchanan not to bring charges, but knew they had to keep her talking.

Yesterday, in an interview, Ms. Buchanan confirmed that Mr. Murphy had waived the statute of limitations. She never made clear whether her deputies, when they laid out the indictment threat against Mr. Murphy in January, were acting on her authority.

She said only, "I make the decisions on indictments."


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