HARRISBURG -- Attorneys for former House speaker John Perzel and seven co-defendants in a government corruption case are accusing prosecutors of misconduct for destroying investigation notes believed to show inconsistencies in witness statements.
Common Pleas Judge Richard A. Lewis is considering the defendants' motion to dismiss all charges. He has not said when he will rule.
Mr. Perzel, formerly R-Philadelphia, and his co-defendants -- including former state Rep. Brett O. Feese, R-Lycoming -- are scheduled for trial in September on charges that they used tax dollars for political gain.
The case centers around accusations that House Republican lawmakers and aides used public money to buy millions of dollars' worth of computer technology that they used for political campaigns between 2001 and 2007.
Defense attorneys say it took prosecutors nearly a year to produce discovery material that they requested numerous times, and even then the response was incomplete.
It omits investigatory reports of interviews with 94 prosecution witnesses and includes only partial summaries of interviews with 89 others, including Bill Tomaselli, a former top aide who is expected to be a key witness at trial.
In his response, Senior Deputy Attorney General K. Kenneth Brown II said that interview notes were destroyed in compliance with long-standing policies of the Office of Attorney General.
Defense attorney William Fetterhoff -- who represents former legislative secretary Jill Seaman -- believes otherwise.
In the joint motion to dismiss, he said the material may have been intentionally destroyed after 2009 when another judge -- in a separate government corruption case known as Bonusgate -- ruled that interview notes must be provided to defendants.
The destruction of the notes, Mr. Fetterhoff wrote in the motion, "represents gross prosecutorial misconduct intentionally undertaken to conceal and destroy evidence favorable to the defendants, to deprive the defendants of the opportunity to discover prior inconsistent statements of commonwealth witnesses, to prevent effective cross-examination of such witnesses at trial, to prejudice the defendants and to prevent a fair trial by misleading the court and the jurors about the credibility of commonwealth witnesses."
In the motion, Mr. Fetterhoff suggests that destruction of government records is a crime. Tampering with public records and obstructing the administration of justice are second degree misdemeanors, he wrote.
In a sharply worded response, Mr. Brown said the motion is based on "defendants' pure speculation and shrill, self-serving supposition."
He wrote, "At no point were any handwritten notes destroyed to hide information that would be exculpatory to any defendant."
Second, he said, the notes that were destroyed would not have been subject to discovery based on Judge Barry Feudale's ruling on the Bonusgate motion in 2009 because they are not "extensive and substantially verbatim."
The missing notes, according to Mr. Fetterhoff's motion, would have included information gathered during interviews early on in the corruption investigation. They involved statements made by dozens of aides and by defendants before they were charged.
The defense motion was made on behalf of Mr. Perzel; Mr. Feese; Ms. Seaman; former Perzel aide Brian Preski; Samuel "Buzz" Stokes, who is Mr. Perzel's brother-in-law, his former campaign manager and a former House aide; Eric Ruth, who is Mr. Perzel's nephew and a former House staffer; and former aide Paul Towhey and former Perzel campaign aide Donald McClintock.
One co-defendant, former caucus aide Elmer "Al" Bowman, did not sign onto the motion. Pittsburgh attorney Donna McClelland, who represents him, declined to say why.
What is clear is that he has been cooperating with prosecutors lately. In May, he testified against Mr. Feese and Ms. Seaman during a preliminary hearing on accusations they falsified meeting notes to conceal their knowledge of purported misuse of state resources.
Jury selection is scheduled for Sept. 6, and opening arguments are expected Sept. 12 before Judge Lewis.
Mr. Perzel faces 82 criminal counts, the most of any defendant in an ongoing series of government corruption cases prosecuted by the Office of Attorney General.
Harrisburg Bureau Chief Tracie Mauriello: firstname.lastname@example.org or 717-787-2141.