Tuesday, October 20, 2009 8:30 AM

Ring Retrial Delayed Until June

A district court judge decided on Monday that former Jack Abramoff associate Kevin Ring will go back to the courtroom for the retrial of his lobbying corruption case in June 2010. The next jury, however, may see more witnesses, redefined charges and different evidence, all elements that will make the next trial look significantly different from the one that resulted in a hung jury last week.

The most certain change will be the defense's ability to call a handful of witnesses who invoked their Fifth Amendment rights during the first trial. The statute of limitations on the conspiracy charges against others in the Abramoff scandal expires this month, five years after the last alleged criminal actions occurred in October 2004. That means anyone not yet indicted for conspiracy in the scandal by the end of October is unlikely to be indicted, and Fifth Amendment rights no longer apply.

But for some, the legal issues may bleed over into the end of the tax year in April, because someone who received gifts from Ring should have reported that income on tax forms. That's why Judge Ellen Huvelle has delayed the retrial until June, and she could further delay it if all the legal issues aren't worked out by the summer.

The case will not go to retrial "before I can clear everybody I think are fair witnesses," Huvelle said during Monday's hearing.

She said that the court's conference with the jury after the mistrial was declared last week showed that the jury's deliberations were tripped up by the fact that witnesses were missing.

"There are holes, and the holes are being created by these people pleading the Fifth," Huvelle said.

During the first trial, the defense did not call any witnesses and Ring did not testify. But defense attorneys indicated in court documents that they had attempted to call five individuals who invoked their Fifth Amendment rights: David Ayres, who served as chief of staff to former Attorney General John Ashcroft; Ayres' wife, Laura; Peter Evich, who was legislative director to former Rep. John Doolittle, R-Calif.; Laura Blackann, Doolittle's former communications director; and David Lopez, Doolittle's former chief of staff.

Those witnesses have "very exculpatory information," defense attorney Andrew Wise said during Monday's hearing.

Robert Coughlin, a former liaison in the Department of Justice's Office of Legislative Affairs, was excused as a witness after he said in a pretrial hearing that he was unjustly targeted by the government. He pleaded guilty in April 2008 to charges of conflict of interest.

But the illegal gratuities charge against Ring relied entirely on basketball tickets that were allegedly given to Coughlin, and elements of the conspiracy charges also referred to gifts that were given to Coughlin in exchange for official acts. A video of Coughlin at a basketball game was shown during the trial, but the jury may have struggled to reach a decision because the key figure didn't testify.

Huvelle said the court was "baffled by the absence of Mr. Coughlin."

Coughlin may have fought against testifying because he has yet to be sentenced, and on Monday Huvelle pushed the prosecution to sentence the remaining individuals connected to Abramoff who pleaded guilty so Coughlin and others could testify in Ring's retrial.

To give the defense "a fair opportunity" to call witnesses, the government should "sentence people standing in the way," Huvelle said.

Coughlin is scheduled to be sentenced in November.

The retrial may also look different on the prosecution's end. Having failed to convince every juror beyond a reasonable doubt, prosecutors will likely revise their case for the retrial.

"They'll have to assess how strong their case was and try to find out why they think the jury hung," Thomas Susman, director of the American Bar Association government affairs office and an editor of lobbying guidebooks, said. "This is a tough case for the government to prove. It's in a gray area."

One of the reasons the case is in a "gray area" is because six of the eight charges against Ring are for honest services wire fraud, a 28-word statute that is often used in public corruption cases but is considered vague by lawyers and judges.

On Monday, the defense argued that the government failed to properly address one element of the honest services wire fraud charges during the trial: that Ring committed "material misrepresentation" in trying to cover his tracks. Huvelle said she would address that concern in future hearings, but if the court in fact decides the government does not have enough evidence to prove that element, six of the eight charges could disappear.

The prosecution argued that by concealing names on his firm's expense reports or by neglecting to advise public officials to put tickets and meals on financial disclosure forms, Ring was purposefully misrepresenting his actions. But Huvelle did not seem to buy that argument -- she said that criminalizing incomplete details on internal billing records would imply that "half the legal profession is running amuck here." She suggested the government could try Ring on charges of bribery instead of honest services wire fraud.

Also complicating the retrial is the fact that the Supreme Court will address two cases involving the honest services wire fraud statute in December and another in the spring. By the time of the June retrial, the court may be dealing with a different interpretation of the statute.

In addition to possible changes in the charges, the government may reassess the evidence it presents in trial, either by adding more evidence or taking away evidence that seems to have confused the jury.

"These retrials tend to favor the government. It's like a do-over," said Stanley Brand, a Washington lawyer with experience in bribery cases. The prosecution can adjust its arguments based on lessons learned in the first trial, he said.

However, Brand noted, the evidence "doesn't get any better for the government." The Department of Justice "wins the vast majority of the cases that it brings," he said, so a mistrial can be seen as a "victory" for the defense. And that victory -- even if it wasn't total victory -- may embolden Ring's attorneys come June.