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Key Defendants in Court Corruption Case Seek Dismissals
Fulton County Daily Report
August 25, 2008
An ex-judge and his circuit administrator wife -- two of the current and former officials ensnared in a tangle of federal indictments over allegations of court corruption in South Georgia -- have filed a motion to dismiss all of the charges against them.
The motion's primary thrust is that prosecutors are trying to turn what are really potential ethics violations within the purview of the Judicial Qualifications Commission into federal crimes via an overexpansion of the mail and wire fraud statutes.
Berrien L. Sutton, a former State Court and Juvenile Court judge in the Alapaha Judicial Circuit, and his wife, Lisa Sutton, the circuit's administrator and director of its alternative dispute resolution program, filed the motion through their attorneys last week.
The lawyers also argue that federal prosecutors suffer from a "blatant conflict of interest" in the case and have attempted to make up the law "as they go along."
Most of the charges against the Suttons and nine others charged with federal crimes spring from information gleaned through an FBI wiretap last year of the chambers of Brooks E. Blitch III, the former chief judge of the Alapaha Circuit.
Sutton and Blitch both left their judicial posts earlier this year in order to avoid JQC ethics prosecutions. Blitch was indicted last month with the Suttons and two others. Blitch's lawyers have proclaimed that whatever he may have done wrong did not amount to a federal crime, and on Aug. 7 they filed a motion to dismiss three of the 16 counts against him. One argument is that Blitch had a First Amendment right to make the statements that are behind some of the charges.
Neither Judge Hugh Lawson nor Magistrate Judge Claude W. Hicks Jr. of the U.S. District Court for the Middle District of Georgia has ruled on the Blitch and Sutton motions to dismiss.
Some of the South Georgia defendants have been successful in fighting the charges.
One defendant, Cordele Public Defender Timothy L. Eidson, was acquitted last week.
Linda Peterson, a former magistrate judge in Clinch County, which is part of the Alapaha Circuit, was acquitted of conspiracy to commit extortion in July, although she was convicted on two other counts. Her brother-in-law, Winston Peterson, the former Clinch County sheriff, has so far managed to get four of the five counts against him dismissed; his motion to dismiss a remaining obstruction of justice count is pending.
Three South Georgia attorneys -- two private practitioners and the public defender of the Cordele Judicial Circuit -- also have been indicted on related charges, but as yet, none of the counts against them has been dismissed, and only one motion to dismiss one count has been filed.
Lawyers for the various defendants in this series of indictments say they're closely watching how the motions to dismiss fare in each related case. Any dismissals, they say, could indicate how a judge might evaluate their own clients' bids for acquittal.
RETURNING FIRE
The Suttons have been charged with honest services fraud conspiracy over the allegation that they took money from state taxpayers by accepting government jobs for which they were overpaid despite doing little work. They have also been charged with seven counts of mail fraud. These counts include one for wire fraud, related to their work compensation, and in Berrien Sutton's case, related to alleged false statements sent through the mail that were designed to pump up his retirement benefits.
Berrien Sutton alone also faces a charge of conspiracy to commit mail fraud related to the allegedly unauthorized collection of fees from criminal defendants.
In their defense of the Suttons, attorneys Thomas A. Withers of Gillen, Withers & Lake in Savannah and Charles E. Cox Jr. of Macon filled a 51-page motion with almost as many accusations against the prosecutors as the prosecutors leveled against their clients.
In one early volley, Withers and Cox allege that the charges against the Suttons are no more than an attempt to "criminalize conduct wildly beyond the sweep of the mail/wire fraud laws" by the U.S. Attorney's Office -- "the same Office that was simultaneously attempting to place one of its own prosecutors in the office formerly occupied by Judge Blitch."
A footnote promises that "this blatant conflict of interest will be addressed separately." Some 14 pages later, in another footnote, the motion identifies the prosecutor as Assistant U.S. Attorney Donald L. Johstono Jr., who applied to Gov. Sonny Perdue for Blitch's vacant seat.
"By attempting to insert AUSA Johstono into Judge Blitch's former position, the government has done more than attempt to set standards for good government of local and state officials," the Suttons' motion says.
The motion does not address Johstono further, and Perdue appointed someone else to the post. Johstono briefly entered an appearance in a federal forfeiture action against a bed-and-breakfast the Suttons own, but Johstono is no longer involved in that case, according to court filings.
Withers declined to elaborate on the motion's statements related to Johstono, and Johstono did not return a call seeking comment.
George F. "Pete" Peterman III, first Assistant U.S. Attorney in the Middle District, who was speaking for the office in U.S. Attorney Maxwell Wood's absence, said his office's policy was not to comment on this or any other aspect of pending litigation.
NO SECRETS, NO CONFLICT
One of the indictment's key allegations, used to support the honest services fraud conspiracy count, is that the Suttons took government jobs from Blitch -- jobs that didn't need to be filled and that offered the pair excessive pay for their work -- in exchange for providing Blitch with free legal services.
Honest services fraud, as defined by the motion, generally occurs when bribery or an undisclosed conflict of interest is involved. Neither of those things happened here, the motion argues.
According to the motion, there's no prosecutable conflict of interest or breach of fiduciary duty to Georgia taxpayers arising from Blitch's appointing someone he knew and worked with to the Juvenile Court judgeship, even though Sutton allegedly gave Blitch free legal services in exchange for a job.
Addressing its contention that only undisclosed conflicts of interest can trigger the honest services fraud statute, the defense points out that Blitch and Sutton's professional relationship -- the two practiced law together at one point and Sutton represented Blitch and his son in civil and criminal suits related to the arson of a family-owned Ford dealership -- was hardly undisclosed. It was, the motion says, a matter of public record.
"Since the alleged 'victim' of the fraud in this case -- the citizens of the State of Georgia -- were well aware of Mr. Sutton's relationship to Judge Blitch and voiced no complaints about it -- neither they, nor the United States Attorney's Office, have the right to complain about it now, much less base criminal charges on a breach-of-fiduciary-duty theory," the motion says.
The indictment further alleges that the Suttons gave Blitch "personal loyalty" as well as "intangible benefits."
The Suttons' defense lawyers argue that no law prohibits a judge from appointing friends -- or even a lawyer who has represented him -- to government posts and that there's no legal support for the prosecution's argument that "personal loyalty" is a crime in violation of the honest services fraud statute.
"[I]t would be a rare political figure" who would appoint someone he didn't believe to be loyal, "and that is true from the President of the United States to the Mayor of the smallest hamlet," the motion says in a footnote.
Addressing the indictment's allegations that the Suttons did "little or no work," the motion argues that the appropriate corrective body is the JQC, not the U.S. Attorney's Office.
Pointing out that the Suttons have not been charged with bribery or anything like it, the motion argues that the government is attempting to elevate alleged violations of the judicial canons of ethics to the level of federal crimes via the mail fraud charges.
"Courts have refused to allow the mail and wire fraud statutes to become a broad method of 'federalizing' all violations of state law," the motion says.
The defense team makes a similar argument regarding the conspiracy to commit mail fraud charge against Berrien Sutton, which accuses him of issuing an order to collect illegal court fees from criminal defendants.
"Counsel has found no case where the Department of Justice has ever prosecuted a criminal case based upon a judicial order that it contends was without 'legal authority.' ... This is an expansion of the mail fraud statute that cannot stand," the motion says.
Sutton's defense lawyers then argue that the assessment of fines and fees by the judiciary is "expressly authorized by case law," and point out that there are many procedural avenues for challenging a judge's orders, ranging from direct appeals to petitions for injunctive relief.
"Prosecuting the judges for the issuance of erroneous orders is unheard of," the motion says.
Summing up, Sutton's defense team argue that their client has judicial immunity -- even from criminal prosecution -- because he signed the order to collect fees from criminal defendants while acting in his official capacity and in good faith.
FREE SPEECH
Blitch's defense counsel does not argue that he is protected by judicial immunity. Rather, in two Aug. 7 motions to dismiss, Robert S. Willis of Willis, Ferebee & Hutton in Jacksonville, Fla., raises, among other things, the First Amendment as a defense.
The indictment alleges that Blitch retaliated against a witness, a former Georgia Bureau of Investigation agent who at one time assisted in the investigation and prosecution of one of Blitch's sons for insurance fraud related to arson at Blitch Ford, the family's car dealership. When that then-retired agent applied for jobs as the police chief in Nashville and Adel, two cities within the Alapaha Circuit, where Blitch sat as chief judge, the indictment alleges that Blitch called local officials and urged them not to hire the former agent.
In addition to arguing that the prosecutors did not allege crucial factual elements of the charge, the defense motion says that the indictment attempts to "criminalize a citizen's pejorative comment regarding the performance of official duties by a public officer."
That attempt at criminalization, the motion goes on, is "wholly inconsistent" with the First Amendment.
The government's response argues, in part, that the First Amendment offers no protection to Blitch's attempted blacklisting because Blitch went "well beyond simply stating an opinion" and instead evidenced a "clear intent to retaliate."
Blitch used his "official power and position" when he contacted officials in Adel and Nashville, the government argues, and told them he didn't want the agent hired because of his work on the Blitch Ford investigation and that, allegedly, he'd take judicial action harmful to the city of Nashville if the man were hired.
That intent to retaliate, the government argues, is not protected by the free speech provision of the Constitution.
It is unclear when the court may rule on the Blitch and Sutton motions to dismiss.
The cases are USA v. Berrien L. Sutton, USA v. Lisa Sutton and USA v. Blitch, all No. 5:08-cr-40, in the U.S. District Court for the Middle District of Georgia.
