Attorneys defending a Columbus, Ga., lawyer accused of laundering money for his clients continue to question the actions of an assistant U.S. Attorney in Georgia's Middle District.
The trial of lawyer J. Mark Shelnutt, scheduled to begin in Columbus Nov. 9, will raise ethical questions regarding, on the one hand, how far a criminal lawyer can go to collect legal fees from defendants whose only known means of financial support are apparently illegal activities and, on the other hand, the lengths to which federal prosecutors may legally and ethically go in attempting to secure a conviction.
Shelnutt's lawyers complain in court filings that Assistant U.S. Attorney Jason M. Ferguson of Georgia's Middle District has negotiated unusually lenient plea deals with drug defendants who are expected to testify against Shelnutt. While it's not unusual for prosecutors to offer leniency to defendants in return for testimony that secures a case against another defendant, defense lawyers argue that because Ferguson and the entire Middle District prosecutorial staff have recused in the Shelnutt case, Ferguson shouldn't initiate deals that could influence Shelnutt's case. Ferguson also is expected to be a witness in the case after he secretly recorded Shelnutt during the federal investigation. The Southern District of Georgia is now handling the Shelnutt prosecution.
Shelnutt's team also notes that Ferguson has filed several ex parte sealed motions with U.S. District Judge Clay D. Land that never appeared on the public docket. Two of the documents Ferguson filed ex parte sought to hide one drug defendant's cooperation with federal prosecutors and another defendant's change of plea until after Shelnutt's trial. One of the defendants was hopeful that "his cooperation will ultimately lead to an alternative disposition in his case that is more favorable than going to trial on the present indictment," according to the filing.
The secret filings appear to violate an 11th U.S. Circuit Court of Appeals ruling that declared secret dockets unconstitutional. In a 1993 case, Valenti v. Times Publishing Co., 987 F. 2d 708, an 11th Circuit panel determined that a dual-docketing system (one of which was a sealed docket not available to the public) maintained by the Middle District of Florida "completely hid from public view the occurrence of closed pretrial bench conferences and the filing of in camera pretrial motions."
On Monday, George F. "Pete" Peterman III, acting U.S. Attorney of Georgia's Middle District, said that his office asked to recuse in Shelnutt's prosecution because "People in our office are going to be witnesses in the Shelnutt case." But Peterman said, "We don't have the same problem in the other cases," in which Ferguson has made plea deals with likely witnesses against Shelnutt. The circumstances that disqualify his prosecutors from participating in the Shelnutt case "doesn't disqualify us from the other cases," Peterman said.
Asked if Ferguson's actions posed any apparent conflict of interest, Peterman replied, "We're comfortable with that situation."
Joseph D. Newman, first assistant U.S. Attorney in the Southern District and a member of the team prosecuting Shelnutt, on Tuesday said that his office's prosecutors would not comment on Ferguson's plea deals, adding, "Feel free to ask Mr. Ferguson."
Newman said the secret docket motions were not filed to secure any "unfair advantage."
"Some things," he said, "we don't think should be spread before the public. If the district court wants to unseal them, the district court has the power to do that. We see no impropriety."
Ferguson did not return calls for comment.
Shelnutt's Savannah, Ga., attorney, Thomas A. Withers of the Atlanta firm Gillen Withers & Lake, declined to comment.