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A federal judge in Los Angeles has abruptly rejected Pierce O’Donnell’s plea agreement, meaning that the prominent litigator will go to trial on felony charges of making illegal campaign contributions. O’Donnell had agreed to a deal on Aug. 2 under which he would serve six months in prison followed by one year of supervised release and 200 hours of community service and a pay $20,000 fine. He pleaded guilty to two misdemeanor charges of having reimbursed employees of his law firm for contributions in 2003 to the presidential campaign of former U.S. Sen. John Edwards, D-N.C. During a Nov. 14 sentencing hearing, U.S. District Judge James Otero in Los Angeles said O’Donnell, a man with “impeccable character,” had “made a mistake in his life caused by apparently a psychiatric condition. “This reflects a lapse of judgment that we as human beings sometimes make,” Otero said. “In good conscience, I could not sentence this defendant to time with custody.” Assistant U.S. Attorney Dennis Mitchell, the lead prosecutor, insisted that without a sentence of confinement, the government “intends to proceed to trial on the indictment.” Mitchell explained: “It’s a serious offense.” In its Oct. 31 sentencing memorandum, the government had cited O’Donnell’s prominence–his career as a prominent attorney, his personal history of having served as a clerk for both the U.S. Court of Appeals and the U.S. Supreme Court, and his having run for Congress–as reasons why he should serve time. “I could care less that he’s a prominent lawyer,” Otero responded in court. Otero scheduled a jury trial for Jan. 31. And he had these you awords for the government: “What you’re costing the taxpayers is a significant amount of money.” Mitchell and Otero sparred numerous times during the hearing, which lasted less than an hour. “I’m somewhat taken aback by the government’s conduct here,” Otero said at one point. “The government is interfering with the court’s discretion in terms of sentencing.” After a short break, O’Donnell’s lead attorney, Brian O’Neill, a partner in the Los Angeles office of Jones Day, told the judge that the parties had reached an impasse. The judge’s sentencing decision was “unprecedented,” O’Neill said following the hearing. “He said in no instance is Mr. O’Donnell going to jail.” As a result, O’Neill continued, the government’s insistence on going to trial appeared to be personal in nature–driven by anger and a desire to take away O’Donnell’s law license by ensuring a felony conviction. O’Donnell was a lead plaintiff’s attorney in a successful case brought on behalf of victims of Hurricane Katrina who had sued the U.S. Army Corps of Engineers for allegedly failing to maintain a New Orleans waterway, called the Mississippi River Gulf Outlet, which caused the substantial devastation in 2005. When O’Donnell was first indicted on federal charges, his lawyers, who include George Terwilliger, a partner in the Washington office of White & Case, accused the government of politicizing the case, which was investigated and brought under the Bush administration. In court, Mitchell cited O’Donnell’s history of campaign violations. In February, O’Donnell had his license suspended for 60 days and was placed on probation for two years after pleading no contest in 2006 to five misdemeanor charges under California law for using a false name to make political contributions to James Hahn, who ran for mayor of Los Angeles in 2001. O’Donnell was ordered to pay $155,000 in fines and penalties. In court, Otero appeared unmoved by O’Donnell’s record. He acknowledged that his first impression of the lawyer was that he was “a bit pompous and self-absorbed.” But he appeared persuaded by the lengthy letters submitted by O’Donnell himself and his supporters, and by the report of a psychiatrist who evaluated the attorney as suffering from bipolar disorder. All of that information, along with O’Donnell’s sentencing memorandum, was filed under seal. “He is also a person who has contributed significantly to the welfare of the community,” Otero said, noting O’Donnell’s charitable contributions to abused children and women and his service feeding the homeless. “The financial contributions he’s done are significantly well approaching seven figures.” Rather than confinement, Otero suggested, O’Donnell should serve three years’ probation, including six months of home detention, so that he could continue his psychiatric treatments. “It makes little sense to incarcerate him,” he said, adding that more than one year’s supervision seemed called for and a heftier fine than provided for under the plea agreement. “I’m inclined to impose a significant fine in this case,” he said. O’Donnell, whose firm is now called O’Donnell & Associates in Los Angeles, was charged with reimbursing 13 employees of his law firm and others who contributed $26,000 toward Edwards’ campaign. In 2009, Otero dismissed most of the charges, finding that the language of section 441f of the Federal Election Campaign Act, under which the government charged O’Donnell, excluded the words “conduit” or “indirect” in its definition of contribution violations. That section states: “No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.” Federal prosecutors appealed that dismissal to the U.S. Court of Appeals for the 9th Circuit. In what 9th Circuit Judge Raymond Fischer referred to in oral arguments as an “interesting and important case,” the government’s indictment against O’Donnell attracted supportive amicus briefs from the U.S. Federal Election Commission and several outside legal groups, including Citizens for Responsibility and Ethics in Washington (CREW). The FEC sought to reverse Otero’s “novel” and “unprecedented” ruling, which the commission maintained could hamper future enforcement of campaign disclosure requirements and restrictions on contributions. Additionally, the Campaign Legal Center and Democracy 21 filed amicus briefs supporting the government. The American Civil Rights Union, a conservative legal group, filed an amicus brief supporting O’Donnell. Last year, the 9th Circuit reinstated the charges against O’Donnell after concluding that section 441f applied to conduit, or indirect, campaign contributions, not just contributions made under false names. Contact Amanda Bronstad at [email protected].

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