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Trial attorney Pierce O’Donnell, whose plea agreement on campaign finance violations unraveled last month, has moved to whittle down the evidence that federal prosecutors can introduce during his impending trial and has indicated he plans to blame much of his behavior on his bipolar disorder. U.S. District Judge James Otero in Los Angeles on Nov. 14 rejected a plea deal that would have put O’Donnell in federal prison for six months, concluding that custody was unwarranted for what appeared to be a "lapse in judgment." O’Donnell and federal prosecutors had agreed upon the sentence, which included one year of supervised release and 200 hours of community service, plus a $20,000 fine. O’Donnell pleaded guilty to two misdemeanor charges of reimbursing employees of his law firm who made 2003 contributions to the presidential campaign of former U.S. Sen. John Edwards (D-N.C.). He had been charged with reimbursing 13 employees of his law firm and others who’d contributed $26,000. With the prison sentence gone, Assistant U.S. Attorney Dennis Mitchell told Otero that the government intended to go to trial. Otero scheduled a trial date of Jan. 31. While avoiding prison, O’Donnell, of O’Donnell & Associates in Los Angeles, could end up convicted of a felony, which would mean automatic suspension of his license to practice law in California. In preparation for trial, O’Donnell has filed numerous motions, some of which lay out his defense. "Among other defenses, Mr. O’Donnell will assert that, because of a then-undiagnosed bipolar disorder, he did not have the mens rea to commit the charged offenses," wrote Frederick Friedman, a partner at Jones Day, in a Dec. 19 motion. Friedman, who works in the firm’s Los Angeles office, did not return a call for comment. The motion sought to prevent prosecutors from introducing evidence that "conduit" contributors, such as his law firm employees, friends and relatives, feared they would get in trouble for making the reimbursed donations. One contributor, for instance, a legal immigrant, told the FBI that she feared involvement would affect her chances of becoming a U.S. citizen. Another told the Federal Election Commission that she had been hurt by publicity in the case, which highlighted personal facts about her. "Testimony on these topics should not be admitted," Friedman wrote. "That an intermediary suffered negative collateral consequences, or was concerned that such consequences might ensue, is not relevant to any issue in the case." In other motions filed on Dec. 15, O’Donnell sought to prevent prosecutors from introducing evidence of the prior plea deal and has moved to dismiss the second count of the indictment based on the "double jeopardy" clause of the Fifth Amendment. O’Donnell is charged with one count of conspiracy to violate section 441f of the Federal Election Campaign Act and one count of 13 specific violations of the same statute. Friedman wrote that the second count should be dismissed entirely because O’Donnell already admitted to a lesser but similar offense in his plea deal. In that agreement, he confessed to 10 of the 13 alleged contributions in the second count of the indictment. "In sum, once a court accepts a guilty plea pursuant to a plea agreement, the defendant may not be prosecuted again for the same offense," Friedman wrote. The terms of the agreement and O’Donnell’s statements pertaining to it should not be part of the trial because the plea deal is now "null and void," Friedman wrote. "Mr. O’Donnell’s statements in connection with charges that are not before the jury would only confuse the jury as to how to evaluate this information in the context of the remaining charge in the Indictment and would severely prejudice Mr. O’Donnell’s defense on the remaining charge," he wrote. If the government is allowed to introduce evidence of the plea deal, O’Donnell should have the right to tell the jury that Otero rejected the agreement, he added. Thom Mrozek, a spokesman for the U.S. Attorney’s office in Los Angeles, declined to comment. Contact Amanda Bronstad at [email protected].

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