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Former federal prosecutors say pro basketball star Antonio Davis’ attempt to clear his name may have the unintended effect of drawing him deeper into the Gold Club trial. Davis “will have to be high on the list” as a defense witness, says Kent Alexander, a former U.S. Attorney in Atlanta and now general counsel at Atlanta’s Emory University. Another former federal prosecutor wonders if the government might even regard the timing of the suit as obstruction of justice. Last Wednesday, the Toronto Raptors forward and center filed a $50 million defamation suit against Thomas “Ziggy” Sicignano. The former Gold Club manager testified in U.S. District Court in Atlanta for the prosecution last week that Davis and other star athletes received sexual favors from Gold Club dancers. Sicignano said club owner and lead defendant Steven E. Kaplan paid dancers to have sex with star athletes to heighten the club’s profile and attract more customers. In news accounts, Davis called the allegations that he engaged in illicit sex “malicious lies.” With his wife, Kendra, at his side at a New York news conference, he said he filed the suit in U.S. District Court in New York to redeem his reputation. RARE, IF NOT UNPRECEDENTED Former federal prosecutors say filing a defamation claim on the basis of courtroom testimony is rare, and maybe unprecedented. “I’ve never seen this before,” says Alston & Bird attorney Joe D. Whitley, who has served as U.S. Attorney for Georgia’s Northern and Middle districts. “It’s an unusual step,” says Alexander. “You don’t hear about people being sued midtrial at all.” The complaint alleges that Sicignano made false statements about Davis not just in court, but to professional basketball players, the public and the media. To the extent that the complaint relies on statements made in court, it has little chance of succeeding, according to Atlanta defense attorney and former federal prosecutor Jerome J. Froelich Jr. Froelich represents a Gold Club defendant who is awaiting trial. But statements outside court are fair game, he says. He calls Sicignano “out of control.” Attorney L. Lin Wood Jr. cautions that even courtroom testimony doesn’t enjoy absolute protection in Georgia. A witness may surrender his legal protections if his testimony is neither relevant nor responsive to direct questions, if it is “gratuitously interjected” or if a witness “has manipulated the process or initiated litigation with an intent to defame,” he says. But, as a practical matter, if a witness’s answer is responsive to a question, “The law would allow you to lie and defame” while shielded from civil liability, Wood says. “If you want to walk outside a courtroom and make the same statements to the media, you do so at your own peril.” WITNESS FOR THE DEFENSE Georgia State University Professor of Law Mark J. Kadish says he’s “sure he [Davis] will be a witness for the defense” because the athlete challenged the veracity of a key prosecution witness. Kadish said if he were representing a Gold Club defendant, he would call Davis and his wife as witnesses. Alexander suggests that Davis’ defamation suit could well influence the Gold Club jury, which is not sequestered. “It’s hard to avoid a top news story at 6 p.m. or the front page of The Atlanta Journal-Constitution,” he says. “Does it have an effect? It certainly could.” Jurors who learn of the suit, he said, would have to wonder, “Gosh, would this guy be filing a $50 million lawsuit if it wasn’t true?” But the timing of the suit and Davis’ news conference to announce it may have more to do with his marriage than any attempt to influence the jury, Alexander speculates. “I wouldn’t be surprised if his wife said, ‘If it ain’t true, what are you going to do about it?’ ” he says. “ I have a feeling some of this may have been wife-driven.” POSSIBLE OBSTRUCTION? Former Senior Assistant U.S. Attorney Wilmer “Buddy” Parker III poses another possible consequence of Davis’ action. Parker, a Kilpatrick Stockton partner who represented Kaplan before his indictment, says, “The more interesting question is whether or not the government might view the initiation of a lawsuit at this point in time as an effort to obstruct justice.” Davis’ suit just as easily could have been filed after the Gold Club trial ended, he says. “Having initiated litigation during the middle of the trial, one can question his motives. … Was his motivation at this point in time one to seek redress of what he viewed as slander or libel, or was it for some other reason, or was it for dual reasons?” Whitley says Davis’ suit may not rise to the level of obstruction or witness tampering “because certainly witnesses are within their rights to file a lawsuit. But it remains to be seen if it will stand up.” But the former prosecutor says he believes the suit will have an impact on the jury. “It’s just not possible in this world we live in today to have a jury that is not sequestered not to be somehow impacted by the media.” And in this case, Whitley noted that defense attorneys “have been pretty aggressive. … Every day it seems that one or more members of the defense team are on television.” But he says he believes federal prosecutors more than likely have other testimony that corroborates Sicignano’s statements. Sicignano’s testimony “would have been corroborated” by federal agents long before the trial began, he says. “I think you would find on all these athletes, they’ve [federal investigators] gone behind the comments made by unindicted co-conspirators to find out whether those comments are supportable. That would have been the protocol of the case. … Lawsuits can be filed and lawsuits can be dismissed. It will be interesting to see if this lawsuit will survive the Gold Club case.”

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