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The federal judge who is presiding over the criminal case against former Congressman Edward Mezvinsky has refused to disqualify himself after rejecting Mezvinsky’s claim that the judge developed a bias as a result of remarks made by his former lawyer. Mezvinsky’s new lawyer, Stephen R. LaCheen, argued that Eastern District of Pennsylvania Judge Stewart Dalzell showed a new hostility toward Mezvinsky’s defense theories immediately after a private conference with attorney Thomas Bergstrom in which Bergstrom was explaining why he wanted to withdraw from the case. The private meeting among Dalzell, Bergstrom and Mezvinsky occurred in the midst of a hearing in March on the issue of whether Mezvinsky should be allowed to present a mental health defense. The hearings were put on hold after Bergstrom withdrew, but are set to resume today. Mezvinsky — the husband of former Democratic U.S. Rep. Marjorie Margolies-Mezvinsky and a congressman himself who represented Iowa in the 1970s — stands accused of defrauding friends, family members and institutions out of more than $10 million over a decade. Although he has admitted most of the government allegations, Mezvinsky claims he never had the mental capacity to commit the crimes as a result of several debilitating mental conditions. His doctors say Mezvinsky suffers from bi-polar disorder, commonly referred to as “manic depression,” and that brain scans show abnormalities in his frontal lobe. Doctors also say Mezvinsky suffered from side effects as a result of taking the drug Lariam throughout most of the 1990s as a prophylactic against contracting malaria during his frequent trips to Africa. Mezvinsky has also filed a civil suit against the drug’s manufacturer that says he was never warned it could caused hallucinations and psychotic or paranoid reactions. In a pre-emptive strike, Assistant U.S. Attorney Robert Zauzmer filed a hefty motion asking for a pretrial ruling that bars Mezvinsky from presenting any mental health defense. That motion put the burden on Mezvinsky to prove that he has a valid mental health defense and that his expert witnesses meet the Daubert test for reliability. Hearings were under way on Zauzmer’s motion when Bergstrom filed a motion asking for permission to quit. Although ex parte contacts are forbidden in most contexts, Zauzmer agreed that it was perfectly appropriate for Dalzell to meet privately with Bergstrom because the law requires the trial judge to get an explanation whenever a defense lawyer wants to quit a case. But LaCheen claims that Bergstrom’s parting remarks seriously damaged Mezvinsky’s defense since his explanation for quitting the case was that he “could not proceed with a defense in which he did not believe.” LaCheen argues that Bergstrom strongly implied that Bergstrom himself believed that Mezvinsky “was not being candid with his doctors, his counsel, or the court.” The transcript of the meeting is still under seal, but Dalzell included portions in his ruling on Friday that offer a glimpse of what occurred. Instead of quoting Bergstrom’s remarks, Dalzell quoted a passage in which the judge himself summed up what Bergstrom had said: “So, is the basis then for your motion twofold. One — and I’m not trying to put words in your mouth; I’m just trying to understand why you filed what you filed. “One: Differences with Mr. Mezvinsky about how this case should be fundamentally handled. And, Two: Your concerns and your duties under Rule of Professional Conduct 3.3?” Dalzell asked. Bergstrom agreed with the judge’s summation. In a footnote, Dalzell noted that Rule 3.3 is the rule that requires “candor before the tribunal.” Among other things, the rule prohibits lawyers from making false statements to a court or offering evidence they know to be false. LaCheen claims that immediately after the private meeting, Dalzell seemed to have a change in attitude toward Mezvinsky’s defense theories. Pointing to newspaper coverage of the hearings, LaCheen claims that Dalzell is portrayed as expressing “incredulity” at Mezvinsky’s expert witness, Dr. Claudia Baldassano. Now Dalzell has refused to step down from the case, saying “no reasonable person could question our impartiality based upon Mr. Bergstrom’s disclosures. Indeed, the thrust of what we said after that disclosure was that Mezvinsky should carefully reconsider his position, given Mr. Bergstrom’s experience and deserved reputation as one of the pre-eminent criminal defense practitioners in this district.” Dalzell found that LaCheen’s motion for recusal “stakes out a rather extravagant position.” When a defense lawyer claims to have “irreconcilable differences” with a criminal defendant, Dalzell said, the law requires that the judge conduct an inquiry. LaCheen’s argument, Dalzell said, seemed to be that “if in the course of that inquiry the court is confronted with unbidden disclosures that the defendant regrets … such defendants automatically get another judge to preside over their cases.” Accepting such an argument, Dalzell said, would turn the presumption of judicial impartiality on its head. “When a judge denies a motion to suppress, say, a quantity of cocaine, the judge knows for a fact that the defendant is guilty of drug trafficking. On Mezvinsky’s theory, that judge is now so polluted that none of her later rulings can be regarded as untainted by her absolute certainty of the defendant’s factual guilt,” Dalzell wrote. As for LaCheen’s claim that the judge showed a bias when he returned to the bench, Dalzell insisted that he was simply reacting to the proceedings as they occurred. “Our responses to some of Dr. Claudia Baldassano’s testimony may well have reflected certain incredulity, but it is long past time to attribute any recusal relevance to ‘expressions of impatience, dissatisfaction, annoyance, and even anger’ from judges responding to testimony or lawyers’ argument,” Dalzell wrote. “Our responses had nothing to do with Mr. Bergstrom’s disclosure and everything to do with the content of Dr. Baldassano’s testimony.”

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