A judge and two ex-judges indicted on charges stemming from the Philadelphia Traffic Court ticket-fixing scandal are seeking to have “inflammatory” language redacted from portions of 15 wiretap recordings of defendants in the case.
However, prosecutors responded that the defendants’ voices are not even heard on the recordings and asserted that a jury would not likely be biased against them for the “coarse language” used by others on the recordings.
Judge Michael Lowry filed a motion Wednesday in federal court to redact what he considered to be “highly inflammatory and unduly prejudicial” language from surveillance recordings and transcripts of other defendants in the case. Former Judges Robert Mulgrew and Thomasine Tynes filed joinders to Lowry’s motion, explaining that Lowry’s arguments applied equally to them. Their joinder motions were granted Tuesday and Thursday, respectively.
The three are facing charges related to a conspiracy to fix traffic tickets along with co-defendants Michael J. Sullivan, Willie Singletary, Mark A. Bruno, Henry P. Alfano and Robert Moy. A trial is scheduled for May 19 in the U.S. District Court for the Eastern District of Pennsylvania.
Lowry was suspended with pay by the state’s Court of Judicial Discipline on Oct. 25. Mulgrew pleaded guilty to unrelated fraud charges in federal court Sept. 19. Tynes had retired from the bench in 2012.
Lowry also argued in his motion that the introduction of all 80 electronic audio recordings at trial—including the 15 at issue—would be a waste of time as they are irrelevant to the charges.
“The portions of the transcripts which contain inflammatory and prejudicial comments and remarks by Mr. Lowry’s co-defendants or alleged co-conspirators are largely irrelevant or only tangentially relevant to the allegations of ticket-fixing that are contained in the indictment,” the motion said.
Allowing the prosecution to play the recordings would not only prejudice Lowry, the motion said, but would also mislead the jury by focusing its attention on the coarse language used by the speakers rather than the charges at hand.
The motion also offered an alternative to redacting parts of the recordings by requesting that Lowry be tried separately.
“Mr. Lowry is not on any of the recordings the government intends to introduce at trial,” the motion said. “Therefore, there is a substantial risk that the quantum of evidence the government presents will create a spillover effect in which the jury will infer Mr. Lowry’s guilt regardless of the relevance or admissibility of the evidence of [the] charges against him.”
The motion went on to claim that there was a “substantial likelihood that the jury would not be able to compartmentalize the evidence against Mr. Lowry.”
In its response to Lowry and Mulgrew’s request for redaction or separate trials, the U.S. Attorney’s Office reiterated that neither of the two were heard speaking in the recordings. The office directed its response only at Lowry and Mulgrew, as Tynes’ motion for joinder had not yet been granted.
“Under these circumstances, it is difficult to imagine how any jury would not be able to compartmentalize this evidence, or how the evidence would be confusing or misleading to them,” the prosecution’s response said.
The current number of recordings has been reduced from approximately 20,000 conversations intercepted during the course of the Traffic Court investigation, according to the response. Prosecutors said, “These tapes and transcripts will take mere minutes to present to the jury.”
The prosecution argued that defendants Bruno and Alfano, parties to the conversations in question, did not ask to have parts of the recordings redacted. Furthermore, court papers said, the conversations are relevant in that they illustrate the closeness of the parties involved.
“The conversations reflect the fact that the co-conspirators and co-schemers have such a relationship that it allows them to be unguarded in their conversations as they are in their requests of each other to engage in ticket-fixing,” according to the response.
Lastly, the prosecution asserted that the recorded conversations are “incapable” of provoking an emotional response from the jury, “especially considering the fact that defendants Lowry and Mulgrew are not participants in the conversations.”
When asked about Lowry’s motion, Assistant U.S. Attorney Denise S. Wolf pointed to the prosecution’s response.
Lowry’s attorney, William A. DeStefano, said most of the coarse language in question is found in portions of the transcripts that aren’t relevant to ticket-fixing.
“We’re asking the court to look at the transcripts and maybe redact them because not only would you be getting rid of irrelevant conversation, but you’d also be getting rid of conversations that may contain salty language that might make the jury believe these are bad people,” DeStefano said.
Mulgrew is represented by Angela Halim, who declined to comment. Tynes’ attorney, Louis R. Busico of Newtown, Pa., wasn’t immediately available for comment.