Last Monday, Federal District Court Judge David Bury held an evidentiary hearing in Tucson to consider new evidence that prosecutorial wrongdoing took place during the criminal prosecution of imprisoned former Congressman Rick Renzi. Specifically, the judge considered whether the the FBI had offered money to the one “victim” Renzi had allegedly extorted, to change his testimony and make it unfavorable toward Renzi in order to ensure a conviction. As the hearing was ending and the payment exposed, Judge Bury told chief Department of Justice (DOJ) prosecuting attorney Gary Restaino he wrongly violated Renzi’s rights.
This is not the first time that those on the prosecution side have been accused of illegal activities by Judge Bury. According to Tucson.com, in June of 2010, "U.S. District Judge David Bury said federal agents illegally and repeatedly listened to calls between Renzi and Maria Baier, one of his attorneys."
Why would Restaino violate the law?
Restaino's wife, Leezie Kim, worked closely for former Arizona Democratic Governor Janet Napolitano, and Renzi had been rumored to be a potential contender against her for governor in 2006. In 2003, Kim took a sabbatical from Quarles Brady where she was an attorney to serve as the executive director of Napolitano’s Governor’s Citizens Finance Review Commission. She became the treasurer of Napolitano’s 2006 gubernatorial campaign and the treasurer of the Competitive Edge PAC in 2007, which was primarily started to support Napolitano.
Kim next became Napolitano’s general counsel in February 2008, and after Napolitano was confirmed as Secretary of Homeland Security, joined her in Washington as a deputy general counsel. Kim left Washington in 2010 after news reports indicated that she was involved in efforts to limit responses to politically sensitive Freedom of Information Act requests. In addition to these active roles, Kim also donated $400 to the Arizona Democratic Party in 2005 and $928 to Democratic candidates in 2008.
Like his wife, Restaino is also a staunch Democrat who has donated to numerous Democrats in the past, including Barack Obama, Hillary Clinton, Janet Napolitano and Felecia Rotellini. He contributed money to the Arizona Democratic Party, which sent out mailers against Renzi prior to the 2006 election. This happened while Restaino was prosecuting Renzi.
None of this activity was ever disclosed to the defense.
Renzi’s position all along is that he didn’t propose the federal land swap and would not have benefited from it — so there was no illegal activity. He simply thought it was a good deal for all the parties involved — even the Nature Conservancy had testified in favor of the land swap — and started to put the wheels in motion to make it happen.
Last July, Renzi discovered that the government’s key witness, businessman Philip Aries, who was to participate in the land swap, had recently emailed Restaino inquiring when his money for cooperating against Renzi would pay off. Aries had been told he would receive a monetary reward for testifying unfavorably against Renzi. It is Renzi’s position that Aries initially was going to testify and possibly exonerate Renzi until the government promised him money. That is illegal without providing notice to the defense.
The government's illegal wiretaps of phone calls to Renzi, thrown out of the original trial by Judge Bury, ironically, might have helped to exonerate Renzi. In one recorded call, Aries admitted that it was he — not Renzi — who had proposed the land for the swap, known as the Sandlin property. Yet, during the trial, Aries changed his testimony, stating that it was Renzi’s idea.
The hearing on Monday was full of contradictory statements — at a minimum, one or both of the two witnesses appeared to impeach themselves; at worst, they committed perjury. The primary FBI agent on the case, Dan Odom, kept denying that he offered Aries a payoff for testifying against Renzi. But Aries discussed in length during his testimony how money was offered to him — almost breaking down into tears as he discussed how he was going through a traumatic time in his life when he received the offer. Aries filed bankruptcy shortly afterwards.
Agent Odom admitted on the stand that he received promotions after his efforts persuading Aries to record phone calls with Renzi and testify against him. He also admitted that he thought Aries should be compensated for his extensive work recording conversations with Renzi and assisting with the case against him — which seemed to contradict his statements that he never offered Aries any money.
In criminal cases where the prosecution has withheld favorable evidence to the defense, a new trial has been ordered. At a minimum, the jury should have been informed of this bias by the prosecution’s key witness and alleged victim. At this point, the prosecution’s star witness may be thoroughly discredited as motivated by money, which would make the case for Renzi to receive a new trial.
However, Judge Bury suggested at the conclusion of the hearing that Aries’ credibility had already been called into question during the original trial, so it was less material now. Yet, in Horton v. Mayle, a recent case in this Ninth Circuit jurisdiction, the court held that some evidence of bias does not diminish the value of other evidence describing a different source of bias.
Compounding the problem in Renzi’s case is the complexity of the case. Business deals can be complicated and difficult for a jury to understand. The DOJ has been accused of targeting those it prosecutes with a political motivation.
New Jersey Governor Chris Christie, a former U.S. Attorney for the DOJ, stated in the Republican debate last week,
"It has been a Justice Department that decided that they want to pick who the winners and losers are. They like General Motors, so they give them a pass. They don't like somebody else like David Petraeus, they prosecute them and send a decorated general on to disgrace. It's a political Justice Department."
Renzi has been in prison since February. Upon first glance, this seems like just any other criminal case. However, if the key witness is discredited, will Judge Bury allow the verdict against Renzi to stand?