Published: October 07, 2008 04:46 pm      

Attorneys may keep recordings but not disclose contents

LEXINGTON, Ky. —

By RONNIE ELLIS

CNHI News Service



LEXINGTON, Ky.



A federal judge will allow attorneys for three men charged with bid-rigging and obstructing justice to keep a recording of conversations between prosecutors and a key witness but warned them not to reveal its contents.



The digital recording is of conversations between investigators and Jim Rummage, a former state highway engineer and the key witness against Lexington road contractor Leonard Lawson, his aide Brian Billings and former Transportation Secretary William Nighbert. The government alleges the three colluded to rig the bids in favor of Lawson’s company and that Lawson paid Rummage $20,000 for the bid estimates and later funneled money through a sham company to reward Nighbert.



Rummage, according to an FBI affidavit released earlier and the indictments, secretly taped conversations with Lawson and Billings. But prosecutors “inadvertently” turned over a recording to defense attorneys that U.S. Attorney Ken Taylor wants back, contending it includes a confidential “strategy session” involving Rummage and investigators.



But Tuesday, U.S. Magistrate James Todd ruled defense attorneys can keep the recording, warning them not to leak its contents and delayed any decision on whether it will be admissible during trial. Judge Danny Reeves, who will preside over the trial, will make that determination.



“The court is inclined to let defense retain these – whatever they are – CDs or tapes, but at this point, whether it’s admissible or the extent of its relevance is yet to be determined,” Todd said. “They can retain them but are restrained from revealing that to anyone – and I mean anyone – outside the defense team.”



Lawson’s attorney, Larry Mackey, contends the recording is important to his client’s defense and he said outside the courtroom Tuesday he wants the jury to hear it.



“We’ll be filing briefs and making arguments that not just (prosecutor) Mr. Taylor, not just the defense, but the people who’re making the decision in this case (the jury) should hear the tape,” Mackey said.



Other secret recordings came to light during Tuesday’s hearing. Apparently, Rummage used his personal cell phone to record 14 conversations, 10 of which were also taped by the government – but without the government’s knowledge. Mackey and attorneys for Nighbert and Billings, Howard Mann and Kent Wicker, respectively, want those too.



Taylor said 10 of the recordings are duplicates of recordings already provided to the defense; three are recorded messages he left on message machines but contain no new information; and one of another strategy session with investigators.



“Our primary argument is the whole conversation is confidential – it’s not relevant,” Taylor said. He said the recording also includes directions about how to operate FBI recording devices. Todd didn’t rule on those Tuesday.



Todd ruled on several other motions – granting a continuance to “late April” (Todd set no specific date); excusing Lawson from pre-trial hearings; and setting Dec. 3 as a deadline for pre-trial motions. Mackey said there will be several of those, including motions for change of venue “based on polling and advance publicity;” motions to dismiss; and that the government violated criminal procedure rules by disseminating grand jury information. Mackey objects to the earlier release of an FBI affidavit before his client was indicted and which contained allegations of wrong doing by Lawson and others.



Mann said he may file a motion to sever or separate Nighbert’s trial from that of his co-defendants as well as a motion to dismiss the charges. Wicker said he may file similar motions.







Ronnie Ellis writes for CNHI News Service and is based in Frankfort, Ky. He may be contacted by email at rellis@cnhi.com.