Federal prosecutors have asked a judge to prevent former Gov. John Rowland’s lawyers from using accidentally-disclosed privileged emails as evidence during his campaign corruption trial scheduled to begin Wednesday.
Rowland’s charges stem from allegations that he conducted work for a congressional campaign and conspired to illegally hide his compensation from elections regulators. Prosecutors say the former governor drafted up false contracts, designed to mask the reasons for his pay.
A jury has been selected to hear the case and decide whether Rowland broke the law while accepting payments from Brian Foley, the husband of former Republican congressional candidate Lisa Wilson Foley. He made a similar proposal to Mark Greenberg, another candidate who is running again this year.
The trial is set to start next week and the proceedings are expected to include testimony from the Foleys, who have pleaded guilty to related charges. But according to court documents filed Wednesday, prosecutors are concerned the proceedings may be slowed down.
That’s because they accidentally shared with Rowland’s lawyers a set of privileged emails including messages sent between Brian Foley and his lawyer. According to the motion, the feds acquired the emails when they executed a search warrant on Brian Foley’s laptop.
Prosecutors wrote they did not read the privileged emails but they turned them over to Rowland’s lawyers when they were sending the defense team other data during discovery.
“The government has recently learned that, in the process of producing Mr. Rowland’s potentially privileged communications to him, it inadvertently produced to the defendant other electronic data that had been marked as privileged, including those originating from other accounts,” the Wednesday motion reads.
Now, the former governor’s lawyers want to use some of that information at trial and they have added eight emails to their exhibit list.
The emails likely contain statements made by Foley to his lawyers—before Foley began cooperating with prosecutors—which Rowland’s attorneys hope will undermine Foley’s more recent testimony against their client.
Prosecutors and Foley’s lawyers want the emails precluded from trial.
“Mr. Rowland has no right to make use of Mr. Foley’s privileged communications in his defense, even if they are in some way helpful to his position,” Hubert Santos, Foley’s lawyer, wrote. “… Mr. Rowland’s rights do not supersede the sanctity of Mr. Foley’s attorney-client privilege.”
In court documents, Rowland’s lead attorney Reid Weingarten said they assumed that Foley had waived his attorney-client privilege when prosecutors sent them the emails. However, he suggested the privilege may not apply to the emails under an exemption that applies to messages used for crime or fraud.
Weingarten said Foley has testified that his lawyer wrote letters to defend the relationship between Foley and Rowland then submitted the letters “knowing that his relationship with Mr. Rowland was illegal and that the letters were false.”
In a response, Foley’s lawyer said Rowland couldn’t have it both ways by maintaining the agreement between he and Foley was legitimate but arguing it was false in order to meet the fraud exception.
“It seems disingenuous and duplicitous, therefore, for Mr. Rowland to be able to argue to the court, on the one hand, that the statements in Mr. Foley’s communications to his attorney were false in order to breach the attorney-client privilege but then argue to the jury, on the other hand that the statements, which incidentally operate to support Mr. Rowland’s defense were true,” he wrote.
The government also wants Rowland’s lawyers blocked from introducing any other evidence from the communications they were accidentally sent. The communications were not limited to emails between Foley and his lawyers.
“Any attempt to introduce other communications with the referenced attorneys in the midst of trial would inevitably delay the trial… Courts have routinely addressed attorney-client issues before trial. Such arguments are fact-intensive and, if made at the time of trial, impede the flow of the trial,” prosecutors wrote.
Rowland, who previously served 10 months in federal prison on a conspiracy charge after resigning the governor’s office in 2004, was indicted on the recent charges in April.
Several political insiders could be called to testify or be referenced during the trial when it begins next week.
According to a list included on a questionnaire for prospective jurors, attorneys may call or name Greenberg, Supreme Court Judge and former congressional candidate Andrew Roraback, former FBI agent and candidate Mike Clark, WTIC radio show host Will Marrotti, WTIC program director Jeneen Lee, former state Republican Party Chairman Chris Healy, and former state Speaker of the House Tom Ritter. Republican Sen. Kevin Witkos of Canton also confirmed Friday that he has been subpoenaed in the case.
