New Haven Independent file photo
U.S. District Court Judge Janet Arterton (New Haven Independent file photo)

The day before former Gov. John G. Rowland’s second corruption trial began, U.S. District Judge Janet Arterton handed his attorneys a victory when she waived attorney client privileged, possibly allowing seven accidentally-disclosed emails to become evidence.

The emails were between Brian Foley, the husband of congressional candidate Lisa Wilson-Foley, and his lawyers, who were helping him to turn himself in to authorities.

Foley and Wilson-Foley pleaded guilty at the end of March to campaign finance violations. The two haven’t been sentenced, but they pleaded guilty to attempting to conceal $35,000 in payments to the ex-governor in 2011 and 2012 through Foley’s nursing home chain. At the same time, Rowland started working on Wilson-Foley’s campaign, but was never paid by the campaign.

Rowland’s charges in the case 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.

According to court documents, the feds acquired the privileged emails when they executed a search warrant on Foley’s laptop. Prosecutors wrote in court documents that 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.

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. He told Arterton on Tuesday that “feeding false information to the government” qualifies as an exception to attorney-client privilege.

Weingarten described Foley’s emails to his attorneys as “false.”

“They were part of a cover up,” he said.

Weingarten, a high-powered defense attorney, described Foley on Tuesday as a “tough witness” and the reason they wanted the emails entered into evidence.

Foley’s “going to testify the whole thing is a cover,” Weingarten told Arterton.

U.S. Attorney Liam Brennan argued that Weingarten hadn’t met the burden of proof that Foley — the government’s key witness — attempted to commit fraud when he sent the emails to his attorneys.

“The defense wants it both ways,” Brennan argued. They want to maintain the agreement between Rowland and Foley was legitimate, but argue it was false in order to meet the fraud exception.

“It can’t be both ways if there’s an objective standard,” Brennan said.

But Arterton was persuaded by Weingarten.

“At some point along the line Mr. Foley isn’t telling the truth,” Arterton said.

She said the grand jury testimony provided counsel with “factual representations they made to the government.”

“The defense has met the crime-fraud exception,” Arterton concluded.

She added Tuesday that “misleading and false information ought to be the subject of cross-examination.”

Assistant U.S. Attorney Christopher Mattei declined to comment on how Arterton’s decision will impact the trial, which starts at 9 a.m. Wednesday.

The first witness on the stand will be Mark Greenberg, who is running for a third time in the 5th Congressional District. The government says Rowland approached Greenberg in 2012 with a similar proposal to conceal his consulting services.

Editor’s note: An earlier version of this story mistakenly reported that the emails were entered into evidence. While they still could be argued into evidence, only attorney-client privileged had been waived as of publication of this article.