Attorneys for John G. Rowland filed a motion Tuesday that both broadly and narrowly attacks the criminal indictment that accuses the former Republican governor of conspiring to act as a secret paid consultant to the failed congressional campaign of Lisa Wilson-Foley in 2012.
Rowland’s legal team asks Senior U.S. District Judge Ellen Bree Burns to throw out the entire case and, if that fails, to narrow the government’s case in a way that could bar testimony from Mark Greenberg, a congressional candidate who says Rowland proposed a similar arrangement to him in 2010.
“The Government here is attempting to criminalize conduct that is simply not illegal. In doing so, the Government has stretched the bounds of the law well beyond what Congress had intended and well beyond what any court in this Circuit has found permissible,” the lawyers said.
The U.S. Attorney's response is not due until June 16.
Reid H. Weingarten, the nationally known attorney leading Rowland's defense, also pressed for advantage in jury selection should Burns refuse to dismiss the case, asking for an expanded right to examine jurors for bias from the extensive publicity that he says has created a "poisonous environment."
A federal grand jury in April indicted Rowland on seven counts, accusing the former Republican governor, congressman and conservative radio host of soliciting the two congressional campaigns in 2010 and 2012 to secretly pay him as a political consultant.
Greenberg rebuffed him in 2010, but Wilson-Foley and her husband, Brian Foley, have pleaded guilty to federal charges in the case, saying they agreed to secretly pay for Rowland's help through a consulting contract with Foley's health-care company.
Foley's paying $35,000 to Rowland constituted an illegal campaign contribution, because the payment was not disclosed in campaign finance reports to the Federal Election Commission and that the contribution exceeded federal contribution limits, the indictment says.
But the broad assault on the indictment by Rowland's lawyers includes a claim that the statutory limit on campaign contributions was unconstitutional. In short, Rowland's lawyers say any wrongdoing was limited to Wilson-Foley and her husband.
"The Indictment fails to allege unlawful conduct by Mr. Rowland. Each of the Indictment’s seven separate counts should be dismissed for this reason. Each count either fails to allege the necessary elements of the offense charged, or the specific facts alleged fall beyond the scope of the relevant criminal statutes at issue," the lawyers said.
Effort to block testimony from Greenberg?
Should they fail to convince Burns to dismiss the entire indictment, Rowland's lawyers appear to be trying to at least get the judge to narrow the indictment by throwing out counts related to what the government says were Rowland's efforts to cut a similar deal with Greenberg.
If successful, that could give Rowland's teams grounds to object to testimony by Greenberg. Without Greenberg's testimony, the defense could have a better chance at portraying Wilson-Foley and Foley as incriminating Rowland in an effort to win leniency for their admitted wrongdoing.
Rowland's lawyers say the government wrongly claims that Rowland schemed with Greenberg to draft a false document -- a contract that would have paid Rowland through Greenberg's non-profit animal rescue center instead of through his campaign.
"First, an unsigned, unexecuted draft contract between private parties (on which no work was ever performed and no payments were ever made) cannot be false. Holding otherwise would be tantamount to criminalizing an inchoate thought crime," they said.
Jury selection and trial in the case are set for September.
Facing impeachment and a federal bid-rigging investigation into gifts and favors from state contractors, Rowland resigned as governor July 1, 2004, and pleaded guilty to a corruption charge Dec. 23, 2004. Three months later, he was sentenced to a year and a day in prison, ultimately serving 10 months.
Rowland reinvented himself as the host of a popular afternoon talk show on WTIC-AM. He resigned in August when it was clear that a new indictment was imminent.
Weingarten, his lawyer in the new case, promised after Rowland's arraignment that the former governor would aggressively contest the new charges.
Publicity creates 'toxic environment' for jurors
The motion to dismiss and supporting documents were filed Tuesday in U.S. District Court in New Haven. A second motion was filed in case the first fails: It asks the court to allow an expanded examination of prospective jurors to combat against pre-trial publicity.
"Our system of justice depends upon trial in the courtroom, not in the media," Weingarten wrote. "That principle is under threat here. Mr. Rowland has been the subject of an exceptional amount of pre-trial publicity, much of which discusses Mr. Rowland’s past conviction and assumes Mr. Rowland is guilty of the charges currently lodged against him. That publicity has already created a toxic environment among potential jurors."
Weingarten wants permission to examine prospective jurors with a special questionnaire and direct questions, plus the right to peremptory challenges that would allow him dismiss up to five jurors without stating a cause.
"Those protections are warranted here," he wrote. "Mr. Rowland’s term as governor, his prior conviction, and the intense media coverage of his indictment and arraignment have created a poisonous environment in which potential jurors have been bombarded with the suggestion that Mr. Rowland is corrupt, guilty, and deserving of jail time—all before one minute of testimony or evidence is heard."