After revelations that prosecutors blogged anonymously online about open investigations, the scandal resulted in the resignations of three senior members of former U.S. Attorney Jim Letten's staff, as well as Letten himself.
However, attorney Buddy Lehmann says he believes even more behind-the-scenes misconduct may have factored into the decision for the DOJ to abruptly shut down the River Birch case.
Lehman says a hearing was set for today at 2:30 in which a magistrate judge was going to order federal investigators to allow defense experts to examine a recording device used by one of the targets of the investigation.
According to Lehmann, federal investigators gave businessman Mark Titus a digital recorder hidden in an ink pen to capture conversations with Mark Fazzio, another target of the River Birch Probe.
Lehmann describes the use of the device:
"The date was June 3rd, 2011. At that point in time, the federal government, the federal agents, and Letten's prosecutors...both (Jim) Mann and (Sal) Perricone in particular...they were investigating Mark Titus. They were trying to get him to bring his brother-in-law, Dominick Fazzio, into the federal government to meet with the U.S. Attorney's office, to try to get him to agree to cooperate against his employer Fred Heebe."
Lehman says there were three separate meetings between Fazzio and Titus on June 3, 2011. "And the whole point of those conversations were to try to get him to come to the U.S. Attorney's office...to agree to cooperate against Fred Heebe, his boss. Those meetings were recorded. However, the last meeting that day, that occurred right before, or right when, Titus was ultimately able to prevail on getting Fazzio to join him to go to the U.S. Attorney's office, to meet late at night on a Friday night, without his then lawyer...who was representing him in the River Birch investigation."
Lehman argues that it would be serious misconduct for federal investigators to use a third party to get Fazzio to meet with prosecutors without his lawyer being present.
"The government has always tried to maintain...that their meeting with Fazzio that night had nothing to do with River Birch. Well, that's all BS, quite frankly," Lehmann said.
According to Lehmann, Fazzio did meet with federal investigators that night, and did not agree to testify against Heebe. "At that point, the FBI agents, Mr. Mann, and Perricone, they searched Fazzio, and didn't find anything...They searched Titus, and to their great surprise, they found on Titus a pen recorder."
Lehmann says the federal investigators later discovered Titus had used the recorder to secretly record some of his earlier meetings with the FBI.
"So, at the first hearing to dismiss for misconduct, when Titus was then on Team USA, I asked him whether or not, when he went back to Fazzio's home for that last meeting, did he record that meeting on his pen recorder? And Titus then testified that he didn't think he did, he was afraid to turn it on. Since then, government prosecutors, mostly Mr. Mann and Mr. Perricone, have represented to judges, that there was no conversation on that pen recorder relating to this June 3rd situation, and that none have been deleted. Well, now that Titus is no longer on Team USA, we've been getting some communication with him, and we're now given to understand that he may very well recorded that last meeting...and he very well have recorded the secret meeting in the U.S. Attorney's office."
Lehmann says he has been trying for months to have his own experts forensically examine the pen and the digital recordings to see if there was any recorded conversation(s) on it, and/or whether there was any evidence that any conversations had been deleted.
"A couple of weeks ago, our experts met with the FBI...and they would only let our experts look at the pen recorder. They wouldn't let them do any kind of test. Well, we went back before (the federal Magistrate Judge,) and she ordered that this afternoon at 2:30, our experts were going to meet again with the FBI agents, and they were either going to agree to allow our team to examine this, or she was going to order it at 2:30 this afternoon...that we would have the right to examine this pen recorder to see if anything had been deleted."
This morning, hours before the hearing with the Magistrate Judge, Lehman got the call that the feds were dropping the entire case and dismissing charges against his client Fazzio.
Does he believe the dismissal was solely related to the blogging scandal? "I think, no...I think there were other things that were being done which created a culture of misconduct. And so, I think the blogging is at issue...I think the recusal of the entire office contributed to that."
Lehmann went on to outline more possible misconduct by prosecutors investigating River Birch:
"I think the fact that they had this secret meeting behind (Fazzio's attorney's) back was misconduct...I do know, for example, the U.S. Attorney's office, at that secret meeting that Friday night, they actually whited out (names on the sign-in sheet.) They had just moved into a building with a security guard, and they were required to sign in. So when Fazzio and Titus got there, they signed in. When it became apparent that they had signed in, Mr. Mann went down, grabbed the sign-in sheet from the private security guard, whited out the signatures...the fact that Titus and Fazzio and the agents had signed in...he whited that out, and brought it back down and gave it to the security guard. That's pretty serious misconduct, in my estimation."