By Rachel Alexander
Tucson Federal District Court Judge David Bury issued a decision on December 30 denying a retrial for imprisoned former Congressman Rick Renzi of Arizona, developments which I've been tracking over the last six months. Bizarrely, at the same time, Bury admitted in his nine-page opinion that virtually everything factual Renzi had asserted in his motion for a retrial regarding the prosecution's misconduct was true. The prosecution withheld exculpatory evidence from Renzi's defense — which likely would have changed the jury's mind — not just once, but multiple times. Some of it was not discovered until after the trial was over, so the jury never got to see the other side of the story. That constituted a Brady violation, which the U.S. Supreme Court has held is a violation of due process. As a former prosecutor, I find this extremely disturbing.
Information is now coming out revealing striking similarities to the prosecution of former Alaska Senator Ted Stevens, which also involved corruption by FBI agents in order to obtain a conviction of a member of Congress. But when the judge in the Stevens' case discovered after the trial that the prosecutors had withheld crucial evidence, the entire indictment was thrown out.
The prosecution of Renzi was based on the premise he had proposed a federal land exchange that supposedly would have benefited him financially. But it came out after the trial that the prosecution's key witness/victim, Philip Aries, changed his story to say it was Renzi's idea to propose the land exchange instead of others, because Aries was told by the prosecution that he would receive money for his testimony. During the hearing to reconsider a new trial last October, Aries testified that he discussed compensation with an FBI agent for this: "$10,000 would be a home run," he said he told the agent. "$25,000 would be winning the lottery."
Judge Bury admitted in his December opinion rejecting a retrial that the proposal to include the Sandlin land, which supposedly would have benefited Renzi, really came from Aries, not Renzi. FBI Agent Dan Odom agreed on the stand during the October hearing that leaving out this exculpatory information was a "material omission." Nevertheless, though chief DOJ prosecutor Gary Restaino knowingly put on Aries' false testimony, he was never punished.
Additionally, a document in the court record from The Nature Conservancy showed that the organization had proposed the idea of a land exchange to Renzi and Renzi's staff, which would include the Sandlin land. In order to discredit this truth, Restaino, whose wife was a high-level staffer for Janet Napolitano and was concerned about Renzi challenging Napolitano for governor, found left-leaning Nature Conservancy employees who disliked Renzi to testify against him in the initial trial.
Ultimately, when the much-needed exchange finally worked itself out years later, The Nature Conservancy got the land they wanted, Fort Huachuca was able to lower its water usage as it needed — and Renzi was sent to prison.
There are at least four more major violations by the prosecution withholding evidence that have never been made public and were not presented to the jury.
First, Restaino deliberately withheld recordings of phone calls from the defense — until Renzi happened to figure out there were numerous calls in the initial document production that hadn't been given to the defense. Restaino was not punished for this withholding.
Secondly, Restaino withheld the fact that a former staffer of Renzi's, John Eckles, who planned to testify against him, had stolen money from congressional candidate Bradley Beauchamp, and Restaino likely did not file charges against Eckles in exchange for his cooperation against Renzi and a co-defendant. Renzi discovered this information much later on his own. Restaino was not punished.
Thirdly, Restaino withheld the truth from the judge who was monitoring the wiretapping, even lying on the monthly status report to the judge insisting he wasn't listening to Renzi's attorney-client privileged phone calls, when in fact Restaino"s lead FBI agent was listening and sharing them with other agents while keeping the calls unsecured in his desk. For some unknown reason, that judge recused herself after the wiretapping incident. The judge issued a scathing opinion throwing out the wiretapping evidence, but Restaino was not punished.
Fourthly, Restaino withheld the truth that the FBI had destroyed evidence that would have proven they illegally listened to Renzi's attorney-client privileged calls, and used this evidence to bring their indictment. Restaino was not punished.
Adding to the outrageousness, Judge Bury's decision in December to deny Renzi a retrial was based on inaccurate information. He said in his opinion that it was too late to consider the fact that the prosecution had withheld notes from the FBI agent, notes which revealed that Aries had told the agent that it was Renzi's former assistant, Joanne Keene, who had first proposed including the Sandlin property in the land exchange during a conversation they had. Bury's reasoning was that since this new information had been brought up in a reply brief, generally new arguments brought up in reply briefs are too late. Well, this is not just any "new argument" brought up in a reply brief, but the crux of the criminal case against Renzi. It's not Renzi's fault that he did not discover this Brady violation until that point — he is essentially being punished for Restaino deliberately withholding evidence.
Additionally, although Judge Bury admitted that Aries had been impeached and discredited as a witness for flip-flopping, Bury claimed that Aries' statement that Renzi promised him a "free pass" through the Natural Resource Committee had been corroborated by other witnesses, such as Joanne Keene and Guy Inzalaco. That's not true. Keene testified that Renzi mentioned that he had a "placeholder" into which he could assert the proposed legislation. But a placeholder merely means a position of legislation placed in a bill, nothing more. It doesn't imply a trade or "quid pro quo." And rather than corroborating Aries' supposed "free pass," Inzalaco testified that he could not remember the substance of what he discussed with Renzi! Not surprisingly, the jury acquitted Renzi of the charges that related to his conversation with Inzalaco.
How can a conviction of extortion stand, if it came out later that Renzi wasn't the one who had proposed the land exchange? When confronted in October with FBI agent notes of who Aries said really proposed it, and evidence of the money promised him, Aries, who originally said during trial that Renzi had proposed it, changed his testimony.
The similarities to the botched prosecution of former Alaska Senator Ted Stevens are disturbing. After Stevens was convicted of failing to report gifts, one of the FBI agents filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence that likely would have likely resulted in a verdict of not guilty. The judge ordered a hearing to consider whether there should be a retrial.
The New York Times reported that Judge Emmet G. Sullivan said, "In 25 years on the bench, he had ‘never seen mishandling and misconduct like what I have seen' by the Justice Department prosecutors who tried the Stevens case," repeatedly refusing to turn over documents to the defense. "Again and again, both during and after the trial in this case, the government was caught making false representations and not meeting its discovery obligations," he said.
At the hearing to consider a retrial for Renzi in October, Judge Bury similarly expressed his disgust with the prosecutors for withholding exculpatory evidence from Renzi's defense. Bury told Restaino that he had violated Renzi's rights.
Judge Sullivan ultimately held the Stevens' prosecutors in contempt for not disclosing the exculpatory evidence to the defense. Once he did that that, the DOJ filed a Motion of The United States To Set Aside The Verdict And Dismiss The Indictment With Prejudice. The prosecutors were removed from the case and two were suspended.
Due to the unprecedented level of corruption by DOJ prosecutors and FBI agents in Renzi's case, this conviction cannot stand. Yet Judge Bury said he will not order a new trial because the withheld evidence wouldn't change a single juror's mind. Really? There is more prosecutorial misconduct in this case - that would have exonerated Renzi - than in Ted Stevens' case! Any normal American chosen for a jury discovering these new developments would be horrified. Regardless, Bury doesn't even need to order a new trial, he can simply drop all the convictions.
Renzi is going to ask for a congressional investigation. Knowingly putting on false witness testimony is a serious offense that strikes at the heart of our justice system. Renzi was targeted for political reasons by powerful Democrats who control much of the legal system. If they can put an innocent man in prison, no conservative person in politics is safe. Renzi was targeted because he was a popular, charismatic Congressman from a Democratic-leaning district. Apparently the standard for Judge Bury is: "Guilty, even if proven innocent, because you don't want to cross the Obama and his DOJ." Contact Judge Bury and tell him the convictions must be thrown out.