A federal appeals court is in the middle of a dispute between a defense attorney charged in an obstruction conspiracy and a cooperator who helped prosecutors build the criminal case against the lawyer.
The dispute in Washington federal district court centers on sealed court records that involve the cooperator and several others whom the government identified as potential witnesses against the attorney.
The lawyer, Charles Daum, a veteran solo practitioner in Washington, is charged with two investigators in a scheme to obstruct a drug prosecution in U.S. District Court for the District of Columbia.
Prosecutors allege Daum introduced staged photos to dupe jurors into believing the drugs in the case belonged to the brother of his client. When jurors failed to reach a verdict, U.S. District Judge Paul Friedman declared a mistrial.
White and three others, including his brothers, were later charged with participating in a conspiracy to influence the jurors in White’s case. That new case went under seal. Daum’s lawyers want to get their hands on the documents in the case that would presumably reveal information about the substance of the cooperation the conspirators provided to the Justice Department.
For weeks now, Daum’s attorneys have fought for access to the court records in White’s drug case, saying the information will help Daum prepare his defense. Daum was indicted earlier this year. His attorney, David Schertler of Washington’s Schertler & Onorato, has vowed to fight the charges at trial.
Friedman and Senior Judge Gladys Kessler have issued sealed orders regarding the dispute. One of those orders is pending in the U.S. Court of Appeals for the D.C. Circuit. An alleged cooperator, Jerome White, is challenging a ruling from earlier this month.
In August, Kessler said it’s been a challenge to sort out which lawyers should have access to particular documents. The bulk of the litigation has been under seal, and in some instances the attorneys have filed documents ex parte.
“To complicate things further, the court must be mindful of the safety and security of all defendants in both cases,” Kessler said in the decision in August. Kessler said then that the case “demonstrates why permission to file ex parte should rarely be given.”
Gary Sidell, who represents Jerome White, asked the D.C. Circuit to review a decision from Kessler. Sidell, who declined to comment on the dispute, also asked the appeals court to stay the proceedings in the trial court.
Judges Karen LeCraft Henderson, Judith Rogers and David Tatel on Oct. 7 entered an administrative stay of Kessler’s order, giving the appeals court time to review the dispute.
The litigation in the appeals court, like the action in the trial court, is moving forward under seal.
The Justice Department and Daum’s attorneys on Wednesday individually filed responses, under seal, to Sidell’s request to stay the case. Daum’s lawyer, Schertler, declined to comment today.
Kessler is planning to meet with the lawyers in Daum’s case later this month for a status hearing. Daum is not scheduled to stand trial until early next year.