A longtime criminal defense lawyer in Washington who was convicted in a plot to dupe jurors this week lost his fight to convince a judge to throw out the indictment.
The attorneys representing Charles Daum, charged with fabricating evidence to help a client beat a drug charge, had complained that prosecutors belatedly disclosed favorable evidence just weeks before trial was set to begin.
Daum and two private investigators were found guilty at a bench trial in June in Washington's federal trial court. Prosecutors argued that Daum, a veteran lawyer with more thirty years of experience, intentionally used staged photographs to convince jurors that drugs belonged to his client's brother.
Daum denied any role in the plot, saying he relied on evidence his client, Delante White, provided to him for the defense against the drug charges. In the effort to get the indictment dismissed, Daum's lawyers, including David Schertler, and the attorneys for the private investigators argued that a witness' statements undermined the government theory of the case. The presiding judge Monday determined the witness evidence wasn't enough to justify the dismissal of the indictment.
Prosecutors turned over the disputed witness information several weeks before trial. The witness suggested that two other people—neither of whom were the defendants—participated in the staging of photographs that later made it into the trial as evidence.
U.S. District Judge Gladys Kessler in April found prosecutors violated their obligation to turn over exculpatory information in a timely fashion. The judge, however, said then she'd address the government's punishment later on.
The witness didn't testify at trial, Kessler noted in her decision Monday rejecting the call for the dismissal of the indictment. The judge also said the witness made differing statements about the events in question.
Kessler said Daum and the private investigators were not harmed by the late disclosure of the witness information. In upholding the indictment, the judge pointed to, among other things, what she called "weaknesses" in the witness' potential court testimony.
In the case against Daum, prosecutors relied in large part on recorded jailhouse phone calls that captured conversations between White, the former client, and his family and friends. Daum, charged in April 2011, was on several of the calls. His lawyers argued the calls did not demonstrate Daum knew anything about the evidence-manufacturing plot.
Lawyers for Daum and the investigators argued post-trial that the government should be sanctioned for failing to protect all of the recordings that captured two of White's brothers.
There's no evidence suggesting the government acted in bad faith by not preserving the recordings, Kessler said in her ruling. She also noted the evidence was in the possession of a jail, not the federal government.
"[F]inally, there is no reason to believe, given the strength of the government's case, that the evidence would have altered the final verdict in the trial," Kessler said.
Daum and the two defense investigators, Daaiyah and Iman Pasha, are scheduled for sentencing in November. Daum's attorneys this afternoon asked Kessler to push back sentencing until January. The government does not oppose the request.
Kessler this week set a deadline of late October for Daum and the Pashas to file any court papers seeking a new trial.