|Bathroom break debate is part of Jefferson case|
By Bruce Alpert
WASHINGTON -- In a case already fraught with precedent-setting legal questions, attorneys for Rep. William Jefferson, D-New Orleans, are seeking perhaps another first in judicial opinions.
Is it reasonable, the lawyers ask a federal judge, to believe that a 58-year-old man could wait more than two hours after awakening in the morning before taking a bathroom break?
The issue is raised in motions intended to cast doubt on the Justice Department's contention that FBI agents did not restrict Jefferson's movements until they began a court-authorized search of his home, about 2 1/2 hours after they knocked on his door and awakened him from a night's sleep.
The timing is important because Jefferson's attorneys say a person who believes he is being restricted in his actions must be read the Miranda rights before he can be questioned by law enforcement agents.
In an earlier motion, Jefferson, now 60, said he answered a knock on his door at 7 a.m. on Aug. 3, 2005, barefoot, wearing an undershirt and a pair of pants he had quickly put on, to find the waiting agents. At one point, according to Jefferson, the lead agent told him this would "be the worst day of his life."
Jefferson's attorneys are asking federal Judge T.S. Ellis III not to allow Jefferson's statements, which the Justice Department describes as "incriminating," to be used in the upcoming trial in which the congressman is accused of bribery, racketeering and other charges. In the motion filed last month, defense attorneys said Jefferson was accompanied to the bathroom by an armed FBI agent who insisted that the nine-term congressman keep the door open.
In a holding pattern
How could the Justice Department claim that Jefferson's movements within the house had not been restricted until after the more than two-hour voluntary interview? the Jefferson brief asked.
"To say the least, the situation was unfamiliar, nerve-wracking and intimidating," said the brief filed by lead attorney Robert Trout. "Yet as the government's version would have it, the first time Mr. Jefferson needed to go to the bathroom after awakening that day was sometime after the 2 1/2-hour interview. Most people, if they thought about it, would say that is highly improbable. Ask any male who has reached the age of 58, and he might say, 'impossible.'¤"
Dr. Ronald Schwartz, a New Orleans urologist, said a definitive answer might be difficult to establish. Assuming no overnight bathroom trips, a good number of men in their late 50s would have a difficult time waiting more than two hours to go the bathroom, he said.
But Dr. Raju Thomas, professor and chairman of the Department of Urology of Tulane University School of Medicine, said that without examining medical records that might indicate a prostate problem requiring one or more overnight bathroom trips, it's impossible to determine whether the congressman had gone to the bathroom during the night.
Jefferson's brief, submitted in advance of Friday's scheduled motion hearing before Ellis in Virginia, disputes the Justice Department's description of the agents' visit to his New Orleans home as a "How-do-you-do-won't-you-please-come-in" description of the initial exchange between the agents and the congressman, and its contention that Jefferson was "fully clothed" during the questioning.
"The defendant does not agree that quickly pulling on a pair of trousers to run downstairs to open the door barefoot and in an undershirt constitutes being fully clothed," the brief said.
The proper venue
The attorneys for Jefferson, who says he is innocent, also urge the judge to seriously consider their claims that prosecutors sought to try the African-American congressman in Virginia because the court district has a lower percentage of potential black jurors than Washington, D.C., where they say the case belongs. The Justice Department has called the claims "preposterous."
If the government truly believed Virginia was the logical site for the trial, "why did the prosecution team find it necessary to orchestrate the location of the transfer of funds at the culmination of the sting to take place in Virginia?" Jefferson's brief said.
That is a reference to the July 30, 2005, handing over of a briefcase with $100,000 from Lori Mody, a cooperating government witness, to Jefferson at a Ritz-Carlton Hotel in Virginia. Jefferson's attorneys said the meeting with Mody originally was scheduled at a Washington hotel.
All but $10,000 of the money was found several days later in the freezer of Jefferson's Washington home.
Much of the legal wrangling over the case has dealt with questions of whether the Justice Department had the right to raid Jefferson's Capitol Hill office, something that had never been done to a sitting congressman. The courts have ruled that prosecutors should have done more to protect possibly privileged congressional material from the executive branch investigators.
In recent Justice Department motions, the government said the House counsel's office had helped Jefferson by transmitting copies of nonpublic grand jury subpoenas to the congressman's attorneys, information it says would have been invaluable to them as they monitored the progress of the grand jury's investigation.
There was no immediate comment from the House counsel's office.
A historic case
The Jefferson case is likely to be studied by constitutional lawyers for decades. It will establish precedents for whether a search of a congressman's office violates the separation of powers or speech and debate clauses of the Constitution.
Jefferson's defense team also said any payments alleged to have been made to businesses controlled by the congressman's family don't constitute bribes because the government has not shown he reciprocated with official acts such as introducing legislation, casting votes or providing taxpayer appropriations.
The Justice Department said Jefferson used congressional staffers, wrote letters on congressional stationery, and set up meetings with agencies and foreign governments based on his standing as a member of Congress.
Bruce Alpert can be reached at firstname.lastname@example.org or (202) 383-7861.