|Former Rep. William Jefferson seeking mental health records for witness|
by Bruce Alpert, The Times-Picayune
Monday March 02, 2009, 9:39 PM
WASHINGTON -- If a key government witness against former Rep. William Jefferson has "qualms" about producing mental health records and answering questions "it is the charges that must yield, " not Jefferson's "right to defend against them, " his attorneys say.
Documents filed Friday in U.S. District Court in Alexandria, Va., where Jefferson is scheduled to go on trial May 26 on 16 corruption charges, also reveal previously unreleased transcripts of FBI recorded conversations with the witness, Virginia businesswoman Lori Mody. The tapes describe her as worried about a possible stalker and having "a lot of personal issues" at the time she and Jefferson worked together on a Nigerian telecommunications project.
In the papers, Jefferson's attorneys said that at some of the meetings between Mody and the congressman "considerable amounts of wine was consumed." They also said the Justice Department had revealed in a previously sealed document that Mody was undergoing something (the phrase is redacted by court order) that affected her ability "to concentrate."
The attorneys said they are entitled to raise these issues to challenge the credibility of Mody, who they describe as the key witness against the nine-term New Orleans Democrat.
In a previous filing, the Justice Department questioned whether the personal issues raised by Jefferson's attorneys are merely an effort "to harass, humiliate or embarrass" Mody.
To allow Jefferson's team to raise these issues, the Justice Department said, would send a "chilling message to other citizens that they had better not dare stand up to powerful public officials unless they are willing to have their reputations besmirched in the process."
Defense attorneys said that if Jefferson had intended to be "personally vindictive, he could have publicly attacked Mody, outside the reach of this court, in his political campaigns."
"He could have denounced her from the Capitol steps or maligned her in the public square in New Orleans, " the attorneys said. "But he did no such thing."
They added that exploring whether a witness's ability to "observe and recall events is or was impaired is a fundamental aspect of any cross-examination."
Carl Tobias, a law professor at the University of Richmond, said that because there are audio and video tapes of conversations between Mody and Jefferson, questions about her mental health probably aren't as important as they would be in a "he said, she said" case without tapes.
"The judge might want to consider the question of why subject her to some invasion of privacy, or even some kind of humiliation, in public, " Tobias said. "This is not a swearing match between two people."
In one of the tapes, Jefferson is seen accepting a briefcase with $100,000 in cash from Mody -- money investigators say was to bribe the vice president of Nigeria. FBI agents later found all but $10,000 of the cash in Jefferson's freezer.
In their lengthy motions to federal Judge T.S. Ellis III, Jefferson's attorneys said Mody's personal problems are directly related to the case.
Mody's recollection of a meeting in a congressional dining room in 2004, before she went to the FBI and agreed to secretly record conversations with Jefferson, is critical because she has said that is when Jefferson demanded a 5 percent to 7 percent stake in a Nigerian telecommunications project.
But that account is in doubt, the attorney said, because in a later taped conversation with Jefferson, Mody reportedly said, "my memory's a little foggy there -- this is tough, this is a difficult time in my life."
The former congressman's attorneys also said it was Mody who suggested that Jefferson take an even larger share in the Nigerian telecommunications project because she would feel more confident if she knew he had a bigger personal stake in making it work.
In a taped conversation between Mody and Brett Pfeffer, a former Jefferson aide who served as Mody's investment adviser and is now serving an eight-year sentence in federal prison after pleading guilty to a bribery-related charge, the Jefferson filing quotes Mody as saying: "I've had a lot of personal problems, a lot of personal issues."
Jefferson's attorneys also are asking Judge Ellis to ignore a plea from one of Mody's health providers that it not be required to provide medical records, citing a Maryland law that makes such records private. Even if Maryland law applied to a federal case in Virginia, which the attorneys said it doesn't, it would be overridden by a defendant's right to question the credibility of a witness at his criminal trial.
Mody's attorney, Steven Zimmerman, declined to comment on the Jefferson filing.
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Bruce Alpert can be reached at email@example.com or 202.383.7861.