Here is a chicken or the egg question: In political corruption cases, should the targeting of suspects for prosecution precede or follow the investigation?
Most of us would agree that the targeting of conspirators and co-conspirators in political corruption trials should follow an investigation, because it is the investigation itself that determines culpability.
“First the verdict, then the trial,” says the Queen of Hearts in the topsy-turvy world of Lewis Carroll’s “Through the Looking Glass.” The world confronted by Alice in Wonderland is supposed to be inverted, the way images are seen in a mirror. But in the real world, we want verdicts to follow trials and targeting in political corruption trials to follow complete and exhaustive investigations.
At some point in the corruption investigation of John Rowland, prosecutors decided to target Mr. Rowland as conspirator number one. Other apparently less important conspirators in the case were Brian Foley, the owner of Apple Rehab, and his wife Lisa Wilson Foley, then running in a Republican Party primary for the US House in Connecticut’s 5th District. At the time the investigation was opened, none of the principals involved were active politicians: Mr. Rowland, a former governor rebounding from an earlier corruption conviction, was a radio talk show host; Lisa Wilson Foley was an aspiring politician who previously had never held political office; and her husband, Brian Foley, was the founder of a lucrative business.
Once the targeting had occurred, prosecutors “turned” Brian Foley, who then became the chief witness at trial against Mr. Rowland. Before his great awakening, both Mr. Foley and his wife had insisted a) that Mr. Rowland had been paid $35,000 for services rendered to Apple Rehab, and b) that Mr. Rowland was tutoring Ms. Foley without pay during her unsuccessful run in the 5th District Republican primary. Andrew Roraback won the Republican primary and went on to lose in the general election to Elizabeth Esty, who captured the US House seat in the general election.
What was it that occasioned Mr. Foley’s conversion? Defense attorney Norm Pattis in a recent column suggested that prosecutors made Mr. Foley an offer he could not refuse. A plea to lesser charges as a reward for co-operation with the prosecution is one of the many tools available to prosecutors not found in the usual defense attorney tool box.
We may never know what undisclosed arrangements were made between Mr. Foley and prosecutors. We do know that prosecutorial privilege did permit aggressive prosecutors to offer Mr. Foley a deal in which he pleaded guilty to a misdemeanor charge for which he was sentenced to a fine he could well afford and three months in a half-way house.
Considering the rhetoric deployed by prosecutors in their summation arguments, Mr. Foley got off, as criminals sometimes say, with a “slap on the wrist,” if not a slap on the back.
“In the Rowland case,” Mr. Pattis wrote, “Brian Foley got a slap on the wrist, a brief period of home confinement, for conspiring to break campaign finance laws, a crime, the prosecution intoned at Rowland’s trial, that undermined the integrity of the republic.”
One of the “underminers,” investigative reporter Jon Lender reminds us, was Apple Rehab lawyer, Christian Shelton, who drafted the notorious contract between Mr. Rowland and Mr. Foley, the linchpin of the prosecution’s case against Mr. Rowland.
In an e-mail to Mr. Foley, Mr. Shelton -- unindicted co-conspirator “Attorney 1” in the prosecution’s indictment of Mr. Rowland – wrote “I would recommend that due to [Rowland's] background and the compliance issue that…the contract be between my Law Office and [Rowland] — that way there is no connections."
The indictment itself suggests that Mr. Foley and Apple Rehab’s attorney played a leading role in the deception for which Mr. Rowland was vigorously prosecuted. And the e-mail correspondence between Mr. Foley and Mr. Shelton strongly suggests that prosecutors may have suffered a numerology dysfunction. Mr. Foley, rather than Mr. Rowland, may have been conducting the deception orchestra. Mrs. Foley spoiled the tune somewhat when she suggested, continually during her defense, that Mr. Foley’s deception was so complete it fooled even her. She thought – and said repeatedly in negotiations with prosecutors – that Mr. Foley was paying Mr. Rowland for legitimate consulting work he had performed for Apple Rehab.
Mr. Lender now wants to know when the statewide Bar Counsel and the Chief Disciplinary Counsel intend to sanction Mr. Shelton.
He will find that in Wonderland, where reality is inversely mirrored, political targeting is occasionally more important than investigations.