Officials of the U. S. attorney's office Wednesday accused Nancy Hoover Hunter's lawyers of "egregious misconduct," escalating an unusually acrimonious dispute over documents in Hunter's fraud trial.
In a written response to defense allegations of misconduct, prosecutors asserted that Hunter's lawyers are conducting a personal vendetta against Assistant U. S. Atty. S. Gay Hugo, designed to "rattle" her so she will commit an error that could be grounds for a mistrial or a successful appeal.
"In their zeal to attack Ms. Hugo personally, however, defense counsel have stepped across the bounds of propriety," the prosecutors said in their memorandum.
The prosecutors denied a defense claim that Hugo violated federal court rules in failing to give the defense copies of statements in which J. David (Jerry) Dominelli took full blame for the fraud that led to the collapse of La Jolla investment firm J. David & Co. In fact, according to the prosecution memorandum, Hunter's lawyers had copies of documents containing essentially the same information about Dominelli for years.
Was Top Executive
Hunter is charged with 234 counts of fraud, conspiracy and income-tax evasion stemming from her role as a top executive in J. David & Co., which collapsed in 1984 when nervous investors forced it into bankruptcy court. Investigations later showed that investors had been defrauded of $180 million. Dominelli, the firm's head, is serving a 20-year prison term for his part in the fraud.
Hugo, the chief prosecutor in Hunter's case, has argued that Hunter was second in command at the firm and was intimately involved in carrying out the fraud.
However, Hunter's lawyers, Richard Marmaro and Robert S. Brewer, are attempting to convince the jury that Hunter was unaware of the illegal activity.
The latest round in a longstanding fight over documents began last week when Marmaro and Brewer asked U. S. District Judge Earl B. Gilliam to dismiss the 234-count indictment because Hugo had improperly withheld the statements by Dominelli. They said the statements were critical evidence that could be used to help clear Hunter and should have been turned over to the defense long before the trial began two months ago.
They said Hugo had "stopped playing by the rules" and had "adopted a 'win at all costs' strategy, trampling along the way on court orders, due process rights and fundamental fairness."
The prosecution response filed Wednesday was prepared by Nancy Worthington, senior appellate litigation counsel for the U. S. attorney's office, and Assistant U. S. Atty. Stephen P. Clark, co-prosecutor in the Hunter case.
"Starting approximately 1 1/2 years ago, the defense began attacking (Hugo) on a personal level, questioning whether she was qualified to appear . . . in this case," they said in the response.
Hunter's lawyers "escalated and repeated their personal attacks since that time," they said. "Apparently relying on the adage that if you can't attack the facts and if you can't attack the law, attack the prosecutor, defense counsel have adopted the strategy of 'going after' Hugo."
They accused Marmaro and Brewer of "histrionics and misstatements designed to inflame the press and the public."
The prosecution memorandum points out that in late 1986, Hunter's personal attorney, Dwight Worden, prepared a statement for Dominelli in which he exonerated Hunter of any blame for the fraud. The statement notes that Dominelli had given Worden a copy of a 1984 document in which he similarly exonerates Hunter.
Further, in February, 1988, Worden wrote a letter to Dominelli that "makes clear" that Worden and Marmaro were "working closely" in preparation for Hunter's trial.
"It is not possible for the government to 'suppress information' of which the defense has been aware for years," the prosecution memorandum says.
"By their intentional failure to disclose to this court that the information in question was already known to the defense, counsel for the defendant have committed egregious misconduct," it said.
Gilliam is expected to hold a hearing on the matter within several days.