Defense attorneys in a high-profile corruption case in the state Transportation Cabinet are refusing to give back to prosecutors a recorded conversation between the FBI and their key witness that was mistakenly released.
Defense attorneys say the recording seems to indicate investigators were coaching their witness and shouldn't be kept secret.
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Assistant U.S. Attorney Ken Taylor filed a motion in U.S. District Court Wednesday asking a judge to order the return of the recording.
"Due to human error in the working of recording equipment, a confidential conversation between members of the investigation team, the confidential informant and his attorney, was inadvertently recorded," Taylor's motion said.
Lawyers for the three men indicted earlier this month — road contractor Leonard Lawson, former Transportation Cabinet Secretary Bill Nighbert and Brian Billings, who works for one of Lawson's asphalt companies — say the CD accidentally turned over to them contains pertinent evidence that they shouldn't have to return.
The recording includes a segment from March in which investigators were talking with Jim Rummage, a former state Transportation Cabinet official. He has emerged as the key witness for the prosecution after alleging that he took $20,000 from road contractor Leonard Lawson in exchange for confidential cost estimates of state road projects.
Rummage, at the time of the recorded conversation, had just taped a phone call with a Lexington attorney who had worked for Lawson and was about to call back that lawyer, Jon Woodall, for a second conversation.
"From my review of the discs, it appears that there were several different people in a room giving directions and making suggestions to a person I surmise to be Jim Rummage," wrote Howard Mann, Nighbert's lawyer, in a Sept. 16 letter denying Taylor's first request to give back the CD.
Taylor declined to comment about the details of the recording.
"This obviously will be litigated in court," he said. "This isn't a big deal. This isn't some major scandal. It was just something that was inadvertently disclosed."
This is the latest twist in a case that has garnered widespread media attention and is scheduled for trial on Nov. 12.
The three men face charges ranging from conspiracy to obstruction of justice for allegedly participating in a two-year scheme in which Nighbert is accused of directing confidential road estimates to Lawson in an effort to help him win a total of $130 million worth of contracts for state road building.
The defense attorneys also have alleged that prosecutors are holding back evidence that could help their clients. Specifically, Mann wrote, prosecutors did not turn over a recording of the second call between Rummage and Woodall.
Woodall, an attorney at McBrayer, McGinnis, Leslie & Kirkland who has represented Lawson's companies, said in an interview Wednesday that he rebuffed Rummage's inquiries about serving as his attorney during the second phone conversation.
Rummage previously had recorded conversations with Lawson, according to the 22-page indictments of Lawson, Nighbert and Billings.
In one talk, Lawson recommended that Rummage speak to an attorney with the initials JW about taking his case once the Transportation Cabinet's office of inspector general and the FBI began looking into whether Rummage provided the confidential road estimates to contractors.
Woodall confirmed that JW was a reference to him. Woodall said he never had any conversations with Lawson about representing Rummage.
"The implication, as I read the indictments, is that there was some talk about his attorney fees being paid for. That type of thing was never discussed with me," Woodall said.
Woodall said that in early March an employee from one of Lawson's companies, ATS Holdings, called him to suggest he call Rummage, who was being investigated. Woodall said he contacted Rummage, who said he was in a bad spot and needed to call him back.
"I took that to mean he wasn't getting good cell reception," Woodall said.
When Rummage called back, Woodall said he and a law partner asked whether the case had anything to do with Lawson or his companies.
"He answered very much in the affirmative. And what I told him was ethically, we could not represent him," Woodall said, adding that he then began to suggest other lawyers to Rummage.
But Rummage, according to Taylor's motion, already had an attorney. He is being represented by Marc Murphy of Stites & Harbison.
Woodall declined to say whether he felt he was being set up. "I was very troubled to learn just from reading the indictment that Mr. Rummage was talking with us when he already had legal counsel," he said.