Defense lawyers for an indicted road contractor have subpoenaed the records of a whistle blower who triggered the investigation into alleged bid tampering of state road contracts. But federal prosecutors said during a Tuesday hearing in federal court in Lexington that they will ask a judge to quash that subpoena and another seeking a host of transportation cabinet records.
Larry Mackey, an attorney for road contractor Leonard Lawson, sent the Transportation Cabinet two subpoenas Monday. The Herald-Leader obtained the subpoenas through a public records request.
Lawson, former Transportation Secretary Bill Nighbert and Brian Billings, a Lawson employee, were indicted in September on charges that they tampered with the bidding process for $130 million in state road contracts in 2006 and 2007. James Rummage, a former transportation cabinet engineer, said he has received $20,000 in cash from Lawson for providing internal cabinet estimates on road projects. Rummage later worked with federal investigators, taping conversations between himself and key members of the transportation probe.
Ryan Griffith, a transportation employee, first tipped Transportation Cabinet Office of Inspector General investigators that Rummage had asked for the estimates in November. According to court documents, Griffith had kept a log of Rummage's requests for the cost estimates of road projects. Griffith has declined to discuss the investigation or the case.
The subpoenas ask for a host of information from the Transportation Cabinet and Griffith, including all communications between transportation officials and the Department of Justice and all e-mails sent by Griffith, Rummage and former State Highway Engineer Sam Beverage. Defense attorneys also want OIG investigations of any key figure in the case, change orders approved for the construction projects of other contractors and tax information for Rummage. From Griffith, defense attorneys are asking all communication he had with Beverage and Rummage.
It's unclear why defense attorneys are interested in Beverage, a key figure in the investigation of state hiring practices during former Gov. Ernie Fletcher's administration. Beverage has not been charged in the case or mentioned in court documents. Beverage could not be reached for comment.
Assistant U.S. Attorney Ken Taylor told U.S. Magistrate Judge James Todd during the Tuesday hearing that he plans to file a motion asking that those subpoenas be quashed. Taylor has a pending motion asking that a defense subpoena for detailed financial information about Rummage also be quashed.
The legal questions about evidence in the transportation case led Todd on Tuesday to agree to move the Nov. 12 trial date to late April. All three have pleaded not guilty.
Todd also decided Tuesday that a portion of a recording that has been at the heart of a disagreement between federal prosecutors and defense lawyers should be kept under seal. But Todd did not rule whether a jury will hear the tape.
Prosecutors had inadvertently given defense lawyers a portion of a recording that included Rummage talking with Taylor and federal investigators. Prosecutors had asked that the recording be returned. Defense lawyers, however, said the recording should be heard by a jury because it shows that prosecutors were trying to manufacture charges against their clients, a charge prosecutors denied in court documents.
Defense lawyers had also asked that prosecutors turn over a second recording made by Rummage on his personal cell phone. Neither defense lawyers or prosecutors knew Rummage had made the recordings until a Sept. 30 meeting with Rummage.
Prosecutors had given defense lawyers all but one of the 14 recordings Rummage made, but said the last recording was not discoverable because it was a private conversation between Rummage and investigators.