Defense lawyers in a widely watched transportation bid tampering case must get approval from a judge before issuing subpoenas, U.S. Magistrate Judge James B. Todd ruled Monday.
Todd will decide whether any subpoena is overly broad, and he'll also review any documents requested by the subpoena before they go to defense lawyers, he said Monday.
Todd's ruling, after a one-hour hearing in federal court in Lexington on Monday, was in response to disputes between federal prosecutors and lawyers for indicted road contractor Leonard Lawson, former state Transportation Secretary Bill Nighbert and a Lawson employee, Brian Billings.
All three were indicted in September in connection with charges relating to alleged tampering of road building bids to benefit Lawson-related companies during Gov. Ernie Fletcher's administration. All three have pleaded not guilty.
Prosecutors and defense lawyers have bickered over what defense lawyers are entitled to. The case has yielded thousands of documents, several tape recordings and one frozen fish.
Marc Murphy, an attorney for star witness Jim Rummage, said after Monday's hearing that the only thing he knew about the frozen fish was that it was given to Rummage by Lawson at Lawson's house — allegedly at a meeting where Rummage gave Lawson information about road contracts in exchange for cash. He did not know what kind of fish it was.
Defense lawyers for Lawson declined to comment on the fish Monday.
Assistant U.S. Attorney Ken Taylor also declined to comment, adding, "I'm not going to take the bait, no pun intended."
Frozen fish aside, Monday's hearing was focused on a subpoena of Rummage by Lawson's defense lawyers that asks for information on 35 items, including any artwork Jim Rummage's wife had sold, Rummage's pension paperwork, and any political contributions Rummage has made.
Prosecutors had asked that the subpoena be quashed, calling it a fishing expedition intended to intimidate Rummage.
Rummage has said that Lawson gave him $20,000 in cash in exchange for internal cabinet estimates on road projects that Lawson's companies were going to bid on.
Defense lawyers also wanted a recording made by Rummage on his personal cell phone that included a conversation between Rummage and FBI Special Agent Clay Mason. Jason Barclay, a lawyer for Lawson, argued in court Monday that defense lawyers should be entitled to at least hear the conversation, because their client is being charged based on comments they made to Rummage.
Rummage, who was working for federal prosecutors, taped conversations between himself and the defendants. The 22-page indictment includes excerpts from those recordings.
Taylor disagreed, saying the only reason defense lawyers wanted the tape was to play it for a jury and cast doubt on the prosecution and the investigation. Using deception in an undercover operation is a common and accepted practice, Taylor said.
"This is a red herring designed to create issues of prosecutorial misconduct that are clearly not there," Taylor said.
Todd did not rule on the issue of the recording in court Monday, saying he would take it under advisement.