A federal judge ruled yesterday that the mail fraud case against Baltimore Del. Tony E. Fulton and a prominent State House lobbyist will be tried before a jury rather than a judge -- despite the defendants' concern that the public has excessively negative opinions of politicians and lobbyists.
In a second adverse decision yesterday for Fulton and lobbyist Gerard E. Evans, Judge William N. Nickerson ruled that key evidence against them could be introduced even though the materials relate to Fulton's official duties.
Evans and Fulton are charged with mail and wire fraud for allegedly conspiring to generate fees for Evans from several lobbying clients between 1997 and 1999. An 11-count indictment charges that Fulton helped Evans collect $400,000 in fees by proposing legislation they knew Evans' clients would want the lobbyist to fight.
The trial, which had been scheduled to begin May 15, was postponed yesterday because of a scheduling conflict and will start May 31 at the earliest, Nickerson said.
Fulton and Evans had asked for a bench trial.
"There's clearly a strong bias against elected politicians in this state and an even stronger bias against lobbyists," said Fulton's attorney, Richard D. Bennett, who himself has twice run unsuccessfully for statewide office. "There is a very poisoned well in terms of the attitudes people have."
But federal prosecutors insisted on a jury, arguing that the public should decide a case that would remove Fulton from office if he is convicted.
"It's rather remarkable, when you think about it, that Mr. Fulton is claiming we can't get a fair trial from the people who have re-elected him three times," Assistant U.S. Attorney Dale P. Kelberman argued. "We're not as cynical as the defendants are."
Robert C. Bonsib, a lawyer for Evans, said it was not "a big deal" whether the case goes before a jury or judge, but acknowledged that the defense will have to overcome negative opinions some jurors have about lobbyists.
"It's important for the jury to focus on this case and not all of the other cases that have been in the media" involving lobbyists and lawmakers, Bonsib said. "It will take some extra effort."
Under federal court rules, criminal cases are heard by juries unless both the defense and prosecution agree on a trial before a judge.
A defense attorney who represented Annapolis lobbyist Bruce C. Bereano in a 1994 corruption case said juries have a skepticism about State House dealings.
"The public's perception of lobbyists has been poisoned by the media," said Baltimore lawyer M. Albert Figinski. Bereano was convicted of defrauding some of his lobbying clients by billing them for contributions he made.
Nickerson also rejected Fulton's effort to exclude from evidence documents relating to his official duties as a legislator.
His lawyers had sought to prohibit the jury from seeing an October 1998 letter Fulton sent to then-Baltimore Mayor Kurt L. Schmoke seeking the mayor's support for lead-paint legislation Fulton was considering.
The legislation would have made it easier for victims of lead poisoning to sue paint manufacturers. Evans allegedly used Fulton's letter to collect tens of thousands of dollars in lobbying fees from several paint companies.
Prosecutors allege that Evans drafted the letter for Fulton to send to Schmoke. Fulton never introduced the legislation.
Official acts of members of Congress cannot be used against them in federal prosecutions, just as official acts by state officials can't be used in state prosecutions.
But Nickerson ruled that U.S. Supreme Court decisions make clear that federal prosecutors are free to use such evidence against state officials.
Bennett, a former U.S. attorney for Maryland, said that he would file an appeal on the issue should Fulton be convicted.
The indictment charges that as part of the alleged scheme, Evans steered a $10,125 real estate commission to Fulton when his firm purchased a $600,000 Annapolis office building in the fall of 1998. Fulton, a Democrat and 14-year veteran of the House of Delegates, also works as a real estate agent.