Alleging Conflict, Defense Seeks Mistrial in Judicial Fraud Case

On the eve of sentencing for a prominent attorney and two former Superior Court judges convicted of fraud and racketeering charges, a defense attorney has asked that the convictions be thrown out because of an alleged conflict of interest by the U.S. attorney.

Dennis Riordan, the lawyer representing attorney Patrick Frega, the key figure in the judicial bribery scandal that gripped this city for five years, asked for a new trial Tuesday after learning that U.S. Atty. Alan Bersin had disqualified himself from the case because he had once represented the Bank of America as a private attorney.

Two civil cases involving Frega suing the Bank of America figured prominently in the judicial corruption case. Prosecutors used the suits as examples of the improper relationship between Frega and the former judges.

After the guilty verdicts in the corruption case, Bank of America asked U.S. District Judge Edward Rafeedie for compensation, arguing that the bank had been damaged by Frega’s and the other defendants’ illegal actions. Bersin then recused himself from the case. Riordan insists Bersin should have disclosed his past ties to Bank of America before the trial.

Evidence showed that the judges handled dozens of Frega’s cases, received hundreds of telephone calls from him at their homes and offices and met secretly with him to devise trial strategies without notifying opposing counsel. Prosecutors showed that Frega charged his clients for the cost of gifts to the judges, and that the gifts and phone calls increased whenever Frega had a pending case.

Frega and ex-Superior Court Judges G. Dennis Adams and James Malkus were convicted Oct. 18 of mail fraud and conspiracy to commit racketeering. Ex-Judge Michael Greer pleaded guilty and testified for the prosecution.

Frega, Adams and Malkus are scheduled to be sentenced today by Rafeedie, a Los Angeles jurist who heard the case because all 11 federal judges in San Diego recused themselves because they knew the defendants. Greer will be sentenced Thursday.

Prosecutors argued that it was unnecessary to prove that verdicts were influenced by Frega’s ties to the judges--only that the undisclosed relationship between the lawyer and the jurists was unfair to other litigants.

Riordan is now arguing that Bersin is guilty of the same kind of conflict.

“Mr. Bersin’s conflict of interest is of particular importance in this case, because it is now apparent he has engaged in the very conduct--failing to disclose a conflict of interest to opposing counsel--that the government maintained constituted mail fraud on the part of Frega and his co-defendants,” Riordan wrote in his motion for a new trial.

Bersin, a former Los Angeles attorney, supervised a team of prosecutors but did not appear in court. After gaining prominence for his role in the Department of Justice’s crackdown on illegal immigration and drug smuggling, he is widely thought to be a contender for the No. 2 job in the Department of Justice.

In the judicial corruption case, prosecutors have asked for sentences of seven to nine years for Adams and Malkus and 11 to 14 years for Frega. Prosecutors have recommended that Greer be spared a prison term.

Retired appellate Justice Edward T. Butler wrote a letter asking for leniency for Malkus while at the same time acknowledging the damage done by the scandal.

“This sorry scenario involving our judges and a lawyer,” Butler wrote, “has done immeasurable harm to our society based on the rule of law. [Malkus’] fall from grace is a punishment more severe than those prescribed in the sentencing guidelines.”

Adams’ wife, Superior Court Judge Barbara Gamer, submitted a letter in which she said her husband takes Prozac and attends regular meetings of Alcoholics Anonymous.