Corporate Governance

US v. Stockman: Barnaba Wants to Sever

By Laura Almquist

As we have discussed in previous posts, Paul Barnaba has been pushing for an early trial and previously filed a Motion for Severance in May. The first motion was denied during a status conference on August 25, 2008, but the court invited Barnaba to supplement the motion because “it’s a motion that needs to be looked at in terms of where we’re at.” Thus, Barnaba moved again to sever his trial from his co-defendants on October 14, 2008 and “[a]s before, the Motion to Sever is premised on the substantial risk that Barnaba’s speedy trial and related trial rights will be compromised if his trial is not severed.” United States v. Stockman, No. 07-CR- 220 (S.D. N.Y. filed Oct. 14, 2008).

According to Barnaba, recent developments make immediate severance “even more crucial.” On August 7, 2008 Barnaba’s attorneys learned that the D&O insurance had been exhausted effective July 31, 2008. Barnaba first expressed his fear that the insurance would run during the July 12, 2007 status conference, but the Government dismissed this argument as “wholly speculative.” Barnaba has not been able to pay counsel for 2 ½ months and his Motion for Appointment of Counsel under the Criminal Justice Act filed August 18, 2008 is still pending. Barnaba claims that he is ready for trial now and making him wait for trial in May 2009 with his limited resources would “impair [his] ability to put on an effective defense.”

Now that the trial has been set for 13 months after Barnaba announced he was ready for trial, Barnaba claims that there is a “greater and more certain” risk his right to speedy trial will be compromised. In addition to waiting 6 ½ months for trial to begin, Barnaba argues that he should not have to wait an additional 4 months for the Government and Stockman to put on their case (each had stated that they would need to 6-8 weeks to present their cases) since his trial would need only a fraction of the time. Barnaba also points out that the length of delay and a defendant’s invocation of his right to a speedy trial are two key Barker v. Wingo elements. The Barker test is used by courts to determine whether a defendant’s right to speedy trial has been violated. A court will consider the length of delay, the reason for the delay, whether the defendant has asserted his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972).

Although the Government believed discovery was complete in February 2008, Barnaba states that it has become clear that discovery is incomplete and the other co-defendants have informed the court that the Government’s discovery delays will delay its readiness for trial. Barnaba argued that he has “stayed out of all discovery disputes” since announcing that he was ready for trial in April 2008 to “avoid any hint or suggestion that he is being disingenuous by simultaneously demanding speedy trial and asking for delays to examine additional Government document productions.” According to Barnaba the Government’s inability to provide him with complete and error-free discovery shows that it lacks of justification for a lengthy delay, which is another key Barker v. Wingo element.

Finally, Barnaba is not claiming that his right to a speedy trial has been violated since he tried this argument in his first motion and the court rejected it. He is arguing, however, that if his motion is denied and he does have to wait until May 2009 his right to a speedy trial and other “related trial rights” will be “compromised.”

The documents discussed here can be found on the DU Corporate Governance website.

Full post as published by The Race to the Bottom on November 24, 2008 (boomark / email).