Ok, that speaks to (but doesn't answer, in my mind) the authority to record question. What about the disclosure issue?
'These people there said, `Tape-record the defense,' '' defense attorney David O. Markus declared, pointing to prosecutors Sean Cronin and Andrea Hoffman. ``When I called you, you tape-recorded me.''
The government witness, Trinity Clendening, agreed, admitting he recorded Markus on his home phone two times in December.
The strained exchange marked the second time that the defense lawyer got an opportunity to cross-examine Clendening, a Drug Enforcement Administration informant who inadvertently revealed on the witness stand last month that he had taped their conversations before the trial.
Markus said those recordings, along with a second government witness' taping of his private investigator, may have improperly given prosecutors a window into the defense strategy.
Markus attacked Clendening during the cross-examination for asking for money on the phone, suggesting the solicitation was meant to set him up as a lawyer who would pay for information. Markus is seeking to have his client's indictment thrown out.
U.S. District Alan Gold has the authority to dismiss the indictment, declare a mistrial or allow the trial to be completed. He also could instruct the jury on how to weigh the two government witnesses' testimony.
The U.S. attorney's office, though admitting it made a ''mistake'' by failing to follow policy, opposed a dismissal or mistrial. Last week. U.S. Attorney R. Alexander Acosta said the case supervisor, Karen Gilbert, should have sought approval from him and two other senior officials before having the two government witnesses place recording devices on their phones.
Oh hail, I'm going back to civil litigation.