Judge wants to know why he shouldn’t sanction Fortenberry attorney over closing argument | Crime-and-courts

Perhaps it’s no surprise in the case of a man whose orbit is known as Fortlandia that an attorney has had to come to the defense of another attorney.

Such is the case in the United States v. Jeff Fortenberry, the former Republican congressman from Lincoln who was convicted by a jury of lying to federal agents and trying to conceal the source of $30,000 in foreign campaign funds.

In the month since sentencing Fortenberry to two years of probation, U.S. District Judge Stanley Blumenfeld Jr. has turned his attention to Fortenberry’s lead attorney, John Littrell of Los Angeles.

A stickler, Blumenfeld bristled at a portion of Littrell’s closing argument to jurors concerning Fortenberry’s fate. The judge’s concern: Littrell had suggested to jurors that Fortenberry had testified in the case — through his taped statements to the FBI. Even though Fortenberry had not testified in court and even though the judge had admonished jurors that they were forbidden from holding Fortenberry’s silence against him.

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Moments after jurors began deliberating Fortenberry’s fate in March, Blumenfeld upbraided Littrell over his argument. He noted that he had made it clear, in no uncertain terms, that jurors were not to consider Fortenberry’s silence in their deliberations. He then took the rare step of initiating an “order to show cause” as to whether Littrell should be “sanctioned and/or referred to the standing committee on (attorney) discipline” in California.

The problem: Prosecutors are not allowed to bring up how defendants refused to testify or speculate as to why they didn’t testify. In turn, the defense isn’t allowed to testify for their client or suggest reasons their client didn’t testify, beyond the fact that it’s their constitutional right to not testify. In short, closing arguments are supposed to be centered on actual evidence presented at trial, not on what witnesses would have said.

“When confronted about the impropriety, Mr. Littrell responded that he believed ‘it was a fair comment’ and that ‘reasonable minds can disagree about that,’ ” Blumenfeld wrote. “Because of the seriousness of this issue and Mr. Littrell’s response to it, the Court does not believe that it can let this matter stand without taking any action.”

This week, an attorney for Littrell responded to the judge, defending the former public defender’s closing argument. California attorney Guy Iversen noted that attorney arguments are often made on the fly as lawyers seek to “zealously advocate” for their client.

He cautioned Judge Blumenfeld to “take care not to use (his) authority in a way that unreasonably chills advocacy by defense counsel.”

“Due to the difficulty of these decisions and the speed at which these must be made, there is always a risk of getting them wrong,” Iversen wrote.

Blumenfeld has suggested that Littrell was wrong when he told jurors: “So the court instructed you, rightfully so, that you cannot consider the fact that the Congressman didn’t testify … but that’s a hard instruction to follow, especially in a case where we’re taking about what’s in (Fortenberry’s) mind, what he knew, what he remembered and what he understood. And we don’t have to explain the decision not to testify but I’m going to. And the answer is that he did testify. … And the testimony that he gave in those (FBI) recordings was unvarnished, unprepared, uncounseled … his memory is not better today than it was in 2019, so there’s nothing really to add.”

Blumenfeld said Littrell compounded the error by going on “to explain what his client would have said had he elected to testify.”

When the judge confronted him outside the presence of the jury, Littrell apologized if the judge thought he had “gone too far.” He said he had been wrestling with how to address the issue for a long time in court.

“Jurors have a real problem” when a defendant doesn’t testify, Littrell told the judge. “So I feel some obligation to say something about it. … But if I’ve gone too far, and it sounds like the Court feels I have, I certainly apologize. And I guess I would acknowledge that the risk falls on the defense when we do that. I felt it was a fair comment on the issue … but certainly reasonable minds can disagree about that.”

The judge seemed incensed by Littrell’s explanation, later writing: “It is difficult to imagine how Mr. Littrell could believe that it was ‘fair’ to introduce facts that were not presented at trial and (not) subject to cross examination. Indeed, Mr. Littrell maintained this position even after the Court explained the manifest unfairness of this tactic. … The response suggests that Mr. Littrell not only fails to see anything wrong with his argument but also that he may continue to so argue in future cases.”

Littrell, who has been a lawyer for 20 years, and his attorney responded to the judge this week, asking Blumenfeld not to impose sanctions. At Blumenfeld’s questioning, Littrell disclosed another time in his legal career when he told jurors about a client’s decision not to testify. In 2010, Littrell told a jury that he had told his client not to testify. The judge in that case told him it was improper. “I agree,” Littrell said.

In Fortenberry’s case, Littrell said he doesn’t write out scripts when he does his closings. “One risk of speaking without notes is that I may make an argument that is imprecise or poorly worded,” he said. “That is what happened here. In hindsight, I see that my comments were inartful and capable of being interpreted as arguing facts not in the record.”

His attorney added that Littrell has learned his lesson. At the same time, Iversen said portions of Littrell’s arguments were perfectly reasonable: that Fortenberry’s statements to the FBI were true and that his memory “would not be better in 2022 than in 2019.”

Blumenfeld will decide whether to take action against Littrell in coming weeks.

Meanwhile, Fortenberry is appealing his convictions and sentence. One of his trial and appellate attorneys is Denver-based lawyer Glen Summers, who once was a groomsman for Texas Sen. Ted Cruz and a law clerk for the late U.S. Supreme Court Justice Antonin Scalia.

Speaking of attorneys, Fortenberry’s latest campaign finance report lists $27,400 in payments to Littrell and the handful of attorneys who represented him at trial. That brings the total Fortenberry has paid for legal services this year to more than $625,000.

That money has come from his campaign funds, which have been depleted. Under federal law, elected officials are allowed to use campaign donations to pay for expenses related to campaign violations. Fortenberry is now working a job in Lincoln, making $144,000 a year, court documents say.

The additional $27,000 Fortenberry’s campaign paid to his defense team came just a few weeks before his attorneys argued that the $25,000 fine Judge Blumenfeld imposed was too steep.

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