Pubdate: Sun, 03 Jul 2005
Source: Muskogee Daily Phoenix (OK)
7030321&SearchID=73213145808417
Copyright: 2005 Muskogee Daily Phoenix
Contact: http://www.muskogeephoenix.com/customerservice/contactus.html
Website: http://www.muskogeephoenix.com/
Details: http://www.mapinc.org/media/3319
Author: Donna Hales

JUDGE FINDS DISCOVERY TACTICS OF DA TROUBLING

A federal judge's ruling states she is troubled by "obstructive tactics"
used by Muskogee County District Attorney John David Luton's office during
discovery in a federal civil racketeering case.

The case filed by Kimm and Ruth Bushey is one of three civil racketeering
cases filed in the last year against Luton, his chief investigator and
office manager Gary Sturm and Luton's drug task force. The three cases are
filed by individuals who claim Luton and his employees illegally forfeited
and sold their property.

The ruling of Robin Cauthron, chief federal district judge in the U.S.
Western District (Oklahoma City) states: "Review of the pleadings in this
(Bushey) case makes clear that defendants have, at every turn, resisted
plaintiffs' discovery - often with no legitimate basis to do so."

Luton was out of town Friday and could not be reached for comment. Sturm did
not return a call to his office.

One of the three cases, filed by Paul Kripp, was dismissed July 9 by U.S.
District Judge Ronald A. White for being filed past the statute of
limitations deadline. That ruling is on appeal to the U.S. 10th Circuit
Court in Denver.

The Bushey case and another case filed by Margaret Baude are now before
Cauthron because three federal judges in the U.S. Eastern District in
Muskogee, including White, have recused themselves.

Examples of obstructive tactics that Cauthron referred to in her order
included District Attorney Investigator Sam Taylor of Warner refusing to
state how many guns he owned when the plaintiffs' attorney was taking his
deposition.

The ruling states Elizabeth R. Sharrock, the state assistant attorney
general representing Luton's office in all the cases, "with no justifiable
basis, supported her clients' violation of (federal law).

"In the brief deposition excerpts provided to the court, there are
approximately 13 instances where the deponent either refused to answer or
was instructed not to answer (by Sharrock)."

Cauthron's ruling states it appears defendants were asserting some variation
of a law enforcement privilege, without asserting a specific claim of
privilege.

"Such conduct violates the federal rules and will not be tolerated," the
ruling states.

Cauthron's memorandum and order cited that Busheys' allegations raise
"serious questions" regarding the conduct of Luton's office. Cauthron warned
any failure to act cooperatively and in good faith would lead to sanctions
against attorneys and clients on both sides.

Plaintiffs have sought to inspect certain storage facilities that Cauthron
ruled is "relevant to their claims and is reasonably calculated to lead to
the discovery of admissible evidence."

Luton's office argued such action might hamper law enforcement or cause
break-ins.

The judge ruled plaintiffs are entitled to learn what procedures are
employed by the defendants in processing seized property.

"If defendants do not maintain inventory logs or some other means of
tracking the disposition of seized property, then plaintiffs are entitled to
inspect the facilities so they may discover the process," Cauthron ruled.

Plaintiffs offered three reasons for seeking the information:

1. To determine what is happening to the property ... is it sold, converted
or destroyed?

2. To determine whether the district or the individual defendants are
benefiting from the property or the proceeds, as part of the civil
racketeering claim.

3. To further their request for punitive damages.

"Thus, plaintiffs' request has at least some relevancy, Cauthron ruled.

"The burden now shifts to the defendants to offer some basis for refusing to
provide the requested information."

Sharrock was out of the office Friday and could not be reached for comment.

Charlie Price, Attorney General Drew Edmondson's director of communications,
said: "We've seen the judge's order. The Attorney General's Office
disagrees. We do not believe we were obstructing. We merely filed a
protective order to protect the location of the evidence, and the judge
ruled against us, and we respect the ruling."

He did not address other information sought that was referred to by the
judge's order, as to assets of the defendants, etc.

Judge allows some information sealed

Cauthron said the attorneys for the Busheys are entitled to obtain the
information sought, with the exception of defendants' Social Security
numbers. Because some of the information is sensitive, Cauthron ruled some
of the answers, including home addresses, could be filed under seal and
ordered parties to meet and prepare a protective order to ensure the
confidentiality of some of that information.

The protective order agreed to was filed May 20. Confidential material to be
filed under seal includes home addresses of the law enforcement defendants
and other personal information such as assets, including banking and other
investment information. The judge ordered the defendants to release their
income tax returns from 1999 forward and to mark them confidential.

"Under no circumstance shall 'confidential material' be divulged to any
members of the media," the ruling states.

The confidential material is not to be used in connection with media
coverage of the litigation, the judge ruled.

The protective order provisions are not to terminate at the conclusion of
the litigation, and the confidential information is to be returned to the
defendants' attorneys, the ruling states. 
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