A month before the scheduled start of a high-profile trial, a lawyer has asked to be relieved of the lead role in defending a former federal agent accused of protecting drug dealers he believed were in the local mob.
Defense lawyer James P. Harrington, 78, has a recurring medical issue, and he told a federal judge last week that he is making the request on "the strong medical advice" from his cardiologist.
But a prosecutor called the request a tactic to delay the trial of retired Drug Enforcement Administration agent Joseph Bongiovanni, a bid to give the defense more time to review evidence, obtain witness identities and "orchestrate" other legal maneuvers – and the government warned it could potentially jeopardize the safety of witnesses.
People are also reading…
"He's telling you he can't try this case," Assistant U.S. Attorney Joseph M. Tripi told U.S. District Judge John L. Sinatra Jr. at Thursday's hearing. "I don't believe a word of it. This court shouldn't believe a word of it."
Tripi told the judge he is disturbed by the timing of Harrington's request, given the government's concerns of possible witness intimidation. Harrington's request came as the defense lawyers for Bongiovanni and co-defendant Peter Gerace Jr., the owner of Pharaoh’s Gentlemen’s Club in Cheektowaga, were about to be permitted to share the identities of many prosecution witnesses with their respective clients.
The judge has prevented defense lawyers from sharing the identities of witnesses with the defendants because of concerns about the witnesses' safety.
Tripi has previously expressed safety concerns for about a dozen of the approximately 100-plus witnesses that the prosecution expects to call to testify during the trial.
In January, the judge allowed prosecutors, in their discretion, to designate certain witnesses listed in pre-trial submissions as a "protected witness," rather than by their true names, through May 10. The judge scheduled a May 10 hearing to discuss with prosecutors and defense lawyers issues surrounding witness identifications.
The day before that hearing, Harrington asked U.S. Attorney Trini Ross to meet him at a local coffee shop, where he revealed his medical condition and let her know that he was going to ask the judge to appoint a lawyer to relieve him as Bongiovanni's chief defense lawyer. Harrington has said he could stay involved in the case as a co-counsel during the transition, and perhaps even through the trial.
"Thank God the U.S. attorney didn't wait an extra day to bump into me and tell me about what had transpired there, because the witness identities would have been verbally released – all but 11," Tripi told the judge at least week's hearing.
"We were very restrictive in the amount of protected witnesses we listed," Tripi told the judge. "But there are dozens of others that I'm concerned about – people who worked at Pharaoh's, dozens of others."
The mother and roommate of one witness found rats on their cars where the witness lives, Tripi said last week.
In March, Sinatra ordered Gerace – who faces bribery, drug trafficking and sex trafficking charges – to remain in custody following his arrest on witness tampering and drug charges.
'Fighting for his life'
Attorney Eric Soehnlein, a member of Gerace's defense team, told the judge he opposes delaying the trial over the request for a new Bongiovanni lawyer, given that Gerace is in custody. And Soehnlein told the judge that Gerace's defense team needs to be able to discuss the witnesses with him, given the nature of the charges against him.
Adding a lawyer to take on the lead role of defending Bongiovanni, even with Harrington remaining in a secondary role, will most likely lead to a request for a trial delay to give the new lawyer time to become familiar with the case.
Once Bongiovanni and Gerace learn who the witnesses are, "we have absolutely zero faith" they will not disclose their identities to others, Tripi told the judge.
"As Mr. Soehnlein said, Mr. Gerace is fighting for his life, so he would do anything to sabotage witnesses," Tripi said at the court hearing. "Mr. Bongiovanni is fighting for his life, and we don't put anything past either of them."
Authorities accuse Bongiovanni of accepting $250,000 in bribes from drug dealers he believed were associated with organized crime, including Gerace. The former federal agent is accused of blocking investigations into suspected drug dealers and providing drug dealers with information about investigations and cooperating sources. Gerace, who has denied he is involved in organized crime, is charged with bribing Bongiovanni and conspiring to engage in drug trafficking and human trafficking at his strip club.
Both have pleaded not guilty.
Sinatra recently denied defense bids to try the two men separately, and as of now, the two are scheduled to be tried together next month in U.S. District Court in Buffalo. The prosecution anticipates its case will take six to eight weeks.
Tripi noted at last week's hearing that he asked Harrington about his health in October, when Harrington asked for a co-counsel in an unrelated narcotics case. Tripi said he expressed concerned to Harrington that he would withdraw from the Bongiovanni case on the eve of the trial.
"Mr. Harrington looked me in the eye and said, 'I won't do that to you,' " Tripi said.
"The government has complied with every time deadline, filed all submissions," Tripi told the judge. "We are ready to go. Needless to say, for the court and government, it's a herculean task to get this operation on the rails, get the momentum moving, get all the subpoenas issued and everything done."
Lawyer denies gamesmanship
During last week's hearing, Harrington acknowledged to the judge that "I probably should have come to the court sooner and asked for a second counsel."
Other lawyers in his firm who previously helped him prepare Bongiovanni's defense have left the firm and he has not been able to find replacements, Harrington told the judge.
Harrington said he is disappointed in Tripi's "ad hominem attacks on me."
"That's not my reputation," Harrington said.
When Tripi approached him earlier about his health, "there was nothing wrong with me," Harrington said. "I wasn't feeling any symptoms. That's a different situation now."
At his age, "things can happen very quickly," Harrington said.
Harrington said he would abide by what Sinatra rules, "but I think it's a precarious position, certainly for me, if what my cardiologist says is true.
"It may be that my situation clears up next week," Harrington said at the hearing. "I don't know. Maybe it doesn't. Maybe it gets worse."
Sinatra said he talked to two other judges in the federal courthouse after learning that Harrington sought a reduced role in the defense.
"I had the same question: Is there a gamesmanship angle here?" Sinatra said at the hearing.
"And I talked to two of my colleagues here, and based on what they told me, I've got to take Mr. Harrington at his word," Sinatra said.
For now, the court's protective order restricting witness identifications remains in place. Sinatra has scheduled a hearing for Wednesday regarding the protective order and the potential appointment of an additional counsel for Bongiovanni.
At last week's hearing, Sinatra indicated to both defendants' lawyers his preference to find a new lawyer who can delve into the case immediately.
"We have a defendant in custody, and delay is nobody's friend," Sinatra said.
