Nagin can’t present evidence of ‘good deeds’ at his trial, judge rules

Former New Orleans Mayor Ray Nagin will be prohibited from offering evidence of his “good deeds” in office during his upcoming trial on charges he took bribes as part of a kickback scheme, a federal judge ruled Friday.

As is their common practice, federal prosecutors last month asked U.S. District Court Judge Ginger Berrigan to bar the former mayor from touting any efforts to help the people of New Orleans as part of his defense at a trial scheduled to start Oct. 28. Nagin is accused of taking $200,000 in cash from city contractors, along with other gifts.

“Even if Mayor Nagin could, for example, show that, on some occasion, he ‘helped’ constituents rather (than) commit crimes such as conspiracy, bribery, deprivation of honest services, money laundering, and filing false tax returns, these alleged ‘good deeds’ would not be probative,” Assistant U.S. Attorney Matthew Coman wrote.

Nagin’s attorney, Robert Jenkins, challenged the assertion that the former mayor’s performance in office during his two terms isn’t relevant in the criminal trial. In a response, Jenkins wrote that Nagin needs to be allowed to present evidence to a jury that “he not only provided honest services to the citizens of New Orleans (contrary to the government’s assertions), but acted properly in doing so.”

Berrigan mostly sided with the prosecution. In her order, the judge found that general evidence as to Nagin’s performance of legitimate services to the community as mayor will be barred from the trial.

She left the door open, however, for the defense to offer evidence to provide “context” to the accusations against him.

Nagin also may be allowed to present evidence related to his character, although Jenkins needs to file a motion about this evidence for her consideration, the judge wrote.

As part of the pretrial order, Berrigan also agreed with prosecutors to exclude any mention at the trial of the potential sentence Nagin would face if convicted.

Prosecutors had also asked Berrigan to ban any defense claims during the trial about possibly malevolent motives on the part of prosecutors or suggestions that Nagin is a victim of prosecutorial misconduct. In his response, Jenkins argued that misconduct within the U.S. attorney’s office might be relevant, saying that is why the defense has been trying to get a copy of a report on an investigation into inappropriate anonymous online commenting by former prosecutors on a local news website.

Berrigan has so far declined to halt the trial until that report, currently under seal in another federal case, is made public.

She wrote in her order that any reference at the trial to prosecutors’ motives or their alleged misconduct must first be cleared by the presiding judge.

The defense has not filed any motion to make reference to that kind of evidence, she noted.

In a separate order, Berrigan decided that Jenkins will be allowed to challenge the authenticity of business documents that the government plans to introduce. Prosecutors had sought to introduce various documents, such as records of Nagin’s and his sons’ bank accounts, without having to call witnesses to verify that the records are authentic.

Jenkins objected to that request.

But Berrigan made clear that if Nagin follows through with forcing the government to present these witnesses, Jenkins must question them.

“The court will allow the defendant a full opportunity to defend himself and, at this time, will allow that defense to include the time-consuming cross-examination of various record custodians and a representative of a clerk of court to challenge the reliability of business and court records,” Berrigan wrote.

“However, the court will not allow the defendant to decide at trial that these witnesses and this cross-examination are no longer necessary, thereby leaving the jury with the false impression that the government is unnecessarily calling these witnesses or that it is the government, and not the defendant, who chose to dedicate trial time to the cross-examination of these witnesses.”