Jim Dey: Judge has decisions to make in Schock case

Jim Dey: Judge has decisions to make in Schock case

Former U.S. Rep. Aaron Schock engaged in a running battle with federal prosecutors over their investigative tactics even before his 2016 indictment. Since then, Schock and his lawyers have kept up their campaign, filing a flurry of motions asking for dismissal of the criminal indictment against him for a variety of reasons related to prosecutorial misconduct.

At the same time, the government has blithely dismissed Schock's claims, characterizing them as a futile "quest, with all of its attendant inflammatory rhetoric."

Assistant U.S. Attorney Tim Bass, who is overseeing the case, argues that "Schock has engaged in an increasingly aggressive search for some government misconduct claim, initially to forestall the indictment, and now to avoid the trial on the merits."

Schock's stack of claims now sit on the desk of U.S. Judge Colin Bruce. They include charges that authorities improperly inquired into his personal life, made false and unflattering statements about him in an effort to shape the attitudes of grand jury witnesses and withheld exculpatory material from the defense.

They also include another in which Schock contends prosecutors misbehaved by commenting about Schock's failure to testify before the grand jury, an infringement of the constitutional right to remain silent.

Prosecutors denied that, too.

"The government unequivocally submits to this court that this allegation is false. It never happened," Bass said in a court filing earlier this year.

But a more recent filing by the government, this time under the signature of acting U.S. Attorney Patrick Hansen, included a correction. The government's 33-page filing conceded that it not only happened, but happened repeatedly — on 11 occasions before two separate grand juries.

George Terwilliger, a Washington, D.C., lawyer and former high-ranking official in the U.S. Justice Department, argued the alleged misconduct is part of a pattern of abuse that began when authorities targeted Schock for indictment in spring 2015.

"The U.S. attorney's office, in a pleading signed by the U.S. attorney personally, has admitted it made misrepresentations to the court about an important matter involving Mr. Schock's constitutional rights. This admission that the court was misled should have consequences," Terwilliger said.

Schock, 36, and once one of the state's up-and-coming politicians, was indicted in November 2016 on charges stemming from the alleged misuse of more than $100,000 in both public and campaign funds. He's tentatively scheduled to go to trial in January at the U.S. Courthouse in Urbana, although the trial already has been delayed once and may be again.

A Peoria resident, Schock resigned from the U.S. House of Representatives in March 2015, just five months after his election to a third term. His resignation followed a series of news media reports that questioned, among other things, the validity of mileage reimbursement claims submitted on Schock's behalf.

The government conducted a lengthy investigation that involved two separate grand juries that heard testimony from roughly 50 witnesses and generated 5,000 pages of witness testimony.

Schock asked for grand jury materials that contain "any discussion or instruction regarding Mr. Schock's testifying or his decision not to testify."

In correcting the Bass filing on the issue, prosecutor Hansen documented each of the 11 instances in which prosecutors made reference to Schock's failure to testify before the grand jury. While acknowledging the statements, the government denied that Schock suffered any prejudice or that Judge Bruce should take any corrective action.

"On 11 occasions, seven times before the first grand jury and four times before the second grand jury — government counsel commented on or addressed Mr. Schock's testifying or decision not to testify before the grand jury, typically in response to inquiries by one or more grand jurors," Hanson wrote.

In making his argument, Hansen noted that prosecutors' comments were made within the context of Schock's legal right not to testify without grand jurors drawing any negative inferences from his silence.

For instance, on March 24, 2016, Bass told grand jurors that he had invited Schock to testify "and he declined."

"Which obviously is absolutely his right and it cannot be used against him in any way," Bass said.

Again on Aug. 3, 2016, Bass responded to a question about an interview request Schock had "declined" — "which was his absolute right."

But the broader context of several prosecutorial statements is that it was not just Schock's right not to testify but a sound decision not to do so because any answers he gave would be incriminating.

For example, on Sept. 7, 2016, Bass discussed the kinds of questions he would pose to Schock before the grand jury if he appeared. "I would ask the question, you submitted an email to your assistant and claimed 32,700 official miles. Your vehicle was only driven this amount of miles. How do you reconcile that?. ... This would be the evidence in our case in chief just to show the inconsistency," Bass said.

He also added that Schock has an "absolute right not to testify" but "if he choose(s) to testify, this would be an obvious question to ask."

U.S. Attorney Hansen also got into the act when he made an extended statement to the grand jury that he acknowledged was "possibly inartful or imprudent" but not violative of Schock's right to remain silent.

"We have invited Aaron Schock to come in on more than one occasion, and we'll continue to extend that invitation. He has respectfully declined," Hansen said.

Then he explained that any defense lawyer who allowed his client to testify before a grand jury "is committing malpractice" because "there is nothing good that can happen to them in this room."

"Because there will be a lot of questions being asked, and they will be difficult questions and his attorney isn't here and I am," Hansen said.

However inartful or candid Hansen's words, he contended that they are "not sufficient by themselves to dismiss an indictment."

"The court must also find sufficient prejudice to warrant a dismissal. Here, neither error nor prejudice exists," he said.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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Zinger wrote on September 10, 2017 at 5:09 pm

Ha!  So the lead prosecutor lied to the Judge and nothing happens?

Not a big fan of Shock but these charges seem petty. 

I think we know what Mr Bass would be saying if Shock lied to the court or grand jury.  

Now Bass claims he never asked the "sex" questions or where the kid slept?!  Right, I bet those witnesses just made it up.  

Give me a break! 

One rule book for citizens and another for "the justice department". 

 

 

EdRyan wrote on September 11, 2017 at 10:09 am

Guilty of bad taste in interior design and legislating as a Republican while rumored to be gay.  They should investigate all the rest of them and see what sort of questionable spending they find.