Verdict out on Whether Legal Team Gave Good Advice in Mark Foley E-Mail Case
By Rebecca Riddick
Daily Business Review [Florida]
November 3, 2006
In David Roth and Gerald Richman, legal observers agree that disgraced former congressman Mark Foley has retained two of the most capable lawyers in Palm Beach County, Fla., to guide him through an obstacle course of possible criminal and civil liability that may arise from his conduct with young congressional pages.
But at the same time, other South Florida attorneys who earn their livings trying to shield clients from jail terms and financial penalties wonder whether Foley and his advisers made the right choice by going public with the news that the former lawmaker is an alcoholic who was abused as a child.
While Foley remains secluded in an alcohol treatment center in Arizona, federal and state are continuing investigations into possible criminal conduct.
Investigators are looking into how far communications between the former Republican lawmaker and teenage former congressional pages proceeded and whether Foley solicited sexual contact with any minors, regardless of whether actual physical contact was made.
Alicia Valle, a spokeswoman for the U.S. Attorney's Office for the Southern District of Florida, said she could not confirm or deny any pending investigation. Another knowledgeable source, however, confirmed that there is an ongoing federal criminal investigation into Foley's conduct.
Heather Smith, a spokeswoman for the Florida Department of Law Enforcement, said that in addition to its own investigation, FDLE is aiding the FBI's probe.
Foley's civil attorney, Gerald Richman, a partner at Richman Greer Weil Brumbaugh Mirabito & Christensen in West Palm Beach, said he could not comment on the case. Foley's criminal defense attorney, Roth of Roth & Duncan in West Palm Beach, did not return calls for comment.
Prosecutors could consider bringing a variety of federal and state charges against Foley, depending on what eventually is discovered in Foley's e-mails and instant messages. One possible charge is Internet solicitation of a minor.
The Foley-co-sponsored Adam Walsh Child Protection and Safety Act of 2006 will clearly come into play in his case, said Neal Sonnett, a Miami criminal defense attorney. The law increased penalties for soliciting sex from children under age 18 via the Internet and other means.
But Sonnett, a past president of the National Association of Criminal Defense Lawyers, said he wasn't sure that any Foley actions that have been made public so far would be a prosecutable offense.
One issue prosecutors may come up against is that some of the former pages Foley contacted were not minors, or were of the age of consent. That may be the case for former page Jordan Edmund, now 21, with whom Foley exchanged raunchy instant messages when Edmund was either 17 and 18.
Adding to the confusion is the fact that different federal laws have different ages of consent. Some deem a minor to be under 16, while others, including Internet solicitation laws, make 18 the age of consent.
QUESTIONABLE LEGAL MOVES
South Florida legal experts say Foley has made a series of questionable legal and public relations choices since the news media first reported in September on his e-mails and instant messages to former pages that were either sexually suggestive or sexually explicit.
It has not been confirmed whether Foley ever had actual sexual contact with any of the recipients of his e-mails or instant messages. Such contact is not necessarily needed for prosecution. It is against both federal and state law to solicit a minor for sex, regardless of whether physical contact was made.
Some experts question the decision by Foley and his lawyers to immediately announce excuses and mitigating factors for Foley's behavior. Others question the wisdom of hiring a prominent criminal defense lawyer as his mouthpiece.
Lilly Ann Sanchez, a criminal defense lawyer at Fowler White Burnett in Miami, speculated on why Richman seems to have replaced Roth as Foley's public spokesman. Roth handled the news media in the first few days, but later statements came from Richman. Having criminal defense lawyer Roth speak for Foley heightened the impression that Foley faced criminal liability, Sanchez said.
Both Roth and Richman have high profiles in the South Florida legal community. Richman headed Palm Beach Circuit Court judicial candidate Jerald Beer's successful defense that he did not violate the state's "resign to run" law. Richman was a Democratic candidate for the U.S. House of Representatives from Miami in 1989 before setting up shop in West Palm Beach.
Roth has represented a who's who of high profile Palm Beach County criminal defendants. Current clients include multi-millionaire Fred Keller, who is accused of murdering his ex-wife, and one of the Delray Beach Catholic priests accused of embezzling more than $8 million from their diocese.
'DEFENSE DU JOUR'
On Oct. 3, shortly after the scandal broke, Roth stood before a news media throng and said Foley was an alcoholic, had been molested as a teenager by a Catholic priest and is gay.
Roth announced that Foley had entered a rehabilitation program for alcoholics and would not be publicly available until the end of the program. Some of Foley's associates have said they saw no evidence that Foley had a drinking problem.
Then, on Oct. 18, Richman announced that Foley had been sexually abused by a priest when he was 13. Subsequent statements by the accused priest, who now lives in Malta, corroborated that.
Foley is one of a number of prominent public figures who recently have blamed alcoholism, drug abuse, child sexual abuse or other factors for their misconduct. They include conservative radio host Rush Limbaugh, Republican state Rep. Ralph Arza of Miami, convicted Republican congressman Bob Ney, Democratic congressman Patrick Kennedy and movie star Mel Gibson.
According to the Palm Beach Post, Foley has extended his stay at Arizona's Sierra Tucson past the initial 30 days.
Like Foley, Limbaugh quickly checked himself into a rehabilitation program in 2003 after his alleged narcotics activities were reported. Arza announced last month that he has drinking and anger management problems after he was caught leaving abusive phone messages and using a racial slur. He said he would start counseling.
Ney, who recently pleaded guilty to corruption charges in connection with the Jack Abramoff congressional lobbying scandal, also checked himself into alcohol rehab prior to formally entering his plea. Kennedy checked himself into alcohol rehab after he crashed his car into a barrier at the Capitol.
Experts say the goal of such moves generally is to win public sympathy and persuade law enforcement authorities not to file criminal charges.
Sanchez called checking into rehab the "defense du jour."
Former assistant U.S. Attorney Bruce Udolf, now a partner at Berger Singerman in Fort Lauderdale, said it remains to be seen how successful it is as a legal strategy. "If they're trying to derail an indictment," he said, "time will tell whether it's effective or not."
Nevertheless, Milton Hirsch, a veteran criminal defense attorney in Miami, said Foley could face both federal and state charges relating to using the Internet to solicit sex with minors.
Hirsch said federal authorities are under political pressure to pursue the Foley case, particularly given all the tough political rhetoric during this election season about "protecting our children."
If Foley did solicit one or more minors through Internet communications, he will face an uphill battle to defend himself given the trail of e-mails and instant messages, Hirsch predicted. "You can't cross-examine e-mails," he said.
That may be why Foley's attorneys are waging an aggressive public relations campaign before the whole story is out.
Sanchez noted that alcoholism and childhood sexual abuse are not defenses or mitigating factors in a case of statutory rape or solicitation of a minor. But those factors could reduce public pressure on prosecutors for tough criminal prosecution.
Udolf said that from a public relations point of view, the strategy is already a failure because it has not elicited much sympathy from the public.
In the end, however, the decision to prosecute will come down to the legal issues, not Foley's alleged alcoholism or past sexual abuse.
Miami criminal defense attorney Ed Shohat of Bierman Shohat Loewy & Pizzi agreed that he did not see Foley's attorneys' public announcements as necessarily setting up Foley's legal defenses. He speculated that the attorneys figured the information would get out eventually, and Foley may have wanted to release the information on his own terms.
Alternatively, Shohat said, the release of the information was part of Foley's rehabilitation process, as recommended by his doctors. Experts say keeping secrets, such as alcoholism, childhood sexual abuse or homosexuality, can lead to self-destructive behavior.
Shohat said he wasn't sure, based on what he has seen, that there is any statutory basis under Florida law for prosecuting Foley. It is not a violation of state law, he said, to have lewd conversations with minors. The Florida Legislature might want to consider tightening the law in this area, he said.
Unless evidence turns up on Foley's computer or in his online communications of child pornography or actual sexual contact with a minor, Shohat said he doubts the feds will charge Foley.
"What we've seen is certainly outrageous," he said. "Whether those [actions] rise to the level of a prosecutable crime is yet to be seen."
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