Family Waits Two Years For Evidence

Judge Cites Speedy Trial Law In Dismissing Indictment

Last updated Saturday, June 28, 2008 5:59 PM CDT in News

By Doug Thompson
The Morning News

A federal judge dismissed the case on April 10, citing an unconstitutional violation of the right to a speedy trial, court records show.

The U.S. attorney in charge when the indictment was filed is now the subject of a Justice Department request for a grand jury investigation unrelated to the Tumey case, according to Associated Press and other news outlets.

Tumey and her family were left to pick up the pieces.

"Six figures," Tumey said when asked how much the legal bills were. As for lost business, she said: "I never really could tell you a dollar amount because this happened and then the economy went into a recession, but the reputation of the company certainly suffered."

Political Rumblings

U.S. attorney's office spokesmen in Kansas City and Atlanta said they were legally barred from discussing the particulars of a criminal case. Despite the dismissal, it is still possible for the case to be filed again as late as Oct. 10 under court procedure. The defendants would not be exempt under the constitutional provision barring double jeopardy because, technically, they never went to trial, an attorney for the defense said.

The 52-count indictment out of Kansas City, Mo., came almost three years after the company had worked on barracks at Fort Leonard Wood, Mo.

Tumey was running for the state Legislature when the indictment was issued. She had also been chairwoman of the Benton County Democratic Party and a longtime advisor and contributor to Democratic causes in western Arkansas.

For example, she was active in the congressional campaign of Jo Carson of Fort Smith in 2001. She had also unsuccessfully sued her Republican opponent, Tim Hutchinson, in a 2004 bid for the state Legislature. The suit claimed Hutchinson had not lived in the House district he sought to represent. She was running against Republican opponent Aaron Burkes in 2006.

The June 27, 2006, indictment was issued while Bradley Schlozman was U.S. attorney for the Western District of Missouri. Schlozman resigned from the Justice Department a year ago this month, two months after a grilling from the Senate Judiciary Committee over political appointments of U.S. attorneys. The committee also asked Schlozman about his indictment of a voter registration group just before the 2006 general election in Missouri.

Schlozman oversaw appointments of U.S. attorneys while working with the Justice Department's Civil Rights Division before going to the Kansas City appointment. He was the first U.S. attorney appointed under a provision of the federal Patriot Act, which allowed appointment without Senate confirmation. He now works for the Hinkle Elkouri Law Firm of Wichita, Kan.

Schlozman did not comment for this report, but first assistant U.S. Attorney Matt Whitworth of Kansas City responded on Schlozman's behalf Friday.

"Mr. Schlozman asked me to call because he's no longer with the U.S. attorney's office and couldn't possibly comment on what happened to this case after he left," Whitworth said. Whitworth said he was not prepared to discuss the case in detail. The first assistant U.S. attorney who handled the case has retired and his successor on the case recently suffered a near-fatal accident and is not available for comment or consultation, Whitworth said: "He only got out of the hospital today."

"We would have pursued the case if we could have," Whitworth said of the dismissal. "Obviously, this did not happen like we would want it to happen."

Richard Monroe of Springfield, Mo., was the assistant U.S. attorney handling the Managed Subcontractors case until his retirement in February. He is now a Democratic candidate for the U.S. House of Representatives. Monroe declined to discuss the particulars in the case and the cause for the delay in turning over documents, but he did comment when asked if partisan politics were involved.

"No, actually," Monroe said. An attorney in the case tried to make that argument, but he was "definitely barking up the wrong tree," he said.

"There are other cases you might want to look up regarding that, but not that one," he said.

Asked to name other cases, Monroe declined.

The Whole Piece

Managed Subcontractors was awarded a contract for framing, hanging wall board, finishing and related trades for a subcontractor working on the construction of the Basic Combat Training Complex at Fort Leonard Wood. The U.S. Army Corps of Engineers administered the contract.

Under the federal Davis Bacon Act, wages paid to workers were required to meet or exceed the prevailing wage rate, according to the Justice Department. The company's work on the contract was from Nov. 11, 2002, to July 23, 2003.

The indictment alleged MSI made an unlawful deduction of 10 percent from its employees' gross earnings for worker's compensation insurance. It also alleged the workers were not covered by a policy of worker's compensation insurance.

The company's attorney filed a request for "discovery," or evidence in federal hands that could bolster the defendant's case.

"They did provide substantial discovery. I want to be clear about that," said Nancy Price of Springfield, Mo. Price was defense attorney for Colby. Price filed the decisive brief that lead to the case's dismissal.

The discovery documents disclosed in Missouri included documents obtained in Atlanta from the U.S. attorney's office there. It was obvious that what was turned over from Atlanta were pieces of a much larger whole, Price said. The defense insisted on seeing the rest of it, and the court agreed.

"Basically, just silence," Price said of the response from the U.S. attorney's office in Kansas City to the court's motion to compel further discovery. "It was kind of deafening," she said.

What did the documents contain, and why did any case in Atlanta matter to an indictment is Missouri?

"We never really got an answer," Price said.

The case was not dismissed because of failure to comply with discovery, Price said. It was dismissed because of the lack of a speedy trial.

"The speedy trial provision exists so that the government can't charge somebody with a crime and leave the issue open for years, hanging over them," Price said. "That's exactly what happened here."

"Even if there was political motives in filing it, there were none in prosecuting it," Price said of the MSI case. "Monroe is a zealous prosecutor and a hard-nosed one. We've battled many, many times, but he's honorable and I've never suspected him of any bad or questionable motives."

Dismissal Granted

The request for discovery finally resulted in an Oct. 22, 2007, court order to the U.S. attorney's office to comply, court records show. The office failed to meet the deadline. It continued to miss the deadline up to a Dec. 20 status conference on the case. The office asked for and got an additional 30 days. Then, on Jan. 25, the U.S. attorney's staff informed the court it could not provide the evidence at that time because much of the same evidence was being used in another investigation in Atlanta. This was the place of business for a smaller subcontractor on the Fort Leonard Wood project.

"The United States has clearly been in violation of the court order in this matter," James C. England, chief U.S. magistrate for the district, said in a ruling issued Feb. 4. However, he went on to argue the defendant waived her right to a speedy trial by asking for a delay in another matter.

That order drew an immediate protest from Price, records show. They argued all parties agreed upon earlier delay of a trial from November 2006 to July 2007. The continued delay was not agreed upon, but forced by the government's failure to comply with discovery, Price argued. U.S. District Court Judge Gary A. Fenner agreed and dismissed the case April 10. The judge issued no comments from the bench, according to the court clerk in Kansas City.

"I have no idea whether this case was politically motivated," Price said. "That's one of the things I was hoping to find out from the documents in Atlanta."

Price would have liked an explanation, she said, but her responsibility was to her client. She had the constitutional high ground to get her client's case dismissed and she took it, Price said.

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