Fortenberry’s trial attorney fined $500 over comments at trial

OMAHA, Neb. (WOWT) - A lawyer for former Nebraska Congressman Jeff Fortenberry was sanctioned $500 for his behavior at trial.

Handing down his decision on Thursday, U.S. District Court Judge Stanley Blumenfeld Jr. ruled that Los Angeles attorney John Littrell “acted in bad faith,” according to court documents.

Before the Fortenberry jury in March, Littrell gave closing arguments in the trial over whether the Congressman had lied to the FBI over illegal campaign contributions. Fortenberry did not testify — which is his constitutional right — and the judge told the jury that they were not to read anything into his decision not to do so.

But defense attorney Littrell told the jury that in a way, Fortenberry really did testify because they heard his voice through the audio recordings played during six days of trial and that his client wouldn’t have added anything if he did testify because his memory wasn’t any better that day.

That’s when the government objected, asking the attorney to explain himself in short order.

“The court confronted Littrell about the impropriety of his commenting on Fortenberry’s decision not to testify. In response, Littrell’s made clear that he had heard the court’s admonishment to the jury and made a calculated decision to address Fortenberry’s not testifying, which he believed he ‘had to address,’ ” the recent documents state.

Court documents include an exchange between the judge and Littrell that occurred after the jury had been sent to deliberate on Fortenberry’s case. The included conversation concluded with an apology from Littrell:

“I certainly wasn’t trying to be unfair. And, you know, your Honor, we do the best we can. I will tell you this, having done this for a long time: Jurors have a real problem with that, and I think that’s why the Court emphasized that instruction is because jurors really struggle with that and so I feel some obligation to say something about it,” he said, according to the records. “But if I’ve gone too far, and it sounds like the Court feels I have, I certainly apologize. And I guess I would acknowledge that the risk falls on the defense when we do that. I don’t — I felt it was a fair comment on the issue and on the instruction on the issue, but certainly reasonable minds can disagree about that.”

Nevertheless, the court filed an “order to show cause” against Littrell, who then hired his own attorney and filed a response,” asking the court to vacate the order, according to court documents.

But the judge objected to the attorney’s main citation of U.S. v. Robinson, saying the attorney had “misread” it.

“In that case, defense counsel argued in closing that the government had not allowed the defendant to explain his side of the story,” the judge said in his response.

Littrell also cited Griffin v. California, arguing that “while prosecutors are prohibited from commenting on a defendant’s choice not to testify, it is not misconduct for defense counsel to do so.”

But the judge cited a case where the Supreme Court had reversed an appeals court decision on the matter.

“The court of appeals held that the defendant had been denied a fair trial because Griffin prohibited the prosecutor from making any direct reference to the fact that the defendant had not testified,” Blumenfeld states in the court documents. “The Supreme Court reversed, finding that the appellate court had read Griffin too broadly and holding that “the prosecutor’s statement that respondent could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon respondent’s Fifth Amendment rights.”

Littrell is required to pay the fine by April 17.

Fortenberry has several other attorneys, one of who filed an appeal on his case. The former Congressman believes he was a victim of a government setup. For the conviction, he could have gotten 15 years in federal prison but the same judge sentenced him to probation instead.