Today, nearly two months after lawyers for the U.S. Attorney and lawyers for Sundquist-era contractor Albert Ganier III argued in Cincinnati before the U.S. Court of Appeals for the 6th Circuit, the Cincinnati court produced an opinion that puts potentially incriminating evidence submitted by the U.S. Attorney back on the table, subject to further review by federal Judge Karl S. Forester.
Court of Appeals Circuit Judge Karen Moore wrote in the opinion released today that while the U.S. Attorney should have provided Ganier's team a summary of the disputed reports and testimony, Judge Forester's district court had in excluding the material 15 months ago "abused its discretion" and had not considered remedies less severe than exclusion.
Assistant U.S. Attorney for the Middle District Eli Richardson told NashvillePost.com this afternoon that his office is prepared to "prosecute the trial, consistent with the 6th Circuit's opinion," issued today.
Following a federal investigation that began more than four years ago, Ganier was charged in 2004 with four counts of obstruction of justice. He has pleaded not guilty. Federal attorneys say Ganier destroyed or attempted to destroy pertinent computer data at his company, Education Networks of America, while the firm was being investigated over how it obtained a state contract to provide Internet services to schools.
In August 2005, as reported by NashvillePost.com, Judge Forester granted the continuance of Ganier's trial, after hearing opposing views from federal attorneys and from Ganier's defense team, lead by Nashville attorney Aubrey Harwell. Harwell and co-counsel Tom Dundon argued the new federal information should have been provided in advance to those defending Ganier.
Assistant U.S. Attorney Richardson countered that the data was previously available to both parties and had been handled properly, but had been subjected to further analysis by the U.S. Attorney's computer forensic investigator that revealed potentially incriminating information.
Prior to departing ENA a year ago, Ganier was the company's CEO and chairman of the board. Among other shareholders was John Stamps, who at one point also lobbied for ENA through his company, Privatization Strategies, and who was later convicted and sentenced to two years in prison for making false statements during an investigation into state contracts in which he was involved during the Sundquist Administration.
A brief filed with the 6th Circuit by Richardson's team prior to September arguments in Cincinnati revealed that e-mails on the computer included evidence of inappropriate and possibly illegal relationships not only with Stamps, but also with then-Sundquist Chief of Staff Alex Fischer, who is now the Oak Ridge National Laboratory's director of technology transfer and economic development. Also named was Jackie Shrago, who worked within the state's contract-letting process for the internet services in question, and who is currently the Nashville-based senior vice president of Discovery Education.
A call placed to Ganier defense attorney Dundon this afternoon by NashvillePost.com has not yet been returned. Dundon's assistant said he was in a deposition.
Judge Forester, of the Eastern District of Kentucky, is presiding in this matter as a result of seven federal judges for the Middle District of Tennessee having recused themselves from the matter. The judges did not make public reasons for their recusals.