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Fumo's deleted e-mail at issue

As jury selection began, lawyers battled via briefs. Prosecutors want to explore the advice a previous attorney gave the senator.

Pennsylvania State Senator Vincent Fumo and his girlfriend, Carolyn Zinni , arrive at U.S. District Court on Monday. (ALEJANDRO A. ALVAREZ / PHILADELPHIA DAILY NEWS)
Pennsylvania State Senator Vincent Fumo and his girlfriend, Carolyn Zinni , arrive at U.S. District Court on Monday. (ALEJANDRO A. ALVAREZ / PHILADELPHIA DAILY NEWS)Read more

The long-awaited trial of State Sen. Vincent J. Fumo got under way yesterday, as lawyers engaged in a last-minute fight over a bid by the prosecution to explore advice given Fumo by his previous lawyer, Richard A. Sprague.

While prosecutors and Fumo's new lawyers began in a crowded courtroom the job of picking a jury, they dueled on paper about Sprague.

The dispute has to do with Fumo's attempt to defend himself against obstruction-of-justice charges. The government contends that Fumo orchestrated a cover-up by having his staff delete thousands of e-mails and cleanse data from BlackBerrys and computer servers.

In his defense, Fumo told the court in a filing Friday that the e-mails were destroyed after Sprague and another Philadelphia lawyer, Robert Scandone, each advised him that it was legal to delete the material.

This prompted the lead prosecutors, John J. Pease and Robert A. Zauzmer, on Saturday to subpoena Sprague's files about his representation of Fumo. Scandone has already testified to the grand jury that investigated Fumo.

Fumo's lawyers fired back yesterday. In a new motion, attorney Peter Goldberger said that the government had a right to explore Fumo's advice from Sprague and Scandone but that its subpoena was wildly invasive.

The obstruction charges are just part of the sweeping indictment brought against Fumo (D., Phila.) and a former senior aide, Ruth Arnao.

Fumo is also charged with $3.5 million in fraud, in which the grand jury said he illegally used state Senate staff as personal servants and political foot soldiers. He is also charged with extracting illegal personal benefits, ranging from power tools to yacht cruises, from a maritime museum and a South Philadelphia charity.

The statement by Fumo's new lawyers about Sprague's role appears to contradict what Sprague himself has said.

In a 2007 news conference, the day after Fumo was indicted, Sprague said Fumo had sought legal advice on deleting documents from another lawyer, "not me."

That advice was mistaken, Sprague has said. The other lawyer wrongly told Fumo that he could delete documents under an existing document-destruction policy as long as Fumo had himself not been subpoenaed, Sprague said.

Sprague did not name the other lawyer, but the reference appears to be to Scandone.

Under a 2002 change in federal law, people who have good cause to think they may be under investigation must stop destroying documents.

In a letter to Congress last year about the Fumo case, the Sprague firm also cited "the senator's reliance upon (albeit erroneous) legal advice" regarding the e-mails.

In the indictment, the government charges that Fumo orchestrated an aggressive effort to delete computer information staring in January 2004, after The Inquirer broke the news that he was under FBI investigation. He was not directly subpoenaed, however, until February 2005.

Mark B. Sheppard, a lawyer with Sprague's firm, said it would argue in its own filing that it should turn nothing over until U.S. District Judge William H. Yohn Jr. had resolved the fight between Fumo and the government.

Sheppard declined further comment. Scandone also declined comment yesterday.

In court yesterday, a jury pool of 217 men and women groaned and whistled when Yohn told them that the trial would last three months.

None of the 12 jurors who will decide Fumo's fate was selected yesterday. Instead, the members of the pool labored over a sheet of 49 questions ranging from whether they had an opinion of Fumo to whether evidence that included "profane and vulgar" language would bother them.