Fumo prosecutors fire back at judge

The prosecutors of former State Sen. Vincent J. Fumo fired back at the federal judge in the case Saturday, saying that his criticism of them was "fundamentally wrong and markedly unfair."

In a rare weekend court filing, Assistant U.S. Attorneys John J. Pease and Robert A. Zauzmer said U.S. District Judge Ronald L. Buckwalter had improperly chastised them for "overcharging" Fumo, who was convicted of 137 criminal counts.

"The number of charges represents not 'overcharging,' but the fact that the defendants engaged in a literal crime spree for more than 15 years, engaging in dozens of separate and lengthy schemes, which are carefully detailed in a minimal number of counts," they wrote. The 13-page legal brief was also signed by their boss, U.S. Attorney Zane D. Memeger.

Pease and Zauzmer said that the depth and complexity of Fumo's wrongdoing and the need to construct a bulletproof indictment required the triple-digit counts. They called upon Buckwalter to withdraw his criticism of them at a Wednesday resentencing hearing for Fumo's codefendant, former Senate aide Ruth Arnao.

On Thursday, Buckwalter criticized the sheer size of Fumo's indictment before he resentenced the former Democratic power to 61 months in prison, six more months than the controversial 55-month sentence he gave Fumo in 2009.

Buckwalter was forced to resentence Fumo after Pease and Zauzmer won an appeals ruling that the judge made numerous legal errors in imposing his original sentence.

Peter Goldberger, a member of Fumo's defense team, declined comment Saturday beyond noting a remark by Memeger suggesting the government will not appeal again.

"I agree with the U.S. attorney, Mr. Memeger, when he commented on Thursday that all litigation reaches a point where it needs to come to an end," Goldberger said.

In court Thursday, Buckwalter complained that the public had an exaggerated sense of Fumo's wrongdoing simply because of the sheer number of counts he faced.

The judge said Fumo had engaged in "five main crimes" - defrauding the state Senate, a South Philadelphia nonprofit organization, and a seaport museum; tax offenses; and obstruction of justice.

Buckwalter said the official manual for federal prosecutors advises them to bring "as few charges as necessary to ensure that justice is done."

The judge added:

"While the nature of the offenses committed by the defendant exhibit his greed and flagrant disregard for taxpayer money, the splintering of such offenses into 141 separate counts has created the precise result warned against by the U.S. Attorney's Manual.

"It not only complicated and prolonged the trial, it constituted an excessive and potentially - and I emphasize the word potentially - unfair exercise of power."

In their filing Saturday, Pease and Zauzmer said they had followed the letter and spirit of the manual. They said that the judge's "unjust accusation" had falsely suggested they had tried to stoke public opinion against Fumo by overcharging him.

The judge's criticism, they said, "wrongly maligns the reputations of the dedicated public employees who pursued this successful prosecution."

They said "the government was actually restrained in its charging," but still needed to bring multiple counts to construct a solid case.

For example, they said, to prove that a key computer technician repeatedly did personal and political tasks for Fumo on state time, they brought charges covering acts over a three-year period. That way, they said, they could nail down that the workers' services were "continually misused" - and shut the door on Fumo's argument that this crime amounted to an "isolated or occasional misdeed."

Arnao, 55, was sentenced to serve a year and a day in prison. She has completed that time. Unlike Fumo, she has acknowledged guilt and expressed remorse.

Her attorney, Patrick Egan, could not be reached for comment.