BUFFALO, N.Y. — In a rarely seen move, a federal judge removed three Assistant U.S. Attorneys from the prosecution team in a case involving Pharaoh's Strip Club owner Peter Gerace.
The sanction imposed by Magistrate Jeremiah McCarthy came about as a result of his determination that the prosecutors intentionally violated a court-ordered deadline to turn over materials to defense.
The ruling appears to effect only one of the three cases for which Gerace has been indicted, where he and more than half dozen other defendants stand charged with tampering with and intimidating witnesses, including one whom they are accused of arranging a drug overdose death.
The case will still move forward but unless she can successfully appeal McCarthy's ruling, U.S. Attorney for Western New York Trini Ross will have to assign other of her assistants to bring it to trial.
Magistrate McCarthy had set a deadline for prosecutors to turn over discovery material to the defense, which they missed, insisting they needed a protective order to restrict who'd be privy to their evidence and witnesses, to protect those witnesses from individuals who they allege have ties to the mafia and motorcycle gangs and could harm them.
In arguing against sanctions, Assistant U.S. Attorney Tiffany Lee, Chief of the Appeals Bureau for the Western District admitted the conduct of her own colleagues in missing the deadline was "negligent" and amounted to a "regrettable failure."
However, she insisted it did not rise to misconduct or bad faith on their part.
"It was not done with intent to deceive or to be dishonest," Lee argued in court, before McCarthy then asked her, "How can the government argue it did not intentionally violate my order when it did?"
"That's not what happened," Lee said.
"Yes, it is," the judge said, "and I continue to believe the government acted in bad faith, and it pains me to say that."
McCarthy then ordered that assistant U.S. Attorneys Nicholas Cooper, Casey Chalbeck, and lead prosecutor Joseph Tripi to be removed from the case.
McCarthy stopped short of dismissing the indictment altogether, as had been moved for by lawyers for the defendants.
In court he indicated his belief that to do so would just be a waste of time, because he doubted such a ruling would stand the scrutiny of an appeals court, and reasoned that even if it did the government would just re-indict the defendants.