Peel's trial delayed after Herndon recusal

Ann Knef Jun. 12, 2006, 10:54am

Gary Peel

Attorney Gary Peel's trial on obstruction of justice, bankruptcy fraud and child pornography charges --set to begin today -- has been canceled due to the case being reassigned to a different judge.

United States District Judge David Herndon, a former managing partner of Lakin, Herndon & Peel while Peel was an associate there between 1982 and 1985, recused himself from the matter May 18.

Peel's case was reassigned to U.S. District William D. Stiehl.

Later this month, Stiehl will rule on Peel's request for a separate trial on two counts of child pornography. Peel is arguing that his right to a fair trail will be prejudiced if he takes the Fifth Amendment on allegations he possessed a nude photo of his former wife's younger sister who was a minor at the time it was taken. Peel, however, wants to testify on charges of obstruction and fraud.

In the motion to sever counts, Peel's public defender wrote that a jury would not be able to "properly weigh" evidence without also considering "highly prejudicial allegations of fraud."

Peel, a former Lakin Law Firm class action attorney, is charged in a four-count indictment. Counts I and II allege bankruptcy fraud and obstruction of justice in connection with his bankruptcy proceeding while counts III and IV allege possession of child pornography.

"Exposing the jury to the allegations of fraud and obstruction in Counts I and II will infect the jury's ability to fairly weigh the evidence in Counts III and IV," Peel's federal public defender Stephen Williams wrote.

The U.S. Attorney filed a motion in opposition to Peel's request for separate trials, stating that Peel has not cited a sufficient risk of prejudice to warrant severance.

"The defendant has merely suggested that 'at this time' he wishes to testify as to the fraud and obstruction charges and remain silent as to the child pornography charges," wrote Randy Massey, acting U.S. Attorney.

"This is inadequate. Severance is not mandatory every time a defendant wishes to testify to one charge and remain silent about another. If that were the law, a court would be divested of all control over the matter of severance and the choice would be entrusted to the defendant."

Williams wrote, that if tried separately, Peel would testify in his own defense concerning the allegations of fraud and obstruction of justice.

"Mr. Peel requests this court exercise its discretion in granting the requested severance due to the prejudice he will suffer from the government's allegations in counts I and II when attempting to fully and completely defend himself on counts III and IV," wrote Williams.

Massey wrote, "Gary Peel has failed to explain (which suggests that he can not explain) how the Government would require his own testimony to obtain a conviction on the Possession of Child Pornography charges.

"Even if the defendant were to later make a convincing showing of his need to testify on some counts and remain silent on others, he would still not meet the burden of demonstrating prejudice necessary to require severance. As set forth herein, the evidence of fraud and obstruction is intricately related to the possession of child pornography, and vice-versa. Even in trials on severed counts, the two types of evidence would be cross-admissible."

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