Prosecutors say Maggio withheld information, thus breaking plea deal | Arkansas Blog

Sunday, February 21, 2016

Prosecutors say Maggio withheld information, thus breaking plea deal

Posted By on Sun, Feb 21, 2016 at 2:44 PM

MIKE MAGGIO: Digging a deeper hole.
  • MIKE MAGGIO: Digging a deeper hole.
When former Conway Circuit Judge Mike Maggio attempted recently to withdraw his guilty plea on federal bribery charges — a plea the judge originally entered more than a year ago — and dumped his two defense attorneys in favor of new counsel, it prompted speculation about what exactly Maggio could be trying to accomplish.

In a response to Maggio's motion to withdraw his plea, federal prosecutors on Friday told U.S. District Judge Brian Miller that Maggio broke the terms of his plea agreement and is now trying to avoid the consequences.

On January 19, they said, Maggio failed a polygraph test (an addendum to the plea agreement stipulates that he submit to polygraph examinations if requested) regarding the extent of his contact with "Individual B" in the events surrounding his alleged corruption. It's widely assumed that Individual B is Gilbert Baker, a lobbyist and former state legislator who allegedly served as an intermediary between Maggio and "Individual A," widely assumed to be nursing home owner Michael Morton.

(Backstory, in brief: Federal prosecutors say Morton provided campaign contributions to Maggio, arranged via Baker, around the same time the judge massively reduced the financial compensation a jury had awarded to the family of a woman who died in a Morton-owned nursing home due to neglect. Neither Baker nor Morton have been charged with a crime. More explanation here.)

From the U.S. attorneys' filing:

Maggio signed both a consent form and an Advice of Rights form prior to the polygraph examination. During the polygraph, Maggio was asked about direct communications with Individual B. Maggio’s results indicated deception, which is commonly known as failing the polygraph. Immediately after the polygraph, Maggio revealed that his communications with Individual B were more detailed than he had previously disclosed to the United States. The materiality of those details was substantial. Maggio revealed that Individual B told him that Individual A was following the case and would be appreciative of Maggio making the right decision. Maggio also revealed that Individual B told Maggio that Individual A’s contributions to Maggio would have to be handled differently than Individual A’s contributions to other candidates. Maggio further revealed that sometime between November 2013 and January 2014, Maggio approached Individual B to ask where the rest of the promised $50,000 was, since Maggio had only received $25,000.

After Maggio revealed this information, the United States showed this interview to Maggio’s previous counsel on January 26, 2016, and requested an explanation as to why Maggio had failed to provide this information in four prior interviews.

In other words: Maggio said he'd fully cooperate and did not. His breaking the terms of the plea agreement could mean a tougher sentence.

Shortly thereafter, Maggio "ceased communicating with his counsel," and retained a new attorney in early February. In a motion to withdraw Maggio's guilty plea, his new lawyer, James Hensley, said that Maggio's previous attorneys had given him bad advice in suggesting that he plead guilty and that there was "no factual basis for the plea" from January 2015. Hensley's argument is partly a technical one — he claims the federal bribery statute in question doesn't apply in Maggio's case — but the motion to withdraw the plea also says the following.

[Maggio] asserts that he did not solicit or accept anything of value in order to be influenced to remit the judgment in his civil case and only admitted that he did because he was pressured by his previous counsel and threatened by the U.S. Attorney with the indictment and prosecution of his wife.

In their response filed on Friday, prosecutors urged Judge Miller to deny the request to withdraw the plea and argued against all of these points. Yes, the federal bribery statute applies, they say, and, no, Maggio's previous counsel wasn't particularly ineffective. And as for the idea that Maggio was threatened with prosecution of his wife:

Further, except for a self-serving, one sentence, unsworn allegation, Maggio, a former attorney and judge, provides no detail or evidence suggesting he was forced to plead guilty or accept the statement of facts while protesting his innocence. If necessary, the United States will present testimony of Maggio’s former counsel that Maggio was never threatened, as he theatrically alleges in his motion, with the indictment and prosecution of his wife. Rather, Maggio was presented with the evidence of his own guilt, and the United States offered him the option to proceed by Information and Plea prior to presenting any Indictment. A hearing should not be necessary, however, on the basis of Maggio’s thin assertion, because the record flatly Case 4:15-cr-00001-BSM Document 31 Filed 02/19/16 Page 10 of 15 11 proves the opposite true. At the Change of Plea Hearing, the Court inquired whether Maggio was “satisfied with the legal representation you have received,” and Maggio replied, “Yes, sir.” Plea Tr. at 3. The Court also asked Maggio, “Have any threats or promises been made to you to get you to plead guilty?” to which Maggio replied, “No, sir.” Id. at 15. The Court further asked, “Are you pleading guilty because it’s what you want to do?” and Maggio responded, “Yes, sir.” Id. at 16. Therefore, Maggio’s bare allegation that he was pressured by his former attorneys and the government to plead guilty is insufficient to permit him to withdraw his plea.


With respect to the timing of Maggio’s motion to withdraw, the timing of his filing in conjunction with the sequence of events makes clear that Maggio is simply seeking to avoid the consequences of his breach of the Plea Agreement and Addendum.

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