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WASHINGTON - Ten years after their arrest and five years after their imprisonment, John and Timothy Rigas continue to fight for their freedom.
They're awaiting a federal judge's decision in their effort to win a new trial, making the case that overzealous prosecutors, not their own actions, landed the former Buffalo Sabres owner and his son in the Allenwood Federal Corrections Complex in Pennsylvania.
The Justice Department already is under fire for sloppy prosecutions involving everyone from the late Sen. Ted Stevens to former Sen. John Edwards to baseball great Roger Clemens, and the lawyer for the former Adelphia Communications Corp. executives thinks he's got an important case to make.
"There's been a recognition that the prosecutors have been playing a little fast and loose," said Lawrence C. Marshall, a Stanford University law professor who has taken up the Rigases' case.
Marshall contends that's what happened in the Rigas case, where a key potential witness with evidence that could have cleared the Rigases - an outside lawyer for Adelphia Communications Corp., the Rigas family company - refused to talk to the defense before their 2004 trial.
What's more, prosecutors refused to give notes of an interview with that key potential witness to the defense.
"We affirm that the government interfered with the defense's ability to put on its case," Marshall said.
For their part, federal prosecutors respond to that argument with the legal equivalent of a groan.
"Most remarkably of all, four years into their sentences, the Rigases show not a trace of remorse for the massive, $4 billion fraud that they orchestrated," Preet Bharara, U.S. attorney for the Southern District of New York, in court papers. "Instead, they seek to keep litigating, 10 years after the fraud came to light."
The Rigases were arrested in July 2002 and convicted two years later of fraud and conspiracy. Prosecutors said they "looted" the company of $100 million while hiding billions of dollars of debt and lying to banks and investors about Adelphia's earnings.
John Rigas, 87, is now serving a 12-year sentence, while his son Timothy, 56, is serving a 17-year sentence.
Their lawyers advised the Rigases to turn down a Buffalo News request for an interview.
Asked how his father and brother were doing in prison, Michael Rigas said: "They're doing about as well as can be expected."
But they might be free men, their lawyers argue, had Carl Rothenberger testified at the Rigases' 2004 trial.
Rothenberger was the Pittsburgh-based lawyer who signed off on many of the complicated financial transactions that prosecutors blamed on the Rigases, Marshall said.
Rothenberger knew a lot about the complicated criminal case against the Rigases - and he revealed what he knew in a 2004 interview with prosecutors.
The notes from that interview never surfaced during the criminal trial, but a judge in a separate tax case against the Rigases ordered the notes to be turned over last year.
The Rigases contend that the interview notes contradict the argument that they fraudulently misled investors in government filings, that they failed to disclose important company transactions and that they artificially inflated Adelphia's earnings.
What's more, the notes show that Rothenberger signed off on the company's major decisions, thereby undercutting the prosecution's argument that the Rigases concocted a massive fraud, Marshall said.
"He had blessed and advocated all their actions," Marshall said of Rothenberger. "To show criminal liability, you have to show criminal intent."
For that reason, prosecutors didn't want Rothenberger to testify at the trial, said Michael Rigas, who won freedom thanks to a mistrial just as his father and brother were convicted.
"They were afraid of what he would say," Michael Rigas said.
The government couldn't disagree more, saying the Rothenberger interview notes merely show him sanctioning the Rigases' dubious financial practices.
"There is nothing exculpatory - let alone materially exculpatory - or impeaching in the Rothenberger interview," save for some details on a minor issue that were shared with the defense, assistant U.S. attorneys David B. Massey and Justina Geraci said in a letter last month to the federal judge handling the case.
The Rigas attorneys and the government also disagree profoundly over just what happened with Rothenberger in 2004 and why the defense didn't know what he was saying at the time.
"In a normal setting, he would have been a witness for the defense," Marshall said. "But he was refusing to speak to the defense at all."
To which the government asks: Why not subpoena him, then?
"It defies all logic for the Rigases to continue to blame the government for their decision not to call Rothenberger," Bharara, the U.S. attorney, said in court papers.
Marshall said, though, that the Rigas defense team was shorthanded, meaning some potentially important strands of the case might have been neglected.
"They never had the resources prior to the trial to do a thorough investigation," he said.
The Rigases had the resources, though, to fight their conviction all the way to the U.S. Supreme Court, and they've lost every step of the way.
Conditions have changed since then, Marshall contends.
For one thing, the Rothenberger notes were revealed in that tax case against the Rigases - and prosecutors subsequently decided to drop all charges.
For another, just last month a federal appeals court reversed the conspiracy convictions of former brokers at Merrill Lynch & Co., Citigroup Inc. and Lehman Brothers Holdings.
The reason?
The prosecution withheld evidence from the defense - which is just what the Rigas defense argues in its case.
That federal appeals court reversal in a case called U.S. v. Mahaffy points to an important new reality, Marshall said.
"There's some real scrutiny now on the ways prosecutors deal with cases," he said.
Then again, prosecutors said the Rigas defense is "flatly wrong" to cite the Mahaffy case as a reason for the court to give the Rigas case another look.
The Mahaffy case did not involve pretrial interviews of nonwitnesses as the Rigas case did, the prosecutors said in their Aug. 31 letter to the judge. Instead, it involved sworn depositions of people who were later called as witnesses - rendering this an apples-to-oranges comparison.
U.S. District Court Judge Leonard B. Sand, who presided over the trial where the Rigases were convicted, will decide on the Rigases' new case.
That's the same judge who, when first sentencing John J. Rigas in 2005, said:
"The man I have to sentence is the man reflected in the evidence, a man who long ago sent Adelphia on a track of lying and cheating and defrauding. Regretfully for everyone, this was not stopped over 10 years ago but continued and got more brazen and culminated in one of the largest frauds in corporate history."
As if that were not bad enough, Marshall acknowledged that the Rigases' latest attempt for freedom is a legal long shot.
In such cases, "relief is rare," he said. "But these circumstances are rare."

email: jzremski@buffnews.com.