The actions of the plaintiff and his attorney in the civil pay-to-play lawsuit involving the Richardson administration are creating a media circus.
It’s no secret that most judges don’t like their cases tried in the media. That’s why most attorneys don’t turn their clients’ lawsuits into media circuses.
So the actions of Victor Marshall and his client, Frank Foy, who is alleging in a civil lawsuit a pay-to-play scheme involving the Richardson administration, should raise eyebrows. This isn’t the ongoing federal, criminal grand jury investigation into allegations that the Richardson administration traded a lucrative state bond contract for $110,000 in contributions to Gov. Bill Richardson’s political committees and his 2006 gubernatorial campaign. This is the allegation that the administration made state investments with Vanderbilt Financial and affiliated companies in exchange for a little more than $15,000 in contributions to Richardson’s 2008 presidential campaign.
Foy, who could personally pocket tens of millions of dollars if he’s successful in winning some $300 million in damages for the state, alleges that Dave Contarino, Richardson’s right-hand man, ordered two other state officials to make investments with Vanderbilt. The state ended up losing $90 million in the investment deals.
Consider the series of events that have led to media coverage of the lawsuit:
• The lawsuit was filed in July, but Foy and Marshall left it sealed until last month, when the media was focused on covering scandal because of the other pay-to-play controversy — the grand jury probe — dogging the Richardson administration. For some of that time, they couldn’t unseal the lawsuit because the attorney general was considering whether to take the case and investigate it himself, but what about after the AG declined to take it?
The timing of the unsealing of the lawsuit is too convenient — and beneficial to Foy’s case — for me to believe it’s coincidental. To top it off, when Foy and Marshall unsealed the lawsuit, they kept a number of defendants’ names secret for unveiling at later dates.
• Last week, Marshall put out a news release informing the media that he and Foy had issued a subpoena for records from the governor’s non-profit foundation. That came days after an Albuquerque Journal article drew attention to the fact that donors had given almost $1.7 million to the foundation, which is not required to release its donor list publicly. More media attention.
• Contarino’s name was among those left sealed when the lawsuit was unveiled last month. It was released Tuesday at a news conference that was announced on Monday. Alerted by media coverage that the news conference was going to happen, attorneys for some of the defendants in the case predictably crashed the party, and a shouting match between them and Marshall ensued and garnered a great deal of media attention.
• Dozens of defendants’ names remain sealed, including that of John Doe #1. I’m assuming that, since Contarino — the lynchpin in Foy’s allegations — is John Doe #2, there’s a good chance Richardson is the first John Doe. It’s possible that some of those listed as John Doe #3-50 are sealed because Foy and Marshall aren’t yet certain of their involvement, but it’s reasonable to assume that, at the very least, they intentionally left the first and second John Does’ names sealed for later unveiling that would ensure additional media coverage.
Why not just unseal the names at the same time they unsealed the lawsuit and give the media the information it needs to scrutinize the allegations and help determine whether there is any substance to them? Probably because trotting them out like this forces the media to publish and broadcast more daily stories. It keeps the case in the news.
That’s not a way to win a case. It’s a way to sway public opinion.
A ‘political witch hunt’ or a lawsuit with merit?
Let me be clear about one thing: I’m not saying Foy’s allegations are false or that the lawsuit lacks merit. I have no idea what’s true and what isn’t true. That’s for a court to decide.
But it’s fair to raise the question about why Foy and Marshall, a former Republican state senator from Albuquerque, are trying their case in the media in such a blatant manner. Contarino says the answer is that the lawsuit is a “political witch hunt.” Richardson spokesman Gilbert Gallegos agrees and says he hopes that “the court will hold them accountable for this unethical grandstanding.”
Marshall told The Santa Fe New Mexican he withheld Contarino’s name until Tuesday because the case “is extremely sensitive from a political point of view” and he is working to protect his client as long as is possible from retribution.
Any retribution that was going to come as a result of the lawsuit being filed came the day it was unsealed. Using the case to sway public opinion is a way to draw out even more anger from the other side, not protect Foy from it.
In this midst of this media circus, it’s important that the public and media remember that, while Foy’s allegations might be true, this is a civil lawsuit, which is much different than the federal, criminal grand jury investigation into the other pay-to-play controversy dogging Richardson. While the first is serious, there’s much more at stake in the second.