Two weeks before Michael Maggio is scheduled for sentencing, the ousted judge asked a federal court Friday to let him withdraw a guilty plea on a bribery charge.
The request came more than a year after Maggio, 54, admitted in U.S. District Court in Little Rock that he had lowered a Faulkner County jury's $5.2 million judgment in a negligence lawsuit against a Greenbrier nursing home to $1 million in exchange for thousands of dollars in contributions to his 2014 campaign for the Arkansas Court of Appeals.
Conway attorney James Hensley Jr., whom Maggio retained earlier this month, filed the withdrawal motion that accuses Maggio's previous lawyers, Lauren Hoover and Marjorie Rogers, of ineffective assistance of counsel and says "there is no factual basis for the plea."
Maggio now contends he is innocent. Maggio admitted to bribery only "because he was pressured by his previous counsel and threatened by the U.S. Attorney with the indictment and prosecution of his wife," the motion says.
Maggio's 2014 campaign chairman/treasurer, Luke Pruett, has said he wasn't the treasurer in practice, naming Dawn Rivers, Maggio's girlfriend at the time and now is his wife, as the holder of that position.
Maggio's sentencing, already twice postponed, is set for Feb. 26. He could face up to 10 years in prison, three years of supervised release and a fine of up to $250,000.
Neither Hoover nor Rogers responded to a message seeking comment Friday.
Earlier this week, U.S. District Judge Brian Miller denied their requests to resign as Maggio's attorneys. Miller could now reverse that decision and allow them off the case, said Ken Gallant, a professor at the University of Arkansas at Little Rock's William H. Bowen School of Law.
Assistant U.S. Attorney Patrick Harris said the government will "file a response by next Friday objecting to [Maggio's] motion to withdraw his guilty plea."
Hoover and Rogers "can testify on their behalf" during any hearing on the motion, Harris said.
For Maggio to proceed with the argument that his counsel did not represent him effectively, he will have to waive privilege, at least regarding information relevant to that claim, Gallant said. By doing so, the previous attorneys then could testify to at least some of the information they and Maggio shared before the negotiated plea agreement was signed in January 2015.
Although federal guilty-plea withdrawals don't happen often, Gallant said "it is almost always easier to withdraw a guilty plea before sentencing than after."
Maggio's plea agreement limits the reasons it can be withdrawn.
At one point, it says "the defendant waives the right to collaterally attack the conviction and sentence ... except for claims based on ineffective assistance of counsel or prosecutorial misconduct."
Criminal-defense attorney Bill James, who is not involved in this case, has said withdrawing a guilty plea in federal court is "very, very difficult to do."
Even if Miller grants Maggio's request, Maggio's legal problems may not be over.
"The government is certainly free to indict him" if the plea is withdrawn, said Michael Johnson, a former U.S. attorney who also formerly taught at the Bowen School of Law.
Maggio's plea agreement also provided that even if he successfully withdrew the plea, certain statements he made in reaching the deal could be used in the government's case and to cross-examine him should he testify at some point.
A plea withdrawal also could affect Maggio's sentence. The agreement said Maggio would be eligible for some reduction in his offense level "for acceptance of responsibility" unless he acts in a way "that is inconsistent with acceptance of responsibility" before sentencing.
The consequences of a plea withdrawal could extend beyond Maggio's case because the investigation isn't over.
Maggio implicated two other people in his agreement. It did not identify them by name but referred to them as a nursing-home owner and a fundraiser for Maggio.
A lawsuit filed by the family of Martha Bull, a Perryville woman who died in 2008 in Fort Smith businessman Michael Morton's Greenbrier nursing home, is pending against Morton and former state Sen. Gilbert Baker, now a lobbyist. Baker, a Conway Republican, helped raise money for Maggio's 2014 campaign.
The plea deal resulted from Maggio's handling of a previous negligence lawsuit filed by Bull's family against Greenbrier Nursing and Rehabilitation Center.
The current lawsuit accuses Morton and Baker of conspiring to funnel donations to Maggio's campaign in exchange for a reduced judgment in the negligence lawsuit. Morton and Baker have denied wrongdoing and have not been charged with a crime.
The Arkansas Supreme Court ordered Maggio removed from office in September 2014 over unrelated problems, including online comments he made about a legally confidential adoption involving actress Charlize Theron.
The motion filed Friday also argues for plea withdrawal based on legal issues other than innocence.
It says Maggio's previous attorneys incorrectly informed him that his conduct violated the federal bribery statute at issue -- 18 U.S.C 666 -- and "improperly advised him to plead guilty when it is clear ... that this conduct clearly does not violate" that law.
"Defendant acknowledges that he did not object to his counsel's representation of him at the plea hearing, but he was unaware at the time that the conduct he admitted to did not subject him to" that law, the motion adds.
"A judge who accepts a bribe in exchange for a favorable ruling in a civil case cannot be convicted under" this law, the motion says.
Further, it says, "Maggio's rulings were not 'in connection with any business, transaction or series of transactions' of any State, local or county government or any agency."
Maggio's plea agreement noted that the 20th Judicial Circuit's 2nd Division, where Maggio was a judge at the time of the purported bribery, received more than $10,000 in federal funds in 2013 and again in 2014. That funding is what allowed the federal government to pursue the case against Maggio under Title 18, U.S. Code, Section 666 even though the purported bribe did not directly involve federal money.
A footnote in the motion acknowledges, "Section 666 does not require that the government prove that the defendant actually misappropriated federal funds, or prove a connection between the offense conduct and the federal funds. ... However, to face charges under [Section 666], the recipient of a bribe must be in a position where he or she could affect the expenditure" of those funds.
State Desk on 02/13/2016