By Jen McCaffery

Archives Reprint

    Federal prosecutors have requested that the second trial of former National D-Day Memorial Foundation President Richard Burrow take place in Abingdon, based largely on their argument that Burrow has provided "false and misleading information" to local media in an attempt to "inflame and influence potential jurors."

    Assistant U.S. Attorneys Patrick Hogeboom and Tom Bondurant also asked in a motion filed Tuesday in federal court for the court to draw jurors from the Big Stone Gap division of the Western District of Virginia, where "the local media has the fewest news outlets."

    But Richmond lawyer Steven Benjamin, who is on the board of the National Association of Criminal Defense Lawyers, said he found it hypocritical for the prosecution to complain about the defense having information in the local media, "when that is what the government does in every case of public interest. They stage media events routinely in order to shape and influence public opinion."

    And one of Burrow's attorneys, John Lichtenstein, challenged the prosecutors' assertions that Burrow provided any false or misleading information, including that Burrow had made "false expressions of surprise" when he was indicted again last month on 12 federal charges, including fraud and perjury.

    Prosecutors argued that they had contacted Lichtenstein on Dec. 24, about their plan to seek new charges against Burrow, 57, including a new perjury charge, according to the motion.

    "There wasn't any expression of surprise on the defendant's part," Lichtenstein said. "There wasn't any expression of surprise in the defendant's statement. Five months after a self-proclaimed deadline, there was reason to hope and expect it wouldn't come back."

    Lichtenstein confirmed that the government had contacted him Christmas Eve with news of their intention to seek new charges against Burrow, including a perjury charge.

    The government's motion made no mention of U.S. Attorney John Brownlee's March news conference, when he announced that his office planned to seek new charges against Burrow within 60 to 90 days.

    Hogeboom and Bondurant challenged several statements they said Lichtenstein made to local media after Burrow was indicted again in January.

    Lichtenstein also stated that prosecutors chose not to rebut Burrow's testimony with any witnesses after Burrow testified in his defense at his December 2002 trial. In fact, the prosecutors wanted to recall Robert Chapman about a loan to the Bank of the James, they argued.

    "There is absolutely no doubt that the defendant was acutely aware that the United States did all it could to call a rebuttal witness on the very issue he now faces a perjury charge," prosecutors argued.

    But Lichtenstein argued that federal prosecutors at the first trial said they did not have any rebuttal evidence on Friday, Dec. 13, 2002. Then, that Monday, when closing arguments were scheduled to begin, prosecutors asked to reopen the case, and the defense objected, Lichtenstein said, as it should have. Senior U.S. District Judge James Turk ruled in favor of the defense, Lichtenstein said.

    Prosecutors also argued that the media had reported that prosecutors' failure to call former foundation lawyer Louis Harrison to testify "somehow validated" Burrow's defense that he relied on Harrison's legal advice to get a cash match from Virginia using unavailable funds from the National Cooperative Bank.

    They argued they could not call Harrison as a witness "due to ethical and constitutional limitations," according to the motion.

    But Richmond lawyer Benjamin questioned that argument.

    "Sounds to me like they're complaining about the rules by which we're all bound," he said.

    Asked about the allegation regarding Harrison, Lichtenstein replied, "only the government can tell you why they didn't call Harrison." Harrison has since admitted that he filed a false legal opinion to National Cooperative Bank and has avoided a wire fraud charge of his own by cooperating with federal prosecutors in the case against Burrow.

    Prosectors also took issue with letters published in local media, "all expressing strong opinions of lay people and self-proclaimed legal experts."

    "It seems the propriety of prosecution has taken center stage, while issues relating to Burrow's fraudulent conduct have been squeezed into the background, or totally offstage," prosecutors argued.

    Lichtenstein declined to comment on prosecutors' characterization of the letters.

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