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DeNaples launches aggressive public defense

The motions, filed today with the Dauphin County Court of Common Pleas, follow a renewed appeal to the Pennsylvania Supreme Court to stay the Grand Jury proceedings and overturn its findings. The Supreme Court appeal was filed last week, alleging that the Grand Jury's presentment and the acceptance of it by Supervising Judge Todd Hoover removes the jurisdictional hurdles that previously prevented the Supreme Court from hearing the merits of the matter -- specifically, that the Grand Jury was improperly impaneled, that it operated beyond the limits of the Grand Jury Act, and that the repeated leaks of information about Grand Jury activities to the press so unfairly prejudiced DeNaples that the charges against him must be dismissed.

"This prosecution of Louis DeNaples is the most outrageous of its kind that I have ever seen," said lead defense attorney Richard A. Sprague. "From the start, this has been an investigation that was tainted by the incessant leaks of information about Grand Jury proceedings -- proceedings that by law are required to remain confidential. "At every turn, these proceedings -- which are supposed to be conducted in secret, out of the public view -- have been employed to publicly smear Mr. DeNaples, whose name and business relationships have been severely damaged as a result," Sprague said. "There has been no showing whatsoever that Mr. DeNaples ever engaged in any criminal conduct with the individuals identified in the Presentment.

"These charges just don't stand up to inspection, either because there is no showing that Mr. DeNaples lied, or because the allegations are built on the uncorroborated testimony of a single witness, or because the DA has failed to show that there is a finding of materiality, which is required under the law to prove perjury."

Even assuming that D'Elia's testimony is true (and to be clear, it is not true), the Grand Jury Presentment that is the basis of the criminal charges against DeNaples fails to identify what if any DeNaples testimony before the Gaming Board he knew to be false. In fact, according to the Motion to Quash the Presentment filed by the defense, the so-called "D'Elia Counts" (Counts I and II) in the Presentment "set forth a number of allegations about D'Elia and DeNaples without tying any of those allegations to any of the testimony of DeNaples."

With respect to Count III of the Presentment, the so-called "Shamsud-din Ali" allegations, the Motion to Quash states that the Presentment wholly fails because it is based on whether DeNaples "knows" Ali, a term "'so patently ambiguous that to allow it to serve as the basis for a perjury prosecution is contrary to all notions of fairness and justice.'" (Motion to Quash Presentment, quoting the 1983 Pennsylvania Superior Court decision in Commonwealth v. Spennato). Indeed, as the Motion states, DeNaples' testimony about Ali "is not contradicted by anything stated in the Presentment" and the Presentment does "not establish that any of the testimony given by DeNaples regarding ... Ali was false."

Similarly, the Motion to Quash contends that Count IV (the "Ron White count") of the Presentment fails to identify any statements by DeNaples that were knowingly false, and also fails to tie the allegations to any testimony by DeNaples.

"When you get past the headlines and the leaks and actually read what Mr. DeNaples said in his testimony before the Gaming Board, without taking that testimony out of context, you discover that there simply is no basis for a perjury case against him," Sprague said.

The Motion to Quash the Presentment and dismiss the criminal complaints against DeNaples incorporates a demand that the perjury charges against Mount Airy #1 LLC be dismissed in their entirety, on the grounds that it is impossible for a corporation to commit perjury. In fact, as the motion points out, there has never been a successful prosecution of a corporation for perjury in Pennsylvania history. In addition, DeNaples' lawyers filed a motion demanding access to all exhibits, minutes, testimony, and other materials assembled during the course of the Grand Jury's investigation, including the so-called "Brady materials" (exculpatory materials) that were introduced to the Grand Jury, as well any materials tending to show DeNaples' innocence that were withheld from the Grand Jury by the DA.

Together, the defense motions and the renewed application for Supreme Court review of the Grand Jury proceedings outline the basics of the DeNaples defense. They provide evidence of a Grand Jury that, under the leadership of the DA, has made DeNaples the scapegoat in a public war between the State Police and the Gaming Board's Bureau of Investigation and Enforcement over which agency should conduct background checks for gaming applicants. State law vests that power in the BIE. The State Police (and the District Attorney) nonetheless have argued publicly that the State Police should assume control of this function, and they point to the DeNaples case as a prime illustration of their claim.

As the defense makes clear in the motions and the Supreme Court petition, to further their cause the DA and the State Police determined to build a criminal case against DeNaples at all costs -- and to make that case as publicly as possible, through the use of what the defense has characterized as "prosecution by headline."

To that end, the activities of the Grand Jury were leaked incessantly to the press and the public, with scores of news articles detailing Grand Jury activities on a daily basis "according to sources close to the investigation" or "sources familiar with (the) case who spoke on condition of anonymity because of the confidentiality of grand jury matters."

"At every opportunity, there were leaks to the media about the testimony of witnesses," Sprague said, "and it was all designed to cast Mr. DeNaples in a negative light. We saw witnesses being paraded to and from the Grand Jury room in front of the press, those same witnesses being identified for the media by the DA or his representatives, and even the publication of dates and times for Grand Jury sessions on a website that has its own media sponsors."

As detailed in the Renewed Application for Review filed with the Supreme Court, the public release of Grand Jury Report No. 1, which was issued along with the Presentment and purports to summarize "credible evidence" of DeNaples' perjury, also creates substantial prejudice toward DeNaples. The publication of the Report is filled with outrageous misstatements of fact, unsubstantiated claims, and statements designed to allow an inference of wrongdoing by DeNaples, such as the fact that he exercised his right to the protections afforded him by the Fifth Amendment of the U. S. Constitution.

As the Renewed Application states, these include an allegation that "DeNaples ... (employed) his organized crime contacts to fix his (1978) criminal trial" -- even though the FBI long ago concluded that this claim had no basis in fact. The Renewed Application also points to other false claims included in the Report that create prejudice towards DeNaples: that he met with an alleged mobster named Salvatore Avellino; that he opposed any scrutiny of his testimony before the Gaming Board; and that he failed to provide the BIE with documents he had received through Freedom of Information Act requests.

As the defense makes clear, Pennsylvania law requires that where a grand jury report contains information that is prejudicial to the defendant, the report "shall" be held under seal. In this case, where prejudice to DeNaples occurs repeatedly in Grand Jury Report No. 1, the publication of the Report violates Pennsylvania law and subjects DeNaples to substantial harm.

The defense contends that for all of these reasons, the Presentment and the criminal charges that arise from it do not stand up to scrutiny.

"We are talking about an investigation that lasted for more than six months, one in which the DA poured over the testimony and materials submitted by Mr. DeNaples before the Gaming Board in 2006," Sprague said. "We are talking about an evidentiary record before the Gaming Board that is so voluminous that it filled a tractor trailer when it was delivered to the Board during the application process.

"And in all of tens of thousands of pages of materials and testimony that was submitted to the Gaming Board, there has been no finding -- none -- that Louis DeNaples ever engaged in any criminal conduct with any of the individuals identified in the Presentment. Instead, after thousands of hours of investigation, the DA believes he has found four -- four -- examples in which Mr. DeNaples is alleged not to have told the truth.

"The charges are simply not supported by the facts, and we are confident that Mr. DeNaples will be proven innocent."

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