Friday, July 11, 2014

Musto loses in three-day legal blitz

Former state senator is required to report federal facility Monday

January 31. 2014 11:41PM

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The last ditch effort to keep Raphael Musto from reporting to a federal facility Monday generated at least 535 pages of filings in two courts over three days asking judges to let Musto stay home.

In the end it was settled by a single sentence of 20 words that, summed up, said “no.”

Facing multiple charges of corruption from his days in the state Senate, Musto has been fighting this legal battle since an initial indictment was handed up on Nov. 23, 2010. He pleaded not guilty Nov. 15 of that year, and launched a long legal battle that repeatedly delayed trial.

Late last year Musto had sought an indefinite continuance of the trial, contending health issues and mental deterioration made him unable to withstand a trial or participate in his own defense. His attorneys cited an aortic aneurysm and non-alcoholic cirrhosis.

On Jan. 7 U.S. District Judge A. Richard Caputo ruled that Musto was physically able to go to trial but mentally incompetent. Caputo ordered Musto be put in custody of the Attorney General, and subsequently admitted to the Federal Medical Facility in Butner, N.C.

Musto’s attorneys filed an appeal with the U.S. Third Circuit Court asking that the ruling on physical competence be overturned and an indefinite continuance granted.

But on Wednesday, with no action from the appeals court and an order requiring Musto to enter the Butner facility Feb. 3, his attorneys went into high gear.

They filed paperwork arguing Caputo should grant a temporary stay, pushing the date with Butner to Feb. 24 so the appeal could unfold. Caputo denied the request later that day, pointing out admission to the facility was mandated by federal law once mental incompetence was ruled and calling the request “incongruous.”

On Thursday Musto’s attorneys appealed to the Third Circuit Court, asking for an emergency suspension of the order to report to Butner, arguing the very trip could kill Musto. Among the 184 pages filed was a footnote that cast a different light on the last minute dramatics.

Defense attorneys noted the request for a stay from Caputo was filed Jan. 28 and that “counsel should have filed the motion … sooner.” That admission was followed by an explanation:

“Co-counsel (Walter) Batty, who has major responsibility for drafting all the papers in this case, was not able to do any drafting from January 14 to January 22, 2014, because of computer malfunctions.”

Friday morning the government filed a 230-page response that boiled down to the same argument Caputo had made in denying the earlier request: Once ruled incompetent, the law unambiguously required commitment to a federal facility for up to four months evaluation.

Musto “must show that he has a strong argument that this aspect of the district court’s order was in error,” the government wrote. “Quite simply, he can’t.”

By 2:45 p.m. Friday it was settled with a terse order by the appeals court: “The foregoing Emergency Motion by Appellant to stay order committing him to the custody of the Attorney General is denied.”

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