Appeals court keeps Freebery motion against judge alive

By SEAN O'SULLIVAN
The News Journal
A government appeal seeking to remove the current judge from the fraud and racketeering trial of two former New Castle County officials, or force him to rule on evidence, has passed a first critical test.
In a ruling made public today, the U.S. 3rd Circuit Court of Appeals ordered the defendants in the case to respond in writing to the government petition within 14 days.
The appeals court could have flatly rejected the motion as groundless.
As a practical matter, this means the trial of former New Castle County Chief Administrative Officer Sherry Freebery and ex-administrative aide Janet Smith could be pushed back to Feb. 20 and possibly longer.
The trial had originally been set to begin Feb. 5.
Senior District Judge John P. Fullam, whom federal prosecutors are trying to force off the case, has ruled the trial is on hold until at least 10 days after the appeals court resolves the government motion.
After defense attorneys respond, the appeals court could ask the government to file a rebuttal, could ask both sides to appear for oral arguments or could issue a ruling.
Meanwhile, Smith's attorney, Joe Hurley, has filed a motion with Fullam seeking permission to either step down from the case or have the trial postponed until at least June 1.
Hurley, an active solo criminal defense attorney in state court, said the delays are potentially ruining his livelihood.
He wrote to Fullam that he received special permission from the state court to postpone all his cases until after February, assuming the Feb. 5 date would not change.
He wrote it would be nearly impossible — both practically and financially — to clear another a month in his calendar again until the summer.
Among Hurley's upcoming cases is the third murder retrial of Russian national Irina Malinovskaya in April.
Criminal charges were first filed against Freebery, Smith and former New Castle County Executive Tom Gordon in May 2004.
No trial date has been set for Gordon.