Attorney's Health Forces Mistrial

Attorney's Health Forces Mistrial

By David R. Corder

Associate Editorr

At a pretrial hearing about a year ago, U.S. District Judge Elizabeth Kovachevich took the precautionary measure of ordering Greg Schultz to undergo a neurological examination. The Clearwater attorney, indicted in December 2002 on charges he conspired to sell unregistered securities, acknowledged to her at the hearing concerns about his health problems. He has trouble standing for prolonged periods of time.

Only Schultz told the judge he couldn't afford the examination. He had claimed only $105 in cash and no assets, court records show. She told him not to worry. Taxpayers would take care of the bill.

By late February, it appeared that Schultz had allayed most of the judge's concerns. The long-delayed trial began against him and co-defendants Joseph Cuciniello, Dean Sinibaldi and Gene Tyrrell.

Over the past several weeks the defendants listened as prosecutors accused them of participating in a scheme to defraud investors out of about $18.4 million. Prosecutors allege they promised investors a 13% return on unregistered eight-month promissory notes sold through Millennium Investment Inc.

Unlike his co-defendants, Schultz decided to represent himself. Kovachevich told him at the hearing last year it wasn't a wise decision. The charges against him pose the potential for up to 150 years in prison and possibly millions of dollars in fines. The judge relented, however.

During the second week of trial, Schultz joined the co-defendants' lawyers at the bench for a sidebar conversation. Suddenly he fell, picked himself up but told the judge he had just lost his balance. All was fine he assured her.

The next day, however, Schultz failed to show for trial. He had been admitted to a hospital. Neurologists later advised the court he wasn't fit to continue with the trial.

Kovachevich reacted swiftly. She allowed the trial against his co-defendants to continue, but she granted Schultz a mistrial.

Then the judge ordered Schultz to assemble all of his medical records. She wanted to know whether he "was malingering or genuinely incapacitated." Once she received the records, the judge ordered Schultz to submit to a psychiatric examination.

"The entire pretrial period of this case was characterized by various obstructionist tactics by defendant Schultz," Kovachevich wrote in a March 21 order. "Defendant Schultz filed frivolous motions. Defendant Schultz has sought the recusal of every judicial officer associated with this case."

That was not the only thing that angered the judge. After she declared the mistrial, it appears Schultz tried to call Cuciniello and Sinibaldi without the approval of their lawyers. In response, the judge ordered Schultz to cooperate with a court-appointed attorney.

"Defendant Schultz was granted a mistrial due to medical reasons, with a physical illness so severe that he could not assist his counsel," Kovachevich wrote in the March 21 order. "The court is troubled that now, a short time later, defendant Schultz is well enough to 'assist' the other defendants."

It appears Kovachevich has reached the limits of her patience. She left no doubt about her intent if Schultz fails to provide her with all available medical records or cooperate with his court-appointed public defender.

"Failure to do so will be interpreted by this court as a contempt of court, punishable by incarceration," she wrote. "Any attempt to create a conflict of interest between defendant Schultz and his own counsel will be seen for what it is - another attempt to delay the trial of defendant Schultz."

In response to Schultz's actions, counsel for Cuciniello and Sinibaldi asked for mistrials. Kovachevich denied the motions. Following a three-day break, their trials resumed on March 29. The court has scheduled trial dates in this case through the end of May.

Because of personal commitments, John Fernandez, Schultz's court-appointed lawyer, asked the judge to delay the retrial of his client to no sooner than June 27. Kovachevich granted his request.