By Ross Todd, From The Recorder

U.S. District Judge William Alsup doesn’t typically interrupt opening statements for bathroom breaks.

Then again, there is little that’s typical about the trial of fallen San Francisco real estate tycoon Luke Brugnara—a tour-de-force personality who has escaped once from federal custody, has two former lawyers on the government’s list of potential witnesses and is now, aggressively, representing himself.

On Tuesday, Brugnara, who is accused of conning an art dealer out of valuable works, passed a note to Alsup asking to use the rest­room shortly after assistant U.S. attorney Benjamin Kingsley launched into his opening statement.

After confirming that it was an emergency, Alsup reluctantly excused the jury but later called the move a “dirty trick.” It was the first time in 16 years on the bench, Alsup said, that one party had interrupted another for a bathroom break during opening statements.

The episode marked the first of many disruptions during the first week of trial that prompted Alsup to chide Brugnara outside the jury’s presence. Pro se defendants are exceedingly rare in felony cases, and those that do forgo counsel often face difficulties negotiating the formal rules of a criminal proceeding. But Brugnara, a 51-year-old convicted felon on his second spin through the federal system, seems more determined than most to throw sand in the gears.

His trial is testing the judge’s patience and prosecutors’ ability to litigate their case around his outbursts. While dealing with his at times outrageous conduct, participants on all sides have to be careful not to make comments in front of the jury that would influence their verdict in the case.

The trial has attracted some spectators, including U.S. Attorney Melinda Haag and U.S. District Judge Jon Tigar, who both dropped into the courtroom this past week.

Alsup clearly has a sense that Brugnara knows what he’s doing with all the theatrics.

According to the transcript of a jailhouse phone call that prosecutors filed with the court in the run-up to trial, Brugnara told his mother that he would ignore the court and say whatever he wanted to the jury, knowing that anything stricken from the rec­ord couldn’t be stricken from jurors’ minds.

Brugnara assured Alsup at a pretrial hearing that those were just words he said to “placate” his worried mother. But just three days into trial, Alsup said, it was evident that Brugnara was doing “just what you told your mother you were going to do.”

Said Alsup: “Everybody has been trying their best to give you a fair trial, and you’ve done your best to sabotage the process.”

LAWYER-GO-ROUND

Federal prosecutors contend that Brugnara persuaded East Coast art dealer Rose Long to ship him $11 million worth of art that he didn’t intend to buy. The government says Brugnara received five crates of art last spring, including an Edgar Degas sculpture valued at $3 million, a group of Pablo Picasso etchings and a collection of valuable paintings by Dutch-American expressionist Willem de Kooning.

The government seized four crates from his garage in the Sea Cliff neighborhood of San Francisco, but a fifth crate containing the Degas remains missing. Brugnara claimed that Long shipped the art to him as “a gift.”

Before Alsup allowed Brugnara to represent himself in early April, the defendant had been represented by a string of lawyers. Brandon LeBlanc of the federal public defender’s office, Brugnara’s initial appointed lawyer, was forced to withdraw after Brugnara testified under oath that LeBlanc had blessed a plan for him to keep the artwork involved in the case.

Replacement counsel, Oakland criminal defense lawyer Erik Babcock, was forced out of the case after witnessing Brugnara’s escape from the Phillip Burton Federal Building while the two were meeting to prepare for trial. Brugnara, apprehended in Los Gatos six days later, maintains that Babcock “green-lighted” his departure from the federal building to allow him to seek medical treatment.

Brugnara was briefly represented by Rosen Bien Galvan Grunfeld’s Jeffrey Bornstein, a partner at K&L Gates at the time. But Alsup allowed Bornstein to withdraw shortly after entering the case because of a “severe personal conflict in style” with Brugnara. Alsup arranged for Santa Rosa defense attorney George Boisseau to step in, but Brugnara opted instead to defend himself against charges of mail and wire fraud, making false declarations in court, contempt of court and escape.

With the defendant’s history of courtroom outbursts and potentially self-incriminating statements, Alsup didn’t take lightly the decision to grant Brugnara’s request. Alsup found Brugnara competent to act as his own lawyer after a two-day hearing laying out the potential dangers of self-representation. “While defendant frequently has outbursts and is confrontational in open court, these actions are part of his strategy of ‘persistence wears down resistance,’ as he himself put it,” wrote Alsup in an April 2 order. “Defendant is a forceful, pushy and demanding man who tries to bull his way through—but he is mentally competent and insists (correctly) that he is.”

Attorney James Stevens, who had been assisting on the case, was allowed to remain in a limited role as advisory counsel to Brugnara, and Alsup appointed Tamor & Tamor’s Richard Tamor to join Stevens in April.

At trial, Stevens and Tamor have largely been limited to whispering in Brugnara’s ear—and presumably seeing their advice ignored. At the end of the trial’s second day, Tamor told Alsup that if he were actually representing Brugnara, he would ask for a hearing to determine his competency to stand trial and represent himself.

“You’re the new kid,” Alsup told Tamor. “I’ve given it a lot of thought.”

DEFIANT DEFENDANT

By now, Alsup has a good deal of experience with Brugnara, who he sentenced to 30 months in 2010 for failing to pay taxes on $45 million in commercial real estate sales.

Brugnara’s escape from the federal courthouse earlier this year came after Alsup agreed to an unusual furlough arrangement that allowed Brugnara to leave to leave federal custody, put on street clothes and meet with Babcock in the court’s attorneys lounge. Babcock was required to escort Brugnara to and from the U.S. Marshal’s lock-up on the 20th floor and to keep Brugnara in sight at all times.

According to prosecutors, Brugnara defied that order on Feb. 5 when he eluded Babcock and hopped into an elevator that was going down to the lobby at the end of one of their meetings. Brugnara then took off on a sprint through the streets of San Francisco, according to prosecutors who added contempt of court and escape charges to those Brugnara already faced.

In his opening statement, Kingsley displayed a still image he said was taken from a security camera showing Brugnara running down Willow Street while wearing light pants and a dark t-shirt with a pi sign on it.

In his own opening statement, Brugnara insisted he absconded for medical reasons, declaring at one point, “I probably have cancer.” He also accused U.S. Magistrate Judge Nathanael Cousins of being in cahoots with the U.S. attorney’s office to keep him “locked up with murderers in Oakland” pretrial rather than letting him out on bail and called the government’s chief witnesses “two thieves.”

Brugnara talked through a string of government objections and ignored Alsup’s attempts to steer him back to the facts of the case.

Alsup cut Brugnara’s opening off before his 40-minute time limit. “Mr. Brugnara sometimes gets carried away,” Alsup told to the jury, asking they not hold Brugnara’s outbursts against him. But with the jury outside the courtroom on break, Alsup had a less tempered message for Brugnara: “If a lawyer gave that opening statement, they would be held in contempt.”

U.S. District Judge Jeremy Fogel, a former colleague of Alsup’s on the Northern District bench who is now the director of the Federal Judicial Center, said that it’s extremely rare to see criminal defendants go pro se in federal felony cases. During his 14 years on the federal bench, Fogel said he handled only two such cases, and one of those resulted in a guilty plea.

Fogel said that at each step in the process, a judge has to remind pro se defendants that they have a right to defend themselves, but that means they have to follow the basic rules of courtroom decorum. “[As a judge] your job is to provide a fair trial to everyone—not just the defendant but the government as well—and to give the jury the proper legal road map so they can make their findings of fact,” Fogel said.

Alsup attempted to keep Brugnara’s trial on track by helping the defendant formulate proper questions for witnesses and reminding the jury to focus on evidence coming from the witnesses. But Alsup’s patience ran thin during Brugnara’s cross-examination of art broker Rose Long on the second day of trial. Displeased with a response, Brugnara yelled, “That’s pretty much the case in a nutshell. She’s a liar.”

Later during the cross, Brugnara said that Long’s “cognitive process” was “impaired,” and he suggested she was a “front” for selling another dealer’s “fake art.”

After the witness and jury left for the day, Brugnara turned his ire on one of his prosecutors, assistant U.S. attorney Robin Harris.

“She should move to North Korea,” Brugnara said. “She’s dressed for it.”

Harris, who was wearing a business suit, said Brugnara was making a “mockery” of the court and making it impossible for the government to get a fair trial by talking over objections.

“If any attorney did what Mr. Brugnara did today, they’d be thrown in jail,” she said.

Alsup agreed. The judge said he’d “never seen such an abusive performance” as Brugnara’s cross-examination of Long, adding that she’d likely have some sort of “post-traumatic stress” as a result of the experience.

Alsup held Brugnara in contempt, adding 21 days to whatever sentence he might get if convicted by the jury.

“If I get reversed, so be it,” Alsup said. “I’ve done the right thing.”

IMAGE: U.S. District Judge William Alsup, Northern District of California

Hillary Jones-Mixon

For more on this story go to: http://www.therecorder.com/id=1202725294902/Disruptive-Defendant-Keeps-Testing-Alsups-Patience#ixzz3ZAxWCYXF