Late report on Ganier's web searching leads to trial delay

Feds find Internet searches for 'Sundquist,' 'Fischer,' 'Jackie'

Email | Print By David A. Fox

08-02-2005 10:59 AM — The late production of an analysis of Al Ganier III's Internet searching led Judge Karl Forester Tuesday morning to grant a continuance in the trial that was to begin today in federal court here.

Much of the case concerning Ganier's Education Networks of America $106 million contract with the state and his alleged obstruction of an investigation into it revolves around information mined from computers seized by authorities several years ago.

Federal assistant attorney Eli Richardson informed Ganier's defense counsel, a Neal & Harwell team led by Aubrey Harwell, late Monday that its computer forensic investigator had just submitted a report detailing search terms that had been entered on three computers, two in the office of Ganier and one in his secretary's office. Among the search terms the investigator is said to have discovered are "TEMA," "Jackie," "Sundquist" and "Fischer." Among the names that earlier have surfaced in the case are Jackie Shrago, former governor Don Sundquist and Alex Fischer, who had served first as deputy commissioner then as commissioner of ECD under Sundquist. It was reported last week that federal prosecutors have found evidence that a romantic relationship existed between Ganier and Shrago, a former state education department official who had a role in ENA winning the contract to put Internet connection in Tennessee schools.

Harwell and co-counsel Tom Dundon argued that they should have had access to the new report well in advance of the beginning of the trial. They argued that the report should be considered expert testimony and covered by rules that require the presentation of evidence, and therefore the information should be excluded.

USA Richardson countered that the search terms are "probative." He also likened his team's discovery of the new information to fully searching through a box of printed documents – that each side had a fair shot at fully analyzing the data.

Judge Forester, who regularly presides in Lexington, Ky., found that the report could well be considered a scientific test, which would qualify it as expert testimony under Rule 16 and would have had to be presented to the defense. Saying that Rule 16 needs to be modernized, he granted the defense motion to dismiss the evidence.

The government has filed an appeal with the Sixth Circuit Court of Appeals in Cincinnati in hopes of being allowed to introduce the Internet search report as evidence.

No new trial date was set, as Judge Forester noted that the matter is not part of an "expedited process."

Earlier, it had been expected that First Assistant Attorney Zach Fardon would lead the government's prosecution in court. However, a prosecution he was involved with in Illinois when he was an AUSA in Chicago appears likely to demand some of his attention, so Richardson is leading the U.S. Attorney's trial efforts in the Ganier case, supported by criminal division chief Paul O'Brien.