A federal judge is reviewing Larry Fairfax's handwritten notes to determine if defense lawyers in Edgar Steele's murder-for-hire case are entitled to the material.
Judge B. Lynn Winmill said this morning that he erred when he ordered prosecutors to obtain the 238 pages of notes last week.
Prosecutors had objected to Winmill's request, saying they are not evidence under federal case law. Winmill now says he made a mistake.
But because Winmill forced prosecutors to obtain the notes, Steele's lawyer, Robert McAllister, argued they needed to be provided to the defense.
Winmill said today that he'll review the notes and give the defense relevant material. He said "relevant" will be defined broadly. Court is on an extended break while Winmill looks at the notes.
Assistant U.S. Attorney Traci Whelan agreed that because the material was now with the prosecution because of Winmill's order, the notes were subject to review.
"It's not something I want to see, but it's not something we can undo," she said.
Whelan said the notes contain Fairfax's thoughts on the case, his lawyer, his love for his wife and children, his concerns about how they'll survive financially and other personal matters.
Fairfax's lawyer, John Miller, emphasized that no one has been subpoenaed for the material. He said the defense mentioning the book in court without having even seen it as part of a tactic.
Miller said the notes are "really almost a diary."
"It's his daily rantings and ravings from the time he was arrested," Miller said.
He said the notes contain private thoughts, including prayers and opinions on Miller, Whelan and other court officials. "It should not have been reviewed by anyone," Miller said.
McAllister said he didn't subpoena the notes before trial because he didn't know they existed until Fairfax referenced them in cross examination last week.
"It's ironic that the government is using the writings of my client while in jail while attempting to convict him, then refusing to provide to me the writings of the main witness," McAllister said.
McAllister said Fairfax's notes about the case could be crucial to Steele's defense.
"I can't think of better material for impeachment than that," he said.