Legal expert: ‘Glitch’ shouldn’t stop Kellogg murder-for-hire trial
26-year legal veteran assesses questions about evidence
November 4, 2010
Steamboat Springs — An FBI agent testified Monday that there's no auditory recording of an alleged murder-for-hire conversation that led to last month's arrest of Brooks Kellogg, but a prominent Denver criminal defense lawyer said that "glitch" — and other evidence questions — shouldn't prevent a trial.
"It's irrelevant," H. Michael Steinberg said Wednesday, adding that evidence mishaps are not unusual. "You're really left with the testimony of the undercover officer."
Steinberg said "in a sting operation," such as the Oct. 19 conversation in Denver International Airport between Kellogg and an undercover FBI agent posing as a contract killer, law enforcement officers try to gather as much evidence, or redundancy, as possible.
But mishaps happen.
FBI special agent Kenneth Jackson, of the bureau's Glenwood Springs office, described that Oct. 19 conversation on the stand Monday in U.S. District Court in Denver.
Denver lawyer Larry Pozner, who is representing Kellogg, questioned Jackson at length about the investigation leading to Kellogg's arrest, including the events at DIA.
Kellogg, 72, remains in custody in an Englewood federal detention center, on suspicion of trying to hire someone to kill a Florida man who settled for $2.5 million in a lawsuit against business entities owned by Kellogg and a Steamboat Springs business partner. Kellogg is a part-time Steamboat resident.
Jackson said airport cameras and FBI agents monitored Kellogg as he arrived on a flight and moved from Concourse C to Concourse A, where he met an undercover agent. Jackson said the conversation was transmitted to a Denver police office in the airport, where Jackson listened and took notes.
Jackson's court affidavit states that Kellogg met the undercover agent with $2,000 in his pocket "for additional expense money to commit the contracted killing."
The affidavit also states that the undercover agent said, "You're the customer here," and, "You want him killed?" to Kellogg, who replied, "Yeah."
But Jackson testified Monday that because of how the two men were seated during the conversation, the recording didn't take.
"The tape recording did not work," Jackson said.
Pozner made sure those in the courtroom heard that point. But Steinberg said the lack of a recording could be more show than substance.
"It's not an intentional destruction of evidence," Steinberg said. "It's a glitch, but it's nothing that I think the prosecution couldn't easily overcome."
Building a case
Steinberg, of the Law Office of H. Michael Steinberg in Denver, has more than 26 years of legal experience, including 13 years as a prosecuting district attorney in Douglas and Arapahoe counties. He's appeared on CNN and Fox News and comments about legal issues for other media outlets.
He said he's known Pozner for more than 25 years.
"Larry's a great lawyer," Steinberg said. "He's trying to throw as much at the case as he can."
Pozner also questioned Jackson on Monday about instant messages exchanged via computer by Kellogg and Barbara Blackmore, a 47-year-old Clifton woman and a former Oak Creek resident. Jackson said Kellogg and Blackmore met online in 2007 or 2008 and began a relationship that included expensive gifts from Kellogg and, in recent months, conversations leading up to the proposed contract killing.
Pozner noted that a key thread of messages cited in Jackson's affidavit was transmitted on a computer used by Blackmore but not obtained by the FBI.
Blackmore did not give up the computer.
"She said she gave it to a neighbor," Jackson said.
Jackson said the FBI saw that thread of instant messages "only by the agent viewing the screen," in Blackmore's presence, potentially raising questions about when and how the messages truly were sent.
"This is a case where what's on a computer screen is critical evidence," Pozner said in court.
Steinberg acknowledged that questions such as Pozner's could "start to pile up" and throw an investigation into question.
He also cited a saying he has used to describe Pozner.
"If you have a case that needs to be built on the side of a stone cliff, Larry will build it," Steinberg said Wednesday. "He'll build a ledge and a house, and he'll build a case. That's what he's doing here. … He's one of the best there is."
Steinberg noted, though, that Kellogg's defense would have to show an actual intent to destroy evidence to make those questions truly stand up in court.
"That's a very hard row to hoe for a defense attorney," Steinberg said. "To establish that it was intentional is very difficult.
"I don't think it will stop the case going to trial."
Steinberg speculated that the defense could argue entrapment, or the idea that Blackmore caused Kellogg to commit a crime he otherwise would not have committed.
"Entrapment is a very viable defense in a murder-for-hire case," Steinberg said. Kellogg "has got motive, but the question is whether he would have moved forward without her assistance."
Jackson stated that in Blackmore's conversations with Kellogg, Blackmore said her husband, "Rickie Strong," would act as the contract killer. On Monday, Pozner alleged that Strong had no knowledge of the murder-for-hire discussions and that Blackmore invented the "scam" as a way to secure more money from Kellogg.
Jackson acknowledged that deceit — and took it a step further.
"It was Ms. Blackmore, acting as Rickie Strong, who first raised the idea of killing Mr. Bunyard," Jackson said on the stand.
Kellogg, from Chicago, is the managing member of Chadwick Real Estate Group in Steamboat and owns the Old Pilot Building at 1041 Lincoln Ave. He also owns a home overlooking Rollingstone Ranch Golf Club.
He is charged with one count of use of interstate commerce facilities in the commission of murder-for-hire. If convicted, the U.S. Attorney's Office has stated, he could be sentenced to as many as 10 years in prison and fined as much as $250,000.
U.S. Magistrate Judge Kristen L. Mix ruled Monday that Kellogg was "a danger to the community" and would remain in custody, without bail.
U.S. Attorney's Office spokesman Jeffrey Dorschner said this week that a grand jury indictment would occur before Friday, when Kellogg is scheduled for arraignment at 10:30 a.m. in Denver.