If Alvin Clay is convicted by a Little Rock jury it will have a chilling effect on aggressive defense attorneys across the nation. This will be especially true for minority lawyers. If the government can cook up a bogus prosecution against any attorney it dislikes we are unlikely to see the kind of open and honest clash of ideas that justice demands. Defense counsel will be pulling their punches, fearful that the government might take offense and retaliate.
The government of the United States of America is making an example of Alvin Clay, a black Little Rock attorney who holds the prosecution to a high ethical standard. He was investigated by the Department of Justice and the FBI before there was the slightest hint of illegal activity. Gross misrepresentations of perjured testimony were used to obtain a search warrant and a grand jury indictment. Federal prosecutors Bob Govar and George Vena have repeatedly lied under oath in order to minimize their involvement in the prosecution of Mr. Clay.
Bob Govar handed the Clay case to George Vena because no other Assistant US Attorney was motivated to pursue a fishing expedition with no evidence of wrongdoing. Vena had that motivation.
In August of 2002, Alvin Clay was leaving the federal courthouse in Little Rock when a slender blonde woman in her mid-forties approached him and asked for his business card. Her name was Mary K. Edelmann.
Like Roy Lee Russell, Mary Edelmann was a troubled soul with a closet full of skeletons. She had already served one stretch in prison for fraud and was now facing federal charges. Edelmann was accused of having created a letter on the bogus letterhead of a high-profile bank stating that she had hundreds of thousands of dollars in assets to which she had no immediate access. The letter, the indictment said, had been used to induce a loan from a private individual.
It was quickly clear that Ms. Edelmann had a pathological streak. In prison she was a notoriously brilliant jailhouse lawyer who had helped several inmates with their cases. In the free world, Edelmann was drawn to larceny like iron filings to a magnet. A pathological liar, she lived for the game. When she wasn’t running a scam she was filing lawsuits against every authority figure that entered her world.
“Mary is a very gifted person in many ways,” Clay tells me. “She’s a talented legal researcher and has even done some work for the Rose law firm. She could have made legitimate money.”
Mary Edelmann had already fired two attorneys when she hired Clay. She was feeling abused and resentful. The last lawyer to work on her case had talked her into talking to US attorney Dan Stripling and FBI agent Sharon Dawkins. The theory was that playing snitch for the federal government was the only way Edelmann could avoid a stiff federal sentence.
Clay understood the strategy, but exposing a compulsive liar to agents of the federal government was a reckless plan. “These people take notes,” Clay explains, “and anything she said to them could be used against her in court.”
In the course of one meeting with the feds, Edelmann’s attorney accused her of lying. The allegation was likely true, but it placed Edelmann in legal jeopardy.
Clay filed an ineffective assistance of counsel motion against Edelmann’s former attorney. Next, he accused AUSA Stripling of prosecutorial misconduct. “They had wired Ms. Edelmann up in an attempt to get incriminating evidence on the man she had scammed with the bank letter. For the federal government that’s pretty standard practice, but they did it without talking to Mary’s attorney. You can’t do that.”
Mary Edelmann was now insisting that the government had offered her a deal in return for working as an informant and then reneged on the deal.
Dan Stripling and the FBI officer insisted that they had worked in concert with Edelmann’s attorney. But in the course of a rancorous hearing, Alvin Clay forced her attorney to admit that this wasn’t true.
Three days later, Dan Stripling was replaced by USA George Vena.
“The tension in the courtroom during the Russell trial was intense,” Clay tells me; “but things really got nasty in the Edelmann case. I’m always professional and courteous in my dealings with the prosecution, but if I see prosecutorial misconduct I’ll file the motion every time; I don’t care who my client is. The government needs to be accountable for its behavior.”
Clay filed a pre-trial motion to have the case dismissed.
Shortly after coming onto the case, George Vena approached Clay’s co-counsel, Darrell Brown and told him that Alvin Clay was getting too close to his client and needed to be careful in his representation of her.
The implication was that Ms. Edelman’s accusations were embarrassing the government and Clay was making no attempt to discourage her.
At a hearing in 2006, Darrell Brown was asked how he interpreted Mr. Vena’s message.
“Ms. Edelmann had made some very serious allegations concerning the US Attorney’s office and other persons who were investigating the case,” Brown testified. “And needless to say, some of those allegations were disturbing to the US Attorney’s Office, to Mr. Vena and others who were involved in that case. And I took that to mean that those allegations, if they were coming from Mr. Clay, he felt perhaps were either unfounded and that it could lead to other things.”
Asked to elaborate, Brown said that that the allegations Clay was making against the government in the Edelmann case made even Brown, Clay’s co-counsel cringe because, “If those allegations were true, then there needed to be some further investigation undertaken.”
With these concerns in mind, Brown talked to Clay about the aggressive nature of his representation. “I frankly felt some obligation to also alert Mr. Clay that this was ground that he needed to be very careful about for his own well-being,” Brown testified. “If you ask me whether or not I had some concerns that Mr. Clay and his profession was in jeopardy, I could say yes.”
It didn’t take long for US Attorneys George Vena and Bob Govar to prove Darrell Brown right. Alvin Clay had played a minor role in a real estate deal in which Ray Nealy had been defrauded by a man in New Jersey. Nealy immediately contacted the FBI and asked them to investigate.
It wasn’t long before Rodney Hayes, a freshly minted FBI agent out of Oklahoma, contacted Nealy. Hayes and the FBI weren’t interested in helping Nealy recoup his business losses; but they were very interested in his association with the notorious Alvin Clay.
The FBI had been embarrassed by the Roy Lee Russell fiasco even more than the US Attorney’s office.
When questions are raised about an officer of the court, the normal procedure is to call in the attorney in question, lay out the concerns and ask for an explanation. Govar and Vena didn’t do that. Instead, they contacted Kenny Wright, the roly-poly accountant who had written1099s for subcontractor Donny McCuien a few weeks earlier.
Kenny Wright immediately contacted his attorney, Mark Leverett who accompanied his terrified client to the US Attorney’s office on July 1, 2003. Wright could only tell his lawyer that the feds had questions about “Ray Nealy and something involving mortgages.”
George Vena assured Leverett that Wright wasn’t under investigation. So long as he proved cooperative he would be immune from prosecution.
When Alvin Clay’s name entered the conversation, Leverett informed Wright that, as a friend of Clay, he wouldn’t be able to represent him further in the matter.
Kenny Wright wasn’t sure what the government was looking for, but he did his level best to give it to them. There was just one hitch: Wright knew practically nothing about the five real estate deals in question. Everything he thought he knew was based on inaccurate second-hand information that would eventually force the government to drop most of the charges against Clay.
Wright told George Vena that Clay Construction wasn’t a real company, that no rehab work had been done on any of the five properties, that the value of all the properties had been inflated and that Donny McCuien hadn’t received anywhere near the amounts reflected in the 1099s. None of this was true. McCuien didn’t tell the government that he was responsible for recruiting buyers and sellers and for doing rehab work on the properties.
On the other hand, no one ever asked.
A quick phone call to the appropriate state office would have informed the FBI that Clay Construction was a real company. Unfortunately, the government made no attempt to verify the accuracy of Wright’s testimony. Less than 72 hours after providing false information to the government, Kenny Wright entered Alvin Clay’s office accompanied a plain-clothes FBI agent wearing a wire.
In mid-January, 2004 the FBI raided Alvin Clay’s office confiscating business records and computers. Only then did George Vena hand Clay’s case over to another prosecutor.
In other words, while George Vena was prosecuting the Edelmann case, he was digging up dirt on his legal opponent. Asked why he didn’t recuse himself from the case, Vena testified that it was his responsibility to “look into the matter.”
Vena then testified that he and Bob Govar had never addressed the propriety of investigating a legal opponent.
Judges rarely ask questions in the course of hearings, but Judge Leon Holmes couldn’t let this one go. “Did you say there is no impropriety whatsoever in doing it?” he asked.
“No impropriety,” Vena replied.
At the behest of Govar and Vena, FBI agent Rodney Hayes began interviewing everyone associated with the five real estate deals Donny McCuien and Ray Nealy had arranged. He talked to buyers, sellers and employees who had worked with either Nealy or Clay.
Donny McCuien consistently minimized his role in the real estate deals, suggesting that he had entered the process only toward the very end. Rodney Hayes told the grand jury that Alvin Clay had written checks to Donny McCuien but suggested that McCuien received only a small portion of the almost $80,000 cited in the 1099s. Hayes didn’t get that from McCuien. In fact, Hayes knew that McCuien had received every penny of the money he was owed and Hayes knew it–he had the checks.
Grand jurors were led to believe that Clay had received over $133,000 when he had really received only $55,000. After paying off an outstanding debt to Ray Nealy, Clay realized a modest return of $35,000 on five real estate deals.
Agent Hayes’ perjury was blatant and unrelenting. He knew what he was doing. More importantly, Bob Govar knew that his star witness was lying and made no effort to challenge his testimony or to correct the record.
This was Rodney Hayes’ first big case. He knew what the government was looking for, and he was determined to give it to them.
On March 16, 2004, the government forced Alvin Clay to resign as Mary K. Edelmann’s attorney. When Clay attended a hearing in the Edelmann case, the government attempted (unsuccessfully) to have him barred from the courtroom. The animus was obvious.
Two years later, testifying at a hearing related to the Clay case, US Attorney Bob Govar admitted that he could recall only one other case in twenty-six years on the job in which a defense attorney was conflicted out of a case because he was under investigation.
On June 1, 2004, five months after Alvin Clay’s office was raided, a grand jury began hearing testimony and five months later, Alvin Clay and Ray Nealy were indicted. His work done, George Vena finally turned the case over to another prosecutor.
In 2007, with the Clay-Nealy case scheduled for trial, Rodney Hayes told George Hairston, Clay’s lead defense attorney, that discovery materials were ready for review. Hayes didn’t realize that he had inadvertently given the defense access to the grand jury transcripts from 2004.
These documents demonstrated that Bob Govar had played a major role in presenting the case to the grand jury, repeatedly asking questions designed to help jurors connect the dots.
On one occasion, Govar asked Hayes a series of questions designed to convince grand jurors that Alvin Clay couldn’t possibly have done the rehab work he was hired to do. Did Clay Construction have any equipment, Govar asked. Did Clay Construction have any employees?
Both men knew that Clay had subcontracted the work to Donnie McCuien, but they kept that critical piece of information from the grand jury.
In fact, Hayes, Govar and Vena shielded grand jurors from any evidence inconsistent with their unsustainable theory. The grand jury process was one long perjury pageant. Virtually every allegation against Clay named in the indictment has since been withdrawn. Had Hayes, Govar and Vena restricted themselves to provable fact it is doubtful that an indictment could have been obtained against Alvin Clay.
The grand jury transcripts contained the field notes Rodney Hayes had taken during his initial interviews along with the summaries of these notes US attorneys had assembled. A comparison of the two documents revealed that prosecutors had frequently twisted witness comments to sinister effect.
Shortly after raiding Alvin Clay’s office, Rodney Hayes interviewed his former secretary Jeron Marshall. “Alvin is a good attorney,” Marshall said. “If he felt it was questionable, he would do something about it. He worked hard for his license.”
The grand jury heard a slightly different version of this remark: “Clay is a good attorney and if he felt that he was doing something questionable, he would do something about it. Clay worked hard for his law license.”
At a pre-trial hearing, defense attorney George Hairston instructed agent Hayes on the difference between the statements. The first statement would have suggested to the grand jury that Marshall “knew nothing about Alvin being involved in any of the stuff that she had told you about, she was being interviewed about, the allegations in this case?”
The second statement suggested that Clay did know what was going on and was troubled by it.
Jeron Marshall had already admitted to the government that she was aware that Ray Nealy was falsifying information on mortgage applications. She was trying to tell Hayes that Alvin wasn’t party to this wrongdoing, but Hayes didn’t want to listen, nor did he want the grand jury to be privy to this critical fact.
Jeron Marshall has always made it clear that Alvin subcontracted the rehab work to Donny McCuien and that Clay was unaware of anything illegal. Waiting to testify at a hearing, a member of Clay’s legal team struck up a conversation with Clay’s former secretary. Marshall was upset that Clay had fired her and she thought it was his responsibility to take care of her legal bills. Still, she insisted that her former employer had been kept in the dark.
Marshall told the attorney that she had been terrified when federal agents raided the office. She was alone at the time and was afraid that she would be arrested. “Jeron and I sat in the foyer and talked for more than 2 hours,” the attorney tells me. “She said she didn’t believe that Alvin knew anything about the deals because he didn’t handle the paperwork.”
To date, not a single witness has testified that Clay had any direct involvement in preparing fraudulent mortgage applications.
When George Vena and Bob Govar received a list of questions defense counsel wished to ask them under oath, they dodged the bullet by recusing the entire Eastern Division of Arkansas and turning the prosecution over to the Western Division.
It wasn’t long before Steven Snyder, the federal prosecutor assigned to the case in 2007, had issued a superseding indictment scaling back the government’s allegations considerably. Clay was no longer accused of filing false invoices, inflating the value of properties or even of splitting up the proceeds with Ray Nealy. The indictment made it clear that Ray Nealy was the primary actor. Alvin Clay’s primary crime had been scaled back to consenting to the filing of fraudulent loan applications.
Although the government’s original allegations against Clay have been reduced to rubble, the Little Rock attorney is still in deep legal jeopardy. If the government can convince the jury that Clay knew what Nealy was up to, the Little Rock attorney will be convicted of fraud.
In the five year trajectory of this case, Bob Govar, George Vena and FBI agent Rodney Hayes have repeatedly lied to magistrates, grand juries, and a federal judge without serious consequence. A big part of the reason is the federal judge assigned to the Clay case. Prepare to be amazed.