The new USA PATRIOT Act has brought into being an unprecedented merger between the functions of intelligence agencies and law enforcement. What this means might be clearer if we used the more straightforward term for intelligence–that is, spying. Law enforcement agents can now spy on us, “destabilizing” citizens, not just noncitizens. They can gather information with few checks or balances from the judiciary.
-Patricia J. Williams, November 8, 2001.
Public policy train wrecks are driven by group madness. Even highly intelligent people stop thinking critically as hard work and dogged determination are chained to a lunatic purpose.
Consider the peculiar groupthink that gave us the invasion of Iraq . . . or the government’s wrongful prosecution of Alvin Clay.
Attorney Bob Govar. Govar hired state prisoners to clear his property but swears he didn’t know it was illegal. Does anybody believe a veteran federal prosecutor could be that ill-informed?
Nonetheless, while it seems likely that Govar broke the law, it is difficult to prove beyond a reasonable doubt what he knew and did not know. When personal freedom is on the line there is no room for educated guessing. The case could not be proven, so no charges were filed. That’s the way the system is designed to work.
Only Alvin Clay can know for certain whether he knew that fraudulent applications were being faxed to lending institutions. Clay says he had no idea. At the time he was pursuing careers in law and real estate and lacked the time or the inclination to monitor Ray Nealy’s business practices.
The explanation is elegant in its simplicity. It cannot be disproven. And yet Alvin Clay is going to trial next Tuesday morning.
In the early days of 2007, you may recall, Clay’s attorneys stumbled upon grand jury transcripts showing that perjured testimony had been twisted to obtain a bogus indictment.
Suddenly, the prosecution of Alvin Clay became a high stakes game the government couldn’t afford to lose. Alvin Clay had to be destroyed by any means necessary.
Three years after his indictment, Alvin Clay was trying to inject some normalcy into his chaotic existence. In early 2005, three months after being indicted, he sought refuge in an ill-considered marriage. His new wife wanted to live in a large urban center, so Clay bought a home in Houston. When the closing date arrived the marriage was over. Abiding by the terms of the divorce settlement, Clay allowed his wife to occupy the home on the condition that she would eventually buy it in her own name.
He stayed on in Houston for 18 months, flying back to Little Rock only when his legal work demanded it.
Despite his unhappy marriage and the stress associated with the indictment, Clay tried to stay socially active. He met a woman in Little Rock in October of 2007 and the two would date when Alvin was in town. He was also dating occasionally in Houston. His two social worlds were entirely separate and, unprepared for another long-term commitment, Clay preferred it that way.
Then it started.
On March 1, 2007, a Houston woman Clay had briefly dated received a phone call from a woman claiming to be Clay’s ex-wife. The woman refused to see Alvin again and wouldn’t discuss the details of the call she had received.
“How could my ex-wife get this woman’s phone number,” Alvin asks. “I was guarding my privacy very closely at the time. I had an unlisted, unpublished number that I only divulged to friends. I hadn’t contacted my ex-wife since we separated.”
A day later, Clay’s Little Rock girlfriend also received a disturbing call. A practicing attorney, she had the presence of mind to take notes.
“May I speak to Mr. Clay,” the voice said.
“I’m sorry, but he’s not here.”
“Can you tell me when he will be in?”
“I’m not sure because he doesn’t live here.”
The voice wanted to know how long she had known Clay, where she met him, and the nature of their relationship.
“We’re friends,” she said.
The questions kept coming.
“Has Mr. Clay ever asked you to deposit any money?”
“Do you know which banks Mr. Clay has accounts with?”
“Do you know anything about Mr. Clay’s construction company?”
“No, I don’t.”
“Do you know anything about Mr. Clay being indicted?
“Would it shock you if I told you Mr. Clay is married?”
“We’ve never discussed the nature of his marital situation.”
The caller identified himself as an agent with the Little Rock FBI office.
A month later, shortly after depositing some substantial insurance checks in her bank, she received a second call.
“Did Mr. Clay give you $325,000 to deposit for him?”
“No. He’s never given me any money. We’ve never even exchanged lunch money.”
The voice repeated asked her to come into the Little Rock FBI office for an interview.
“I told you I don’t know anything about Alvin’s case or personal business,” she replied. “I don’t have anything to tell you.”
“Rodney Hayes had to be behind both of those calls,” Alvin insists. “No one in my social world knew this woman-we had just started seeing each other. The FBI could have learned about her banking information by issuing a subpoena, but where was the probable cause? If they used a wiretap or an inside source at the bank they were breaking the law.”
It wasn’t long before one of Alvin’s workout buddies got a call asking if he knew that Alvin’s girlfriend had deposited a large sum of money in her bank account. He was then asked if he had ever held money for Alvin.
In May of 2007, everyone associated with the Clay case was exposed to an embarrassing line of questioning from Clay’s legal team. The Eastern Division of the Attorney General’s office recused itself from the case and it was assigned to Assistant U.S. Attorney Steven Snyder with the Western Division. Within days the harassment campaign accelerated noticeably.
A second woman Clay had dated in Houston got a call from a woman claiming to be Alvin’s ex-wife. The caller claimed that Alvin had AIDS, that he had been indicted by the federal government, and that she was going to testify against Alvin at trial.
A month later, Alvin’s Little Rock girlfriend picked up the phone and heard a recording of Alvin talking to another woman.
Only someone with a tap on Alvin’s phone could have made such a recording, and that meant the FBI. No one else had either the motive or the opportunity. “They were trying to separate me from my social network,” Alvin explains. “Agent Hayes knew that I didn’t have a steady source of income because my office was closed. If he could turn my closest friends against me, he could reduce me to a homeless person; people without resources and basic necessities are ill equipped to withstand the full weight of the government. It was pure psychological warfare; he wanted to break me.”
Next, Alvin’s girlfriend in Little Rock received a call, purportedly from the health department, informing her that Alvin had AIDS. Not surprisingly, she wasn’t reassured until he was tested and showed her the negative results.
Then she got a call from someone claiming to be one of Alvin’s clients. He said Alvin owed him $5,000 and he wanted his money. When Alvin called the number the caller had left, a confused former client insisted that he had never called Alvin’s girlfriend.
In late September of 2007, one of Clay’s business partners in Houston received a voice message from an unidentified woman. “We understand that you are getting ready to pay money to Alvin Clay,” the message said, “and we are advising you not to pay Mr. Clay, because he has taken money from a lot of people and because he is a felon.”
Shortly thereafter, FBI agent Rodney Hayes contacted the man with some follow-up questions. “The only way the FBI could have traced me to this man,” Clay says, “is by taping my cell phone or infiltrating my email. Both were illegal because there was no evidence of illegal activity.”
In October of 2007, a woman called Alvin asking if he would represent a relative in a guardianship matter. Days later, she was contacted by an unidentified caller advising her not to give Clay any business because he had been suspended from the practice of law after being indicted.
The Eastern Division of the Arkansas U.S. Attorney’s office may have been bumped off Clay’s case, but they clearly wanted back in. Assistant U.S. Attorney, Pat Harris, Bob Govar’s replacement as chief of the criminal division, was deeply involved in this effort, as was FBI agent Rodney Hayes and an ATF agent named David Oliver.
The government’s interest was piqued when Clay got a call from Dan Caffey, a defendant in a state drug case. The state’s case was based on the uncorroborated testimony of a confidential informant who wanted to recant his testimony. Alvin took a statement from the informant, recording it as a precautionary measure.
Almost immediately, the feds picked up the case against the Caffey brothers. When Alvin attempted to play the tape it had been erased.
In September of 2007, a colleague told Clay that one of his clients claimed that Pat Harris and David Oliver had played him a taped conversation between Clay and the informant.
How did Harris and Oliver get their hands on a tape recording of a private and privileged interview? By this time, Clay was sending complaints to the Department of Justice in Washington as each new outrage was perpetrated.
In February of 2008, AUSA Pat Harris asked Nigel Caffey if he had personal knowledge of Alvin Clay giving anyone money for drugs. According to Caffey’s affidavit, he told Harris: “I don’t have any personal knowledge of attorney Alvin Clay being involved in any illegal drug activity, or any illegal activity of any kind.”
To date, six individuals have informed Clay that the feds had asked them f they had purchased drugs from Alvin. History suggests that Pat Harris, Rodney Hayes and David Oliver will eventually find defendants willing to perjure themselves at Alvin Clay’s expense. But what do they intend to do with this “evidence”? Will they make it available to the Steven Snyder (the prosecutor currently handling Clay’s case); will they try to indict Clay on fresh charges; or are they simply trying to pressure Clay into taking a plea bargain prior to trial?
In March of 2008, I was sitting in a Little Rock restaurant talking to Alvin Clay about his impending trial when a chirp from his cell phone signaled that a text message had arrived. The message named three men who were supposedly ready to testify at trial. “They all made statements about you stealing their money. You are going to the penitentiary where you belong.”
“Who are these people?” I asked. “Might they actually agree to testify?”
Clay shook his head slowly before answering. “One guy was supposed to get a cut of the profits in the Jermain Taylor fight I promoted, but the fight lost money. We settled out of court years ago. The others are clients I represented in drug case. They owe me money, and they know it. This is just Rodney Hayes trying to mess with my head.”
The Alvin Clay story may be ending where it began: with the federal government using perjured testimony to obtain false convictions in Operation Wholesale. If the feds drag narcotics allegations into the courtroom during Alvin Clay’s trial the wheel will have come full circle.
How hard will it be to convince a jury that a big black guy is guilty of selling drugs? Police officers, prosecutors and defense attorneys are unusually vulnerable to this sort of allegation because, thanks to the war on drugs, they spend an inordinate amount of time in the presence of drugs dealers.
But the federal government wouldn’t think of pressing that kind of a case against most public officials unless the evidence of guilt was overwhelming and the public was demanding action. So why are they so eager to tie Alvin Clay to the drug underworld?
Alvin Clay is an attorney but he is also a big, black guy. Convince a jury that the law degree is just a dangerous criminal using a clever front and a conviction is in the bag. The feds couldn’t do this to a white attorney, and they know it. But in a street fight you employ whatever weapon comes to hand. The government is so desperate to convict Alvin Clay that no tactic, no matter how illegal or patently racist, is off the table.
The Department of Justice has been apprised of every illegal move the feds have made-they have taken a hands off approach. Judge Leon Holmes is fully aware that the government committed perjury to obtain a bogus indictment-thus far he has refused to address the implications.
In the autumn of 1957, Central High School in Little Rock was the epicenter of an emerging civil rights movement. When black students signaled their intention to attend Central High, Governor Orval Faubus ordered the National Guard to surround the school, so only white students to enter the building. President Eisenhower responded by dispatching 101st Airborne Division paratroopers to Little Rock and placing the Arkansas National Guard under federal command.
As the eyes of the nation drifted from Little Rock and the military presence dwindled, life for the black students became almost unbearable. When school closed in the spring of 1958, exactly fifty years ago, Governor Faubus announced that the public schools would be closed until the feds backed down.
The Alvin Clay case ought to be ground zero for a new civil rights movement. The demons of the New Jim Crow haunt the courtrooms of America, but few have eyes to see them. Everything wrong with our criminal justice system is reflected in the tragedy unfolding around Alvin Clay.
Next week in Little Rock, the irresistible force of truth will go head-to-head with the immoveable object of state-sponsored injustice. On the morning of May 27th, I will walk the mile of sidewalk separating Central High School from the federal courthouse. I know most of you can’t drop everything and come to Little Rock to stand with Alvin Clay; but some of you can and I am praying that you will.