Alvin Clay took the witness stand today in a tense confrontation with his accusers.  U.S. Attorney Steven Snyder, sparking with righteous indignation, spent several hours lighting cigarettes, playing with matches and rubbing sticks together.  The idea was to convince his all-white jury that a few whiffs of smoke translate into the great balls of fire promised in his opening remarks.

Nothing would catch.  The courtroom got a bit hazy a time or two, but there was never a hint of fire.

Alvin Clay was composed an confident.  He established eye contact with the jury and employed a frank and respectful tone throughout.  Defense attorney Ron Davis made a few vague references to vindictive prosecution, but he was shut down in mid-sentence by Mr. Snyder.

The government shuns embarrassing questions because it doesn’t have any good answers.

• Why has the government hitched its wagon to a man who lies when the truth would sound better?
• Why has the government spent five years and a million dollars in pursuing an innocent man?
• Why did the government initiate an investigation of Alvin Clay before they had any evidence of wrongdoing?
• Why has the government used the threat of pain and the promise of relief to suborn perjury from its star witness?
• Why did FBI agent Rodney Hays lie to a judge to get a search warrant and perjure himself before a grand jury to get an indictment?
• When the Eastern District of the US Attorney’s Office was forced to recuse itself from this case; why did the Western District pick it up?

I could go on, but you get the idea.

Alvin Clay started the day talking about his childhood, his education and his early interest in real estate.  He told the jury that he obtained a contractor’s license because he wanted to rehab affordable housing for low income tenants; a way of doing well by doing good.  He talked about meeting Ray Nealy and why he trusted a man who was unworthy of his trust.  He talked about his hands-off management style and why he will be far less trusting in future.

Clay frustrated Steven Snyder by refusing to defend his negligent behavior.  “The buck stops with me, whether I knew what was going on or not,” he said.  “At the end of the day I have to take full responsibility for what happened.”

But asked if he was guilty of engaging in the conspiracy cited in the indictment, Clay was adamant.  “My intent was to do a legitimate construction transaction,” he told Mr. Snyder.  “I absolutely did not know that any fraudulent activity was being done by Ideal Mortgage [Ray Nealy’s operation].”

When Snyder tried to suggest that Clay had misrepresented his intentions to title companies by submitting invoices for work which was never performed, Clay refused to take the bait.  He had been informed that the rehab work had been completed, he said, and he believed these representations.  “The invoices were not false or phoney,” Clay told Snyder.  “What was phoney was the applications submitted by Ideal Mortgage.”

Clay repeatedly pointed out that the invoices, though made out in his name, were actually created by Ray Nealy.

Clay admitted that he had been far too trusting of Ray Nealy and Donny McCuien and that he should have personally inspected the worksites to make sure that all the work was being completed.

Curiously, Clay’s trust in Donny McCuien is currently mirrored by the government; but with one important difference.  Clay believed McCuien before the man had shown his propensity for lies and larceny; the government believed the man after his deep flaws were a matter of public record. 

This isn’t a case of the government being snookered by a snake oil salesman; it’s a case of the government telling the salesman what kind of snake oil to sell.  The message is simple: “Don’t lie to us; lie for us.”

By the end of the day, Steve Snyder was lighting matches like a man possessed, but to no avail.  He asked Clay why he had failed to mention Clay Construction on a list of companies he owned when he filed for bankruptcy in 2001.  Clay answered quietly that the company had yet to transact a dime’s worth of business and had therefore slipped his mind.  He had no sinister reason for leaving Clay Construction off the list since it had no effect on his financial situation.

When Ray Nealy poked his head in the door and told Clay that another deal had closed, the Little Rock attorney wanted to see three things: the invoice, the check and the HUD 1 (a document signed by all parties at closing).  If the dollar amount on these three documents matched up, Clay was satisfied.  The HUD 1 form showed him that the terms of the transaction were acceptable to the buyer, the seller, and the lender.  If they were satisfied, Clay was satisfied.

Next, Clay would take Donny McCuien to Simmond’s Bank, write himself a cashier’s check for the amount he was owed, and a second check for McCuien.  He would then make a copy of both checks and staple them to the appropriate invoice so his financial man could write an accurate 1099 for the IRS stipulating how much money each man received.  This was his usual way of doing business because it ensured that the federal government would have a clear paper trail.

“I have held myself out as a hardworking attorney,” Clay told the jury.  “Not perfect, but not the sort of person who would be involved in these kind of shenanigans.  The hardest part has been knowing that I didn’t do what the government has accused me of doing.  There are aspects of the government’s investigation that have frankly been improper.”

The jury never heard Clay elaborate on this theme; Steven Snyder immediately objected and Judge Leon Holmes sustained the objection.

Snyder landed a few glancing blows, he never connected with a solid punch.

Shortly after 3:30, the defense rested and Judge Holmes dismissed the jury.  First thing tomorrow both sides will make their closing statements and the jury should have the case my 10:00.  We could have a verdict by noon, and will almost certainly have one by the end of the day.

Can 12 white men and women understand that the government hasn’t got the lightest idea what transpired between Ray Nealy, Donny McCuien and Alvin Clay?

Can they grasp the fact that only two witnesses know for sure if Mr. Clay was in on the conspiracy; Donny McCuien and Clay himself? 

Donny McCuien took the stand and insulted the jury’s intelligence.  Every other word he spoke was a lie and the government knows it.

Alvin Clay took the stand today and gave a credible and consistent explanation of his relationship to Nealy and McCuien.  His testimony throughout was consistent with what we have heard from other witneses; it possessed the simplicity of truth.

If the government really had to overcome the presumption of innocence their cause would be hopeless.  If they really had to prove guilt beyond a reasonable doubt I would already be celebrating.  Unfortunately, the government’s burden is remarkably low.  They will argue that Clay should have known what was going on.   They will ask the jury to make an educated guess based on common sense.

White folks trust the government.  Twice as many white Americans supported the invasion of Iraq as black citizens.  A few months into the conflict, the gap had widened further.  White Americans believe the criminal justice system is fundamentally fair; most African Americans do not.  White Americans love to bash the government, but when it comes to security issues they are loyal patriots.

In a criminal case, an all-white jury will tend to support the government unless a defendant can prove innocence beyond a reasonable doubt. 

Two facts should doom the government’s case: (a) they need Donny McCuien to connect Clay to a conspirary; (b) Donny McCuien is a pathological liar.

Tragically, a jury is perfectly capable of finding Alvin Clay guilty even if they are convinced of both ‘a’ and ‘b’.  Only 5% of federal trials end in acquital.

That said, I have never seen the federal government put on a weaker case than we have seen in the first six days of this trial.  Nor have I seen a more eloquent, persuasive and savvy defendant than Alvin Clay. 

If you are the praying kind, please pray for Alvin Clay, his family and his friends.

If you ain’t the praying kind . . . please make an exception in this case.