Eight days after his June trial, Alvin Clay and his attorneys filed a motion for a new trial. On Monday, November 24th, a hearing on that motion was held in the federal courthouse in Little Rock. Judge Leon Holmes was presented with a massive stack of evidence backing up claims made in this blog that Donny McCuien, the only witness tying Clay to the alleged conspiracy, repeatedly perjured himself on the witness stand.
The perjury was so blatant and so obvious that federal prosecutors either knew or should have known that their star witness was mangling the truth. Unless a prosecutor is unaware that perjury is being perpetrated, it is illegal to let a witness feed lies to a jury.
Prior to trial, the government sifted through hundreds of real estate deals handled by Clay Real Estate. Only the cases associated with Ray Nealy and Donny McCuien were even remotely tainted. The government also knew that dozens of Nealy-McCuien cases not involving Clay were clearly fraudulent. Finally, the government knew, or should have known, that their star witness, Donny McCuien, had been doing real estate deals involving rehab work prior to meeting Ray Nealy and long after Nealy, McCuien and Clay were indicted.
And yet, when McCuien testified that he had never performed rehab work on a single piece property, that he knew nothing about doing rehab work, that he never owned the tools of the rehab trade, and that, apart from one owner-financed transaction, he had never owned a single piece of property, Assistant US Attorney Steven Snyder sat grim-faced and silent.
In fact, AUSA Snyder consistently presented Donny McCuien to the jury as a hapless burger flipper.
The argument went something like this: Alvin Clay had to have known that Donny McCuien wasn’t doing rehab work on the properties in question. Only a fool could believe that a hapless burger flipper like McCuien was capable of buying and selling properties and doing rehab work. Alvin Clay is not a fool. Ergo, Clay was in on the scam.
The records Alvin Clay and his attorneys presented in federal court on November 24 demonstrate beyond a reasonable doubt that McCuien bought and sold dozens of properties, many of which were rehabbed before being flipped. He did this in association with Ray Nealy, he did it before he met Nealy, and he continued to do it after his relationship with Nealy was terminated.
In fact, McCuien was buying and selling properties at the very time he took the stand in 2008 and conned an all-white jury into believing he was an ignorant, unlettered burger flipper who couldn’t flip a property if his life depended on it.
If jurors had realized that Donny McCuien had been selling rehabbed homes, legitimately and fraudulently, for over a decade, would they have found it so hard to believe that Alvin Clay, like scores of other people, had sincerely believed that McCuien was doing the rehab work he promised to do.
True, Mr. Clay and a number of out-of-state lending institutions should have done more to convince themselves that McCuien and Nealy were acting in good faith. But neither Clay nor the bankers involved in these deals have been accused of negligence . . . at least not by the federal government. This morning, NYT columnist Thomas Friedman expressed his outrage at “some of our country’s best-paid bankers” who were “overrated dopes who had no idea what they were selling, or greedy cynics who did know and turned a blind eye. But it wasn’t only the bankers. This financial meltdown involved a broad national breakdown in personal responsibility, government regulation and financial ethics.”
Ultimately, “this financial meltdown” created Ray Nealy and Donny McCuin and seduced the federal government into one of the most ill-considered prosecutions on record. With so many knaves and fools to choose from, how did the federal government end up with Alvin Clay?
A second hearing is scheduled for the Little Rock courtroom of federal Judge Leon Holmes on January 6, 2009. How will Judge Holmes respond to these startling revelations? Will he grant Alvin Clay a new trial? Will he order the government to dismiss the charges against Clay? Will he discipline the government for suborning perjury?
We can only wait and watch. Judge Holmes appears to be a sincere person of faith eager to uphold the integrity of the judiciary. During Clay’s trial, Leon Holmes acquitted himself responsibly. Whether he will acquit Alvin Clay remains to be seen.
So why didn’t Alvin Clay bring these facts to the intention of the jury at the time of trial.
Clay repeatedly asked George Hairston, his lead attorney, to research McCuien’s professional history. To a limited extent, the avuncular attorney complied. Once he had enough evidence to show that McCuien was perjuring himself, however, Hairston lost interest in McCuien’s past. If he could prove that McCuien had done rehab work on a couple of properties, the Tennessee lawyer reasoned, the jury would see through McCuien’s pretense.
Unfortunately, it didn’t work that way. The all-white jury assumed that the government wouldn’t be prosecuting Clay if his hands were clean. In the absence of overwhelming proof of perjury, the jury would side with the government.
George Hairston was on the stand at Monday’s hearing, complaining about my blogging and suggesting that jurors (and possibly Judge Holmes himself) had been prejudiced against his client by my incendiary prose and by street demonstrations held in the course of the trial.
Federal judges don’t follow the dictates of bloggers. More importantly, Holmes was in the room when Hairston presented singularly inept closing arguments at the conclusion of a two-week trial. Holmes knows effective representation when he sees it, and Alvin Clay didn’t receive it.
I hestitate to criticize Mr. Hairston. He is a nice guy. The briefs he composed prior to trial were professional and well presented. Back in the day, Hairston was undoubtedly a fine attorney, and I am sure he has worked wonders for his clients on many occasions. But every fighter needs to know when its time to hang up the gloves, and George Hairston stayed in the ring one fight too many.
Thus far, I have received over a dozen faxes from Alvin Clay laden with gratuitous evidence of Donny McCuien’s criminal and professional past. More faxes will follow. But the evidence at bar is now quite sufficient to prove, to the whitest of all-white juries, that the United States has no case against Alvin Clay.