Judge Leon Holmes

Tomorrow morning I will be driving to Little Rock where, the following day, an attorney named Alvin Clay will attempt to convince a federal judge that he deserves a new trial.   (You can find the backstory here.)  

A reporter showed up on the final day of Clay’s trial six months ago and his conviction by an all-white jury was duly noted.  Casual readers of the Democrat-Gazette likely glanced at the story and smiled approvingly.  The FBI had nailed another small-time scam artist.  Message: the authorities have your back. 

The article failed to mention that Alvin Clay had been indicted for mortgage fraud in the midst of a highly contentious case in which the Little rock attorney accused the US Attorney’s office of flagrant misconduct. 

Readers never learned that Clay once brought a federal prosecutor to the brink of scandal.  A confidential informant admitted on the verge of trial that dozens of narcotics cases had been manufacturede out of thin air.  The informant’s honesty was rewarded with charges of perjury and obstruction of justice and a young attorney named Alvin Clay was assigned to his defense.  Clay defended his client by putting the federal government on trial.  Had the press been paying attention, Clay would have done serious damage to an assistant US Attorney’s credibility.

The mortgage fraud case against Mr. Clay has always been remarkably weak.  A mortgage broker named Ray Nealy falsified information on five loan applications.  A small-time construction contractor named Donny McCuien claimed to have performed rehab work on the properties that, in most cases, was never performed.  The government’s case against Nealy and McCuien is air tight.

Nealy and McCuien couldn’t pull off their scheme without convincing a long list of business partners that they were legitmiate businessmen.  For one thing, extensive rehab work can only be done in the state of Arkansas if you have a contractors license, something neither Nealy nor McCuien possessed.  Fortunately, Alvin Clay had a license, and his office was just down the hall from Nealy.  Clay didn’t have time to oversee rehab work; he was a hard-working attorney running a real estate firm with six agents.  Nealy told Clay that if he would let McCuien use his license he wouldn’t have to give the matter a second thought.

At least, that’s the way Alvin Clay tells it. 

It was also the way Donny McCuien told it when he first talked to federal agents.   The quick-thinking street hustler quickly ascertained three facts: (1) the FBI had little interest in Nealy and McCuien–they wanted Alvin Clay; (2) the feds wanted McCuien to tell them that Clay was in on the scam; and (3) McCuien would have to present himself to the jury as an ignorant burger flipper who had never held a hammer, weilded a saw or rehabbed a house. 

Donny McCuien never claimed that Alvin Clay had helped Ray Nealy file fraudulent loan applications.  McCuien couldn’t make this claim because, as he admitted at trial, he had never seen the applications.  All McCuien could assert was that Clay knew that no rehab work was being done.

The government’s argument to the jury went something like this: no one who met a bungling fool like Donny McCuien could have possibly believed that he was capable of doing rehab work; ergo, Alvin Clay had to have been in on the scam.

Nealy and McCuien made false representations to buyers, sellers, lenders and title companies, so why didn’t the government conclude that Alvin Clay was just another victim of two scam artists?  As a convicted felon, Alvin Clay would lose his law license.  Revenge, as they say, is a dish best served cold.  The Alvin Clay story is festooned with icicles from head to toe.

On the witness stand, Donny McQuien was rude, evasive, clueless and agitated.  But these traits were perfectly in accord with the government’s contention that McCuien was a hapless loser that no rational person could mistake for a rehab man.  On paper, McCuien was running a property management company when the five fraudulent deals went down, but McCuien insisted the company was a front created by the devious Ray Nealy.

In concert with the government’s wishes, Donny McCuien claimed at trial that he had never rehabbed a single property in his life.  He had never owned a single piece of property.  Heck-fire, he had never even owned the tools of the trade.

Clay’s defense team presented a series of rebutal witnesses who testified that McCuien had sold them carpentry tools or employed them to do rehab work. 

The jury was unimpressed.  Like virtually every all-white jury weighing the fate of a big black defendant (Clay is built like a middle linebacker) jurors couldn’t imagine that the federal government would spend hundreds of thousands of dollars to convict an innocent man.  No one wanted to believe that the federal government could be the final victim of a crude scam.

Since his conviction, Alvin Clay has been making the simple phone calls that could have cleared things up for the FBI a long time ago. We now know that McCuien was running real estate scams before he met Ray Nealy and continued this behavior long after he had been indicted by the feds.  Over the years, Donny McCuien has bought, sold and rehabbed dozens of Arkansas properties.

A few days ago, Clay stumbled upon a truly shocking piece of information.  Through the grapevine, Clay learned that McCuien had been congratulated by his pastor for getting a contractor’s license.  Clay called the Contractor’s Licensing Board of Arkansas and spoke to the board’s attorney.  He was told that in 2006 the state of Arkansas issued a contractor’s license to Complete Construction of Arkansas, LLC.  The company officers were: 1) Donny McCuien – President; 2) Donny McCuien Sr. – Vice President.

In other words, at the very time Donny McCuien was parroting back the government’s story on the witness stand, he held a contractor’s license and was president of a construction company. 

Why would a guy in such a compromised position tell a series of blatant lies to the FBI and an assistant US Attorney?

Two reasons.  First, McCuien knew he was only useful to the government if he told the story their way.  A single deviation from the script he had and he would be prosecuted to the full extent of the law.

Second, McCuien knew the federal government had no interest in undermining their own case.  Federal officials had no solid grounds for believing that McCuien was telling the truth or that Clay was lying.  They embraced the story that felt right. 

Is this kind of sloppy and vindictive prosecution a rarity in the federal system?  My experience suggests that it is far more widespread than is generally realized.  A vigilant US Attorney can stop this sort of nonsense dead in its tracks.  But what if the US Attorney isn’t paying attention, doesn’t care, or is part of the problem?

In the Colomb case, a wrongful prosecution was thwarted by a principled federal judge named Tucker Melancon.  On Tuesday morning, Judge Leon Holmes has an opportunity to show his shine. 

During his eight years in office, George W. Bush appointed 326 federal judges. In this week’s edition of Rollingstone, Judge Holmes is given the distinction of being one of Mr. Bush’s six most dangerous appointments.  Is this a fair assessment?  Holmes’ ruling in the Alvin Clay case should give us our answer.