If anyone knows how to get the attention of Attorney General Eric Holder please give me a shout.
Federal judge Leon Holmes has rejected Alvin Clay’s motion for a new trial. If you have no idea what I am talking about you can find a brief summary here.
In his motion for a new trial, Clay argued that the government’s case was based entirely on the testimony of Donny McCuien, a witness who lied repeatedly under oath. Holmes didn’t deny that the egregious McCuien lacked credibility. At trial, McCuien was eager to please his puppet masters and his lies were blatant, constant and frequently bizarre. McCuien insisted that he had no experience buying or selling homes bought or sold homes or doing rehab work. When Clay did his own investigation post-trial he turned up a long list of McCuien’s victims eager to testify that the seasoned con man had scammed them on real estate deals and had spent most of his professional life doing rehab work.
The government could easily have discerned that their main man was an ignorant psychopath—but that would have meant dropping their case against Clay. So they crossed their fingers and hoped the truth wouldn’t come to light.
Judge Leon Holmes also rejected Clay’s argument that his attorneys were derelict for not discovering the truth about McCuien pre-trial.
You may be asking how a federal judge can refuse to grant a defendant a new trial when the credibility of the government’s only meaningful witness disintegrates utterly. Holmes dodged the bullet by arguing that, even without McCuien, a reasonable jury might have convicted Clay simply because he was peripherally involved in transactions that were clearly illegal.
The same could be said for the buyers, sellers, bank officials, title companies and appraisers who signed off on the Neely-McCuien deals—but they aren’t being prosecuted. All these folks could have discovered they were being lied to if they had asked the right questions. Nobody asked the right questions because they didn’t want to lose a pay day.
You could indict the one hundred people closest to Bernie Madoff on conspiracy charges and argue that they must have known what was going on. In some cases you might even be right. But would the federal government get such a case by a grand jury without a single witness? And if they did, would a jury buy their case?
Unfortunately, the answer to both hypothetical questions is yes. The government could indict Madoff’s associates and they could probably get convictions.
The Clay case, like all document-heavy white collar cases, involved complex transactions. Everyone knew Ray Neely and Donny McCuien were guilty as hell. But when you move down the line of business partners the guilt by association equation gets increasingly complicated. How do you prove what a person does and doesn’t know.
The Clay trial was much like a physics professor writing a hopelessly complex equation on the blackboard and asking his freshman students if they thought the value of “x” is five or seven. Greeted by blank stares, the professor says, “Let me give you a hint; I am your professor, I trained at MIT, and I think x = 7.”
A jury faced with a complex paper case will almost always side with the government unless they have a strong personal identification with the defendant. That wasn’t going to happen in a case involving twelve white jurors, two white Assistant US Attorneys, a white judge and a black defendant with two black attorneys.
Once a jury decides to side with the US government their decision becomes an undisputed fact.
It is appropriate that Judge Holmes’ ruling was issued on the same day the US Supreme Court ruled, by a slim 5-4 margin, that prison inmates have no constitutional right to DNA testing. An Alaskan inmate wants the rape kit examined to see if it contains his DNA. He is willing to pay for the examination out of his own pocket. But John Roberts and four other justices don’t want undisputed scientific facts undermining the authority of jury decisions.
It is also appropriate that Judge Holmes’ Clay decision was issued along with Ayatollah Ali Khamenei’s authoritative pronouncement that the election in Iran was fair and accurate. The system produced this result and the system must not be questioned. A jury convicted Alvin Clay and Leon Holmes is loath to question their authority.
Of course a reasonable juror could have decided that Alvin Clay was guilty even though the government failed to produce a single witness tying him to the crime alleged in the indictment. But how do we know the jury would have done so?
The question is purely hypothetical. Since juries side with the government in 97% of federal cases it is always possible that “a reasonable jury” would buy the government’s line in the absence of credible evidence.
I decided to blog about the Clay case because it touches on virtually everything that is wrong with the criminal justice system. In the process, Alvin Clay became a personal friend—but in the beginning that didn’t figure.
Let’s take a quick whirlwind tour of the issues and events surrounding this case.
- This is a case of vindictive prosecution that began in 1999 when the federal government was prosecuting a confidential informant for blowing the whistle on a bogus drug bust. The government, represented by AUSA Bob Govar, was taking the cop’s word even though the CI who worked closely was saying the man was hopelessly corrupt. There was no upside to the CI’s recantation and he stuck to his guns even when the government, desperate to avoid a potentially embarrassing trial, offered a sweetheart plea agreement. Alvin Clay defended his client by exposing their bizarre commitment to a clearly fraudulent drug bust.
- Alvin Clay ran afoul of the US Attorney’s office a second time when he went to the wall for a pathological scam artist. Clay wasn’t convinced of his client’s innocence, but the government had broken the law in prosecuting her and Alvin wasn’t going to stand for that. Clay was forced to withdraw from the case and wasn’t even allowed in the courtroom to monitor the government’s behavior.
- It was in the context of highly charged conflict that Clay’s name came to the attention of the very AUSA’s who were prosecuting Clay’s former client.
- The Neely-McCuien scam never would have been investigated if Clay’s name wasn’t associated with it. Neely was of interest only because of his association with Clay. This is why the government was willing to offer Donny McCuien a sweetheart deal for pointing the finger at Clay and why the government virtually dropped the charges against Ray Neely. The feds couldn’t try Neely without putting the disgraced Donny McCuien on the stand. In short, the government had no interest in the men who clearly perpetrated an illegal scam—they wanted to nail the guy who was messing up their legal workshop.
- While all of this was unfolding, the FBI was refusing to prosecute one of the most egregious police corruption scandals in Arkansas history. A Lonoke County lawman with a history of dirty dealing was accused of farming out jail inmates to county residents, stealing prescription medications and even running a personal meth lab. Meanwhile, the cop’s wife was feeding booze and drugs to inmates in exchange for sex. Bob Govar, the AUSA who first took an interest in the Neely-McCuien scam, was one of the local residents who broke the law by using inmates to work on his property. Govar served as a character witness for the crooked cop and threatened a local newspaper editor who suggested that he had used his influence to keep the FBI from investigating the case.
- The Bureau was depleting its limited resources by investigating people like Alvin Clay. Rodney Hays, the newly minted FBI agent assigned to investigate the Neely-McCuien imbroglio, failed to recognize that McCuien was a certified con artist. Hays believed every word McCuien uttered because he needed McCuien to bust Clay so he could keep the boys at the US Attorney’s office happy.
- Rodney Hays indicted Clay by passing McCuien’s lies to a grand jury. When it became obvious that McCuien was twisting the facts, Hays failed to inform the grand jury that he had given them false information.
- There is strong evidence that Hays has used illegal tactics in an unsuccessful attempt to coerce witnesses to testify against Alvin Clay.
- AUSA Steven Snyder inherited the case when the Eastern District of Arkansas was recused in order to remove the appearance of vindictive prosecution. Snyder simply dropped the elements of the case based on Rodney Hays’ perjured grand jury testimony and moved forward without asking why the federal government had a compelling interest in such a Mickey Mouse prosecution. Snyder didn’t want to earn the enmity of his counterparts in the Eastern Division by dropping the charges against Clay.
- Judge Holmes refused to characterize the Clay case as vindictive prosecution because Bob Govar testified that he had no role in presenting the case to a grand jury. When transcripts surfaced proving that Govar was lying, Holmes stuck with his ruling.
Leon Holmes knows that AUSA Bob Govar lied about his role in the Clay prosecution. Holmes knows that Rodney Hays knowingly lied to a grand jury. Holmes knows that Steven Snyder’s use of McCuien’s testimony at Alvin Clay’s trial amounts to suborning perjury (any fool could see that McCuien was untrustworthy and Snyder is highly intelligent). Judge Holmes knows that if he granted a new trial the government would be forced to drop all charges against Alvin Clay because they can’t put the discredited Donny McCuien back on the stand. Nonetheless, in order to preserve the sanctity of the jury system, Judge Holmes is refusing to hold the FBI and the US Attorney’s office accountable.
I repeat, if anyone knows how to get the attention of Attorney General Eric Holder, give me a shout.