Clay will remain free pending appeal

Alvin Clay
Alvin Clay

Alvin Clay will be staying in the free world while he appeals his conviction.  Since his federal trial on mortgage fraud charges in the summer of 2008, the Little Rock attorney has decisively proven that the government’s star witness perjured himself repeatedly under oath. 

The evidence suggests that Donny McCuien and Ray Nealy conducted a small-time real estate scam and that Alvin Clay was duped along with a list of buyers and a variety of title and mortgage companies.  (When all the dust settled, the buyers in these deals were defrauded of a grand total of $16,000).  Two facts are now beyond dispute: (1) the government’s case against Clay was entirely dependent upon the testimony of Donny McCuien and (2) Donny McCuien isn’t credible under oath.

The government’s vindictive motivation in this case was exposed when Donny McCuien’s credibility began to unravel.  Instead of moving to vacate Clay’s conviction, the government cut a sweetheart deal with yet-to-be-prosecuted Ray Nealy even though they had mountains of damning documentary evidence against the man and no meaningful evidence at all against Clay.  The government couldn’t afford to put the now-discredited Donny McCuien on the stand. 

All of this has placed federal judge Leon Holmes in a sticky position.  Holmes didn’t want to embarrass the US Attorneys Office; but he didn’t think anyone should go to prison on the word of a character like Donny McCuien.  What to do?

Judge Holmes has done everything he could do to minimize the damage without placing himself in an adversarial position with the long list of federal prosecutors associated with this case (he’s got to work with these people, after all).  First, Holmes sentenced Clay to five months of federal prison time (it could have been five years).  Second, he granted Clay’s motion for release pending appeal. 

But Holmes didn’t stop there.  Here is the text of yesterday’s release order:

Clay presents eight issues that he believes are close issues or issues that could go either way and which, if ruled upon by the court of appeals in his favor, could result in the reversal of the conviction or a new trial. See United States v. Powell, 761 F.2d 1227, 1230-31 (8th Cir. 1985). The Court agrees that some of the issues presented by Clay are close. The Court also agrees that if decided in favor of Clay, those issues could result in the reversal of the conviction or a new trial. (my emphasis)

This wording is reminiscent of the Texas Court of Criminal Appeal’s ruling on the first round of habeas writs filed in the Tulia cases.  In effect, Holmes is signalling to the federal appeals court that they should give Alvin Clay’s case very careful attention.

Alvin Clay should be congratulated for his diligent pursuit of justice.  But all is not well.  As a convicted felon, Clay can no longer practice law.  Furthermore, he and his family have been forced to invest their scant resources in an expensive legal fight.

But if Judge Holmes had refused Clay’s motion, the Little Rock attorney would have been checking into a federal detention facility in Montgomery, Alabama early next week.  Now he is free to fight for his own freedom, and that’s very good news indeed!