(Background on the Alvin Clay story can be found here.)

Our furled banner wreathed with glory

And though conquered we adore it

Weep for those who fell before it

Pardon those who trailed and tore it

 

 

On the fortieth anniversary of the night they drove Old Dixie down, a monument to the stars and bars was erected on the grounds of the State capitol building in Little Rock. In the glory days of Jim Crow it was finally possible to “pardon those who trailed and tore it.” Why not? By then, the forces of Reconstruction had been overthrown as surely as the Confederacy had been destroyed in 1865. Jim Crow was the almost as good as the Peculiar Institution-slavery by other means.

I happened upon this impressive monument this morning as I walked from Central High School to the new federal courthouse: “Arkansas remembers the faithfulness of her sons and commends their example to future generations.”

What do future generations make of this message? We can certainly admire the bravery of the Confederate soldiers and the grave dignity of Robert E. Lee; but can we forget what these men were fighting for?

As I walked to the courthouse this morning I once again passed by the statues of the Little Rock 9. Both fear and determination flicker in their eyes. No attempt was made to glamorize these kids; they were caught up in events they could only dimly understand and they knew it. The statues were unveiled in 2005, the year before the federal courthouse was dedicated-almost fifty years after Yankee soldiers returned to Little Rock in 1957.

Neither the Little Rock 9 statues nor the Confederate memorial were erected immediately after the events they commemorate. Cultures change, but at a glacial pace.

As I walked the final half mile to the courthouse the air was thick with ghosts. We have not arrived; our world remains in flux. We still live in the agonizing tension between Jim Crow and Dr. King’s dream. We have traveled far, but we have much further to go.

The racial contrasts in the courtroom were stark. Of the 54 potential jurors called, only three were African American. Pulaski County is two-thirds white . . . but still.

By early afternoon we were down to twelve white jurors and two white alternates. They didn’t look the slightest bit like Alvin Clay’s peers. On the positive side of the ledger, they fit the color scheme established by four white prosecutors, a white FBI agent, a white judge, a white court reporter, a white bailiff and several white security officials.

Alvin Clay and his three black defense attorneys were awash in a sea of white.

You notice things on foot that drivers miss. When I struck out from Central High School at 7:30 this morning, I was in an all-black world. The motorists, the folks rocking on unpainted porches, the young girls heading for school, the old man standing in front of Missionary Baptist Church–all were black.

I reached a hospital a few blocks later and everything changed. Now I was in a white world. The shift wasn’t gradual; it was like crossing an invisible line.

I’m not suggesting that men like Judge Leon Holmes or lead prosecutor Steven Snyder are driven by racial animus. Not in the crude, overt sense, at least. Snyder’s opening was devastating. He is a small man, about my height but twenty pounds lighter. He appears to be pushing 60, but his hair remains jet black. He almost never smiles-a fact that adds to the earnest effect. Molten righteousness smoldered in his eyes.

Snyder has mastered the art of the declarative sentence. Most prosecutors begin their opening remarks with equivocal phrases like, “I believe the evidence will show that . . .” Snyder told the jurors that Alvin Clay was guilty. Moreover, Clay is craven, greedy, heartless and wicked to the core. He said it with utter conviction; like a man convinced.

I can only imagine what the jury made of Snyder’s hour-long philippic. During voir dire (the jury selection process), Judge Holmes reminded the venire that an indictment is not evidence of guilt; that the testimony of a police officer should be given no more weight than the testimony of a civilian; and that respect for the flag should not dispose the jury in the government’s direction.

Nobody was buying. In fact, a few people even confessed as much. One woman allowed that she couldn’t help attaching a high degree of credibility to the testimony of a police officer because “I would figure that they had all the evidence.”

Another woman was disqualified for admitting that the mere fact of Clay’s indictment made her think he was probably guilty of something. “You can’t help but think there’s got to be a reason,” she said.

Every juror was thinking the same thing; they just knew they weren’t supposed to admit it.

Physical symbols are enormously powerful: a statue in honor of the confederacy, an officer’s uniform, the rough equivalence between the prosecution and the eagle on the Great Seal. The case is officially styled, “The United States vs. Alvin Clay.”

What true patriot wouldn’t be pulling for the United States?

Everywhere you look in the courtroom, the eagle is clutching an olive branch in one talon; a sheaf of arrows in the other. The United States government thinks Alvin Clay is guilty and the eagle is nodding in agreement. The courtroom layout tips juror loyalty in the direction of the government. Whatever pious niceties we repeat to ourselves during voir dire, this isn’t supposed to be a fair fight. That’s why the defendant loses 95% of the time.

The rulings from the bench fell consistently in the government’s direction. The prosecution is free to argue that Alvin Clay obtained his contractor’s license in furtherance of the conspiracy alleged in the indictment, even though Clay didn’t meet Ray Nealy and Donny McCuien until a year later.

The defense, on the other hand, cannot suggest that Alvin Clay is the victim of a vindictive prosecution. This is a major blow. As the honest juror said, there must be some reason why Clay is standing trial. If the defense can’t present their explanation, the natural assumption is that Clay must be guilty as charged. Why else would the government invest hundreds of thousands of dollars to put him away?

Just before lunch, the defense team got its first peek at the grand jury transcript. There wasn’t much time to digest it all, but a few facts leapt off the page. The present indictment is based entirely on the testimony of Rodney Hayes, the man who repeatedly perjured himself three years earlier. Hayes claims that Clay forged the signatures of the three references on his contractor’s application. A quick call to one of the women yielded an anguished response. “I told him I signed that thing,” she said.

When Judge Holmes learned that the government’s star witness was perjuring himself again, he told the government that they could only claim two forged signatures. Later in the day, a second signatory gave the lie to Hayes’ bizarre testimony. By tomorrow morning we will probably be down to one forgery. How blatant must the perjury become before Judge Holmes tosses the entire indictment? We may soon find out.

There’s a lot of open country between Dallas and Little Rock. Texarkana goes by in a flash, as does the once-famous town of Hope. The Little Rock metro area boasts just under half a million souls, but just over 180,000 live in the city, about 55% of them are white and 40% black. But in the older parts of town you don’t see many white faces.

Physically, the Central High hasn’t changed much since Dwight D. Eisenhower sent in the military to protect nine black students from a howling white mob fifty years ago. As high schools go, Central is an architectural marvel. Classic statues representing Ambition, Personality, Personality and Preparation peer down from the ornate façade. There’s a reflecting pool on the front lawn surrounded by limestone benches donated by alumni. In 1957, Central was a white institution in a white neighborhood.

Things have changed. The neighborhood surrounding Central High School appears to be over 80% black. A few of the older homes have white folks on the front porch; but not many.

The Little Rock Nine have evolved into home grown heroes-much like Rosa Parks in Montgomery, Alabama. Across the street from the school, a tiny national park has been erected in their honor. There’s even a visitor’s center to satisfy the curiosity of tourists (that’s where you can find me at 7:45 tomorrow morning). On one corner, an old gas station has been preserved in immaculate condition as if time had stood still. But glance down the street and you will see an Obama lawn sign right across the road from Central High School.

A few blocks away, Martin Luther King Blvd takes you across I-630 to the state capitol where a striking set of lifelike Little Rock Nine statues are prominently featured. Former Governors Bill Clinton and Mike Huckabee have worked hard to associate their names with these public memorials.

On the opposite side of the state capitol, another statue celebrates the heroism of “The Confederate Women of Arkansas, whose pious ministrations to our wounded soldiers soothed the last hours of those who died for the object of their tenderest love.”

This statue was erected by the State of Arkansas and the Confederate Veterans.

The horrendous suffering of the Civil War explains why federal troops were so deeply resented by Little Rock residents in 1957-“the war of northern aggression” had not been forgotten.

The federal courthouse where Alvin Clay’s trial begins tomorrow is a few blocks down from the state capitol. It’s a spanking new facility, erected in 2006, two years after the government of the United States used perjured testimony to secure a fraudulent indictment against Clay.

Everyone wants to know why I am walking the 1.8 miles (I measured this afternoon) between Central High School and the federal courthouse tomorrow morning. Have I contacted the media? Have I made placards? Have I devised a nifty chant?

No I haven’t. If I have some company tomorrow I will be pleased; but I’m not trying to draw attention to myself or grab a cheap photo opportunity. If I end up walking alone, that’s just fine. I am making this walk because I need to. The accomplishments of 1957 were remarkable, but I need to remind myself that the battle lines have shifted dramatically in past fifty years.

The Little Rock Nine scored a smashing victory and we are right to honor them. But the new civil rights movement, when it comes, will not be about segregated schools, drinking fountains, buses and lunch counters; it will be about our broken criminal justice system.

Prosecutors at the state and federal level are largely unaccountable. In an abstract sense, we all ascribe to the principle of equal justice under law. But in the concrete world, it is commonly assumed that the folks protecting us from the bad guys should be as nasty as they wanna be.

I am not suggesting that all federal prosecutors are rogues.  It’s just that, when they choose to misbehave, they get a pass.  In some circles, the willingness to engage in underhanded behavior is highly prized.

The government has asked federal judge Leon Holmes to bar any mention of vindictive prosecution from the courtroom. If the government gets its way, none of the crimes and misdemeanors I have catalogued in my seven-part series will reach the ears of jurors.

And the government will almost certainly get its way.

I received a lot of hate mail over the long weekend.  People can’t believe that Alvin Clay could have been indicted if he wasn’t guilty. My critics seem willing to stipulate to everything I have alleged against the government; they just don’t care.

You know Clay is guilty; the reasoning goes, because the government wants to convict him. And since Clay is guilty, the government is justified no matter how many laws are broken and no matter how many constitutional principles are ground into the dust.

Friends of Justice was similarly vilified when we stood up for the Tulia defendants, the Colomb family and the Jena 6.

As I passed by the federal courthouse late this afternoon, I noticed the inscription on the cornerstone: “United States of America: George W. Bush, president, 2006.”

Within a few months of the building’s completion, United States Attorney Tim Griffin, (the highest ranking law enforcement official in Eastern Arkansas) had resigned in the wake of allegations that he had suppressed black votes in the Florida general election in 2000. It has subsequently come to light that Griffin was the genius behind the Swift boat Veterans for Truth episode in 2004. His latest assignment is digging up dirt on Barack Obama.

The previous United States Attorney, Bud Cummins, was fired to make room for the president’s hatchet man.

Griffin has never been asked to answer for his actions.  He never will be.

This time tomorrow, I will be reporting on the first day of Alvin Clay’s trial.  Please stay tuned.

Alan Bean

 

Alvin Clay is an innocent man and federal prosecutors can’t prove otherwise. But the government’s criminal behavior in this case has been gross, obvious and persistent. Vindictive federal officials investigated Clay when there was no evidence of guilt; they committed perjury to get Clay indicted, and when their bogus indictment unraveled, they unleashed a campaign of dirty tricks to bring Clay down. Sadly, little of what follows will be allowed into the federal courtroom when Mr. Clay goes to trial on May 27th.

The Clay fiasco is best envisioned as a three-ring circus.

The center ring involves the details of a vindictive prosecution: investigation without evidence of wrongdoing, indictment-by-perjury, and illegal smear campaign.

Ring three features a strange story from Lonoke County in which Bob Govar, the federal prosecutor who inspired this mess, reveals his vindictive temperament and proves to be much more vulnerable to guilt-by-association prosecution than Alvin Clay).

In ring one we find Operation Wholesale, a remarkably corrupt undercover operation that, thanks to Alvin Clay, brought Bob Govar, the US attorney’s office, and the FBI within a whisker of national scandal.

Courtroom Collission

Alvin Clay is a brutally honest, broad-shouldered, hard-charging defense attorney.

For thirty years, Bob Govar has served as a federal prosecutor. Until recently, he was chief of the criminal division of the US Attorney’s office, Eastern Division, in Little Rock, Arkansas.

Eight years ago, Govar and Clay collided in a federal courtroom in Little Rock. Bob Govar was trying to salvage a massive drug sting dubbed “Operation Wholesale”. The idea was to use a black cop and a black informant to nail fifty black drug suspects in central Arkansas. After the big roundup, the confidential informant confessed that the sting had degenerated into a scam to defraud the federal government: three-quarters of the cases were pure inventions.

The undercover cop stood by the sanctity of the operation.

Ethically, the government had no choice but to scrap every indictment associated with Operation Wholesale. Instead, Bob Govar decided to salvage two dozen cases in the hopelessly tainted cop claimed to have witnessed the deal.

The informant was charged with perjury and obstructing justice and Alvin Clay was assigned as defense counsel.

The defendant could have accepted a plea deal for eight months, but he took his case to trial because he didn’t want to accept sole responsibility for a corrupt operation. He was convicted and sentenced to ten years of hard time in a federal penitentiary.

It was obvious to any sensible observer that Bob Govar was sacrificing innocent black defendants to save the government from acute embarrassment. One defendant proved he was incarcerated at the time of the alleged deal. Charges were dropped. Another defendant had an affidavit from the informant saying the deal didn’t happen. A clergyman produced documentary evidence that the house trailer mentioned in the police report wasn’t moved to the property until months later. Nonetheless, a jury convicted.

In the course of a four-day trial, Alvin Clay accused the government of prosecutorial misconduct in the furtherance of an inherently racist drug investigation.

Fortunately for Bob Govar, the media gave his office the benefit of the doubt. But Bob Govar knew that Alvin Clay’s impertinence had brought the U.S. Attorney’s Office and the FBI within a hairsbreadth of disaster.

Suborning Perjury

Two years later, Alvin Clay accused the government of prosecutorial misconduct in second case. Bob Govar called in the FBI to investigate his impertinent rival. There wasn’t much to work with. Clay ran a real estate agency as well as a law office-but there was no evidence of wrongdoing.

A quick investigation revealed that Clay’s contractor’s license could be connected to five suspect real estate deals. At the time, Clay had been working a full roster of legal cases while supervising six real estate agents. He had received a modest fee for allowing a subcontractor to use his contractor’s license. None of the witnesses interviewed linked Clay to illegal activity.

Govar and his subordinates obtained a grand jury indictment by portraying Alvin Clay as the mastermind of fraudulent operation. FBI Agent Rodney Hayes left grand jurors with the false impression that Clay was directly responsible for performing rehab work-no mention was ever made of a subcontractor.

Hayes testified that Clay and his co-conspirators had inflated the appraised value of the properties-a patent falsehood.

He testified that Clay Construction “wasn’t a real company” when he knew it was.

He testified that Donny McCuien played only a minor role towards the very end of the process when McCuien was intimately involved from the beginning.

He told the grand jury that Clay hadn’t paid McCuien as much as the IRS 1099s suggested. In fact, Hayes knew that Clay had paid McCuien every penny of the money he owed him.

Much of this testimony came in response to questions posed by Govar. Both men were willing to feed the grand jury a diet of lies if that’s what it took to get an indictment: garbage in-garbage out.

When Clay’s defense team cried foul, Govar denied that he had played a role in presenting the case to the grand jury. Judged Leon Holmes took the chief of the criminal division at his word.

Cover-up in Lonoke County

When grand jury transcripts proved that Govar was lying; Holmes wrote it off as an innocent error.

Bob Govar and the Eastern Division of the US Attorney’s office were quietly recused from the case and the Western Division dropped the false charges from the indictment. The new indictment tacitly acknowledged that Clay’s role was peripheral. He was now charged with knowing that his co-defendants were up to no good.

While this legal fiasco was playing out in the federal courthouse in Little Rock, a parallel drama was unfolding in nearby Lonoke County.

Jay Campbell was one of several public officials Bob Govar had shielded from the consequences of their actions over the years. After being fired from the Pulaski County (Little Rock) Sheriff’s Department in 2000, Campbell was elected Lonoke police chief. Six years later, the roof caved in on Campbell and his wife Kelly. In addition to a laundry list of drug-related crimes (buying, selling and using) Jay Campbell was accused of hiring out state prisoners for personal profit.

Campbell’s well-heeled customers included his old friend Bob Govar. A man with thirty years experience as a federal prosecutor said he didn’t know it was illegal to hire inmates to clear his land.

DA Lana McCastlain begged the FBI to investigate this impossible tangle of criminal allegations but she was rebuffed. Garrick Feldman, editor of the Arkansas Leader accused Govar and the FBI of knowing that an overburdened district attorney would lack the resources to shift the investigation in their direction.

Bob Govar reacted to Feldman’s challenge the same way he reacted to Alvin Clay’s persistent allegations. In an email written on the official stationery of the U.S. Attorney’s office, Govar accused Feldman of damaging his professional reputation. After threatening to sue the feisty editor for $50 million, Govar said he looked forward to owning the Arkansas Leader.

Garrick Feldman forwarded the email to Govar’s superior and the Govar was immediately demoted from his position as chief of the criminal division.

Govar couldn’t make his malice toward Feldman stick. Alvin Clay wasn’t so lucky.

The weight of history

The Alvin Clay case shows how easily bad public policy translates into human misery. Men like Bob Govar don’t prosecute low-status black drug defendants while shielding their influential white counterparts because they are bigots; they are just trying to protect the dignity and prestige of the federal government from the absurdities of the war on drugs. When men like Clay and Feldman threaten to bring down an exceptionally fragile house of cards they must be dealt with.

The Clay case shows why ideologically rigid people make poor candidates for the federal judiciary.

Judge Leon Holmes won congressional confirmation by the slimmest of margins. Questions during the nomination process focused on Holmes’ tendency to brand pro-choice activists as Nazis, denigrate feminists, and endorse the subordination of women.

Not enough attention was paid to Judge Holmes’ statements about race.

Judge Holmes believes fervently in the principle of racial equality. But he has referred to the “providential” impact of American slavery, he has suggested that civil rights activism becomes a negative influence when it loses the support of the white majority, and he has argued that the federal government lacked the authority to end the segregation of southern public schools.

Does Holmes believe that Arkansas Governor Orval Faubus was justified in fighting for a segregated public school system? So it appears.

Judge Holmes is typical of a generation of educated white southerners who affirm the principle of racial equality while celebrating their southern heritage. To a man like Judge Holmes, Alvin Clay’s allegations, however well grounded, have a subversive ring.

Fortunately, Judge Holmes is driven by a passionate desire to do the right thing. Whether good intentions can override profoundly conservative instincts remains to be seen.

Unmonitored Domestic Surveillance

The Alvin Clay case shows the tragic consequences of reducing judicial oversight over domestic surveillance. For the past eighteen months, the FBI has used a tap on Alvin Clay’s phone to spread suspicion, dissension, heartache and confusion throughout his entire social network.

Clay’s day-to-day experience reads like a Hollywood screenplay. The allegations would read like a psychological thriller if they weren’t so carefully documented.

Friends old and new, intimate and casual, professional and private, have received intrusive calls from FBI operatives. Federal agents have disguised themselves as Alvin’s ex-wife, as former business partners, and as drug defendants. Girlfriends have been informed that Alvin is HIV positive (untrue), and that he is a convicted felon (also untrue).

A girlfriend received a phone call consisting of an intimate tape recorded conversation between Clay and another woman.

Potential clients have received calls warning them not to hire Clay and his debtors have been dissuaded from paying their debts.

Psychological Torture

In recent months, six drug defendants have informed Clay that agents with the FBI, the ATF and the US Attorney’s office have been pressuring them to implicate Clay in some form of drug crime. It is natural to assume that dozens of equally compromised individuals have received the same treatment.

It is not unusual for drug suspects to receive this carrot-and-stick, “I-can-be-your-best-friend-or-your-worst-enemy” treatment from federal agents. It’s a form of crude psychological torture that often induces the victim to say whatever it is the government wants him to say. It’s a recipe for wrongful prosecution.

Ever since Bob Govar was recused from the Clay case, the federal government has unleashed its full fury against Alvin Clay. In the process, dozens of innocent people have been traumatized in a failed and futile attempt to manufacture a crime against an innocent man.

A simple process of elimination identifies the FBI as the prime mover in this campaign of illegal surveillance. No one else has either the authority or the ability to do this kind of mischief.

Is this dirty tricks campaign illegal or merely immoral?

The ravages of 9-11, the invasion of Iraq, and the murky provisions of the Patriot Act have severely undermined standards of accountability in the intelligence world. The moral lines have blurred and patriotic Americans like Alvin Clay are routinely treated like enemy combatants.

An Invitation

This is not the first dark night of the American soul, nor will it be the last.

Fifty years ago, the first black student graduated from Little Rock’s Central High School. Governor Orval Faubus responded by shutting down the entire public school system.

Alvin Clay’s May 27th trial coincides with the 50th anniversary of these events. On the first day of trial, friends of justice will be walking the mile of sidewalk between Central High School and the federal courthouse. Can you join us?

Dr. Alan Bean
Friends of Justice
817-457-0025
817-688-6765 (cell)
https://friendsofjustice.wordpress.com

The new USA PATRIOT Act has brought into being an unprecedented merger between the functions of intelligence agencies and law enforcement. What this means might be clearer if we used the more straightforward term for intelligence–that is, spying. Law enforcement agents can now spy on us, “destabilizing” citizens, not just noncitizens. They can gather information with few checks or balances from the judiciary.

-Patricia J. Williams, November 8, 2001.

Public policy train wrecks are driven by group madness.  Even highly intelligent people stop thinking critically as hard work and dogged determination are chained to a lunatic purpose.

Consider the peculiar groupthink that gave us the invasion of Iraq . . . or the government’s wrongful prosecution of Alvin Clay.

Attorney Bob Govar. Govar hired state prisoners to clear his property but swears he didn’t know it was illegal. Does anybody believe a veteran federal prosecutor could be that ill-informed?

Nonetheless, while it seems likely that Govar broke the law, it is difficult to prove beyond a reasonable doubt what he knew and did not know. When personal freedom is on the line there is no room for educated guessing. The case could not be proven, so no charges were filed. That’s the way the system is designed to work.

Only Alvin Clay can know for certain whether he knew that fraudulent applications were being faxed to lending institutions. Clay says he had no idea. At the time he was pursuing careers in law and real estate and lacked the time or the inclination to monitor Ray Nealy’s business practices.

The explanation is elegant in its simplicity. It cannot be disproven. And yet Alvin Clay is going to trial next Tuesday morning.

In the early days of 2007, you may recall, Clay’s attorneys stumbled upon grand jury transcripts showing that perjured testimony had been twisted to obtain a bogus indictment.

Suddenly, the prosecution of Alvin Clay became a high stakes game the government couldn’t afford to lose. Alvin Clay had to be destroyed by any means necessary.

Three years after his indictment, Alvin Clay was trying to inject some normalcy into his chaotic existence. In early 2005, three months after being indicted, he sought refuge in an ill-considered marriage. His new wife wanted to live in a large urban center, so Clay bought a home in Houston. When the closing date arrived the marriage was over. Abiding by the terms of the divorce settlement, Clay allowed his wife to occupy the home on the condition that she would eventually buy it in her own name.

He stayed on in Houston for 18 months, flying back to Little Rock only when his legal work demanded it.

Despite his unhappy marriage and the stress associated with the indictment, Clay tried to stay socially active. He met a woman in Little Rock in October of 2007 and the two would date when Alvin was in town. He was also dating occasionally in Houston. His two social worlds were entirely separate and, unprepared for another long-term commitment, Clay preferred it that way.

Then it started.

On March 1, 2007, a Houston woman Clay had briefly dated received a phone call from a woman claiming to be Clay’s ex-wife. The woman refused to see Alvin again and wouldn’t discuss the details of the call she had received.

“How could my ex-wife get this woman’s phone number,” Alvin asks. “I was guarding my privacy very closely at the time. I had an unlisted, unpublished number that I only divulged to friends. I hadn’t contacted my ex-wife since we separated.”

A day later, Clay’s Little Rock girlfriend also received a disturbing call. A practicing attorney, she had the presence of mind to take notes.

“May I speak to Mr. Clay,” the voice said.

“I’m sorry, but he’s not here.”

“Can you tell me when he will be in?”

“I’m not sure because he doesn’t live here.”

The voice wanted to know how long she had known Clay, where she met him, and the nature of their relationship.

“We’re friends,” she said.

The questions kept coming.

“Has Mr. Clay ever asked you to deposit any money?”

“No.”

“Do you know which banks Mr. Clay has accounts with?”

“No.”

“Do you know anything about Mr. Clay’s construction company?”

“No, I don’t.”

“Do you know anything about Mr. Clay being indicted?

“Not really.”

“Would it shock you if I told you Mr. Clay is married?”

“We’ve never discussed the nature of his marital situation.”

The caller identified himself as an agent with the Little Rock FBI office.

A month later, shortly after depositing some substantial insurance checks in her bank, she received a second call.

“Did Mr. Clay give you $325,000 to deposit for him?”

“No. He’s never given me any money. We’ve never even exchanged lunch money.”

The voice repeated asked her to come into the Little Rock FBI office for an interview.

“I told you I don’t know anything about Alvin’s case or personal business,” she replied. “I don’t have anything to tell you.”

“Rodney Hayes had to be behind both of those calls,” Alvin insists. “No one in my social world knew this woman-we had just started seeing each other. The FBI could have learned about her banking information by issuing a subpoena, but where was the probable cause? If they used a wiretap or an inside source at the bank they were breaking the law.”

It wasn’t long before one of Alvin’s workout buddies got a call asking if he knew that Alvin’s girlfriend had deposited a large sum of money in her bank account. He was then asked if he had ever held money for Alvin.

In May of 2007, everyone associated with the Clay case was exposed to an embarrassing line of questioning from Clay’s legal team. The Eastern Division of the Attorney General’s office recused itself from the case and it was assigned to Assistant U.S. Attorney Steven Snyder with the Western Division. Within days the harassment campaign accelerated noticeably.

A second woman Clay had dated in Houston got a call from a woman claiming to be Alvin’s ex-wife. The caller claimed that Alvin had AIDS, that he had been indicted by the federal government, and that she was going to testify against Alvin at trial.

A month later, Alvin’s Little Rock girlfriend picked up the phone and heard a recording of Alvin talking to another woman.

Only someone with a tap on Alvin’s phone could have made such a recording, and that meant the FBI. No one else had either the motive or the opportunity. “They were trying to separate me from my social network,” Alvin explains. “Agent Hayes knew that I didn’t have a steady source of income because my office was closed. If he could turn my closest friends against me, he could reduce me to a homeless person; people without resources and basic necessities are ill equipped to withstand the full weight of the government. It was pure psychological warfare; he wanted to break me.”

Next, Alvin’s girlfriend in Little Rock received a call, purportedly from the health department, informing her that Alvin had AIDS. Not surprisingly, she wasn’t reassured until he was tested and showed her the negative results.

Then she got a call from someone claiming to be one of Alvin’s clients. He said Alvin owed him $5,000 and he wanted his money. When Alvin called the number the caller had left, a confused former client insisted that he had never called Alvin’s girlfriend.

In late September of 2007, one of Clay’s business partners in Houston received a voice message from an unidentified woman. “We understand that you are getting ready to pay money to Alvin Clay,” the message said, “and we are advising you not to pay Mr. Clay, because he has taken money from a lot of people and because he is a felon.”

Shortly thereafter, FBI agent Rodney Hayes contacted the man with some follow-up questions. “The only way the FBI could have traced me to this man,” Clay says, “is by taping my cell phone or infiltrating my email. Both were illegal because there was no evidence of illegal activity.”

In October of 2007, a woman called Alvin asking if he would represent a relative in a guardianship matter. Days later, she was contacted by an unidentified caller advising her not to give Clay any business because he had been suspended from the practice of law after being indicted.

The Eastern Division of the Arkansas U.S. Attorney’s office may have been bumped off Clay’s case, but they clearly wanted back in. Assistant U.S. Attorney, Pat Harris, Bob Govar’s replacement as chief of the criminal division, was deeply involved in this effort, as was FBI agent Rodney Hayes and an ATF agent named David Oliver.

The government’s interest was piqued when Clay got a call from Dan Caffey, a defendant in a state drug case. The state’s case was based on the uncorroborated testimony of a confidential informant who wanted to recant his testimony. Alvin took a statement from the informant, recording it as a precautionary measure.

Almost immediately, the feds picked up the case against the Caffey brothers. When Alvin attempted to play the tape it had been erased.

In September of 2007, a colleague told Clay that one of his clients claimed that Pat Harris and David Oliver had played him a taped conversation between Clay and the informant.

How did Harris and Oliver get their hands on a tape recording of a private and privileged interview? By this time, Clay was sending complaints to the Department of Justice in Washington as each new outrage was perpetrated.

In February of 2008, AUSA Pat Harris asked Nigel Caffey if he had personal knowledge of Alvin Clay giving anyone money for drugs. According to Caffey’s affidavit, he told Harris: “I don’t have any personal knowledge of attorney Alvin Clay being involved in any illegal drug activity, or any illegal activity of any kind.”

To date, six individuals have informed Clay that the feds had asked them f they had purchased drugs from Alvin. History suggests that Pat Harris, Rodney Hayes and David Oliver will eventually find defendants willing to perjure themselves at Alvin Clay’s expense. But what do they intend to do with this “evidence”? Will they make it available to the Steven Snyder (the prosecutor currently handling Clay’s case); will they try to indict Clay on fresh charges; or are they simply trying to pressure Clay into taking a plea bargain prior to trial?

In March of 2008, I was sitting in a Little Rock restaurant talking to Alvin Clay about his impending trial when a chirp from his cell phone signaled that a text message had arrived. The message named three men who were supposedly ready to testify at trial. “They all made statements about you stealing their money. You are going to the penitentiary where you belong.”

“Who are these people?” I asked. “Might they actually agree to testify?”

Clay shook his head slowly before answering. “One guy was supposed to get a cut of the profits in the Jermain Taylor fight I promoted, but the fight lost money. We settled out of court years ago. The others are clients I represented in drug case. They owe me money, and they know it. This is just Rodney Hayes trying to mess with my head.”

The Alvin Clay story may be ending where it began: with the federal government using perjured testimony to obtain false convictions in Operation Wholesale. If the feds drag narcotics allegations into the courtroom during Alvin Clay’s trial the wheel will have come full circle.

How hard will it be to convince a jury that a big black guy is guilty of selling drugs? Police officers, prosecutors and defense attorneys are unusually vulnerable to this sort of allegation because, thanks to the war on drugs, they spend an inordinate amount of time in the presence of drugs dealers.

But the federal government wouldn’t think of pressing that kind of a case against most public officials unless the evidence of guilt was overwhelming and the public was demanding action. So why are they so eager to tie Alvin Clay to the drug underworld?

Alvin Clay is an attorney but he is also a big, black guy. Convince a jury that the law degree is just a dangerous criminal using a clever front and a conviction is in the bag. The feds couldn’t do this to a white attorney, and they know it. But in a street fight you employ whatever weapon comes to hand. The government is so desperate to convict Alvin Clay that no tactic, no matter how illegal or patently racist, is off the table.

The Department of Justice has been apprised of every illegal move the feds have made-they have taken a hands off approach. Judge Leon Holmes is fully aware that the government committed perjury to obtain a bogus indictment-thus far he has refused to address the implications.

In the autumn of 1957, Central High School in Little Rock was the epicenter of an emerging civil rights movement. When black students signaled their intention to attend Central High, Governor Orval Faubus ordered the National Guard to surround the school, so only white students to enter the building. President Eisenhower responded by dispatching 101st Airborne Division paratroopers to Little Rock and placing the Arkansas National Guard under federal command.

As the eyes of the nation drifted from Little Rock and the military presence dwindled, life for the black students became almost unbearable. When school closed in the spring of 1958, exactly fifty years ago, Governor Faubus announced that the public schools would be closed until the feds backed down.

The Alvin Clay case ought to be ground zero for a new civil rights movement. The demons of the New Jim Crow haunt the courtrooms of America, but few have eyes to see them. Everything wrong with our criminal justice system is reflected in the tragedy unfolding around Alvin Clay.

Next week in Little Rock, the irresistible force of truth will go head-to-head with the immoveable object of state-sponsored injustice. On the morning of May 27th, I will walk the mile of sidewalk separating Central High School from the federal courthouse. I know most of you can’t drop everything and come to Little Rock to stand with Alvin Clay; but some of you can and I am praying that you will.

 

                                 

 Woe to you, scribes and Pharisees, hypocrites!  For you tithe mint and dill and cumin, and have neglected the weightier matters of the law, justice and mercy and faith . . . You blind guides, straining out a gnat and swallowing a camel! (Matthew 23: 23, 24)

On May 25, 2007, federal prosecutor Bob Govar was questioned by Alvin Clay’s attorney, George Hairston.

Q.  The last time we talked you were chief of the criminal division?

A.  That’s correct.

Q.  You’re no longer chief?

 A.  No, sir.

Q.  Were you demoted, sir?

Federal prosecutor Steven Snyder had heard enough.  “Your Honor, I object.  I don’t think that has any relevance to this particular proceeding.  He wasn’t demoted for anything having to do with this case or this trial.”

“We don’t know that, Your Honor,” Hairston fired back.  “What we do know is there are reports and information which I would like to explore that he was demoted for a threat to a newspaper, using his office stationery.  I think that goes to credibility.”

Judge Leon Holmes wasn’t impressed–Bob Govar’s demotion was ruled out of bounds.

Unbound by the arcane rules of courtroom etiquette, I am free to explore the circumstances surrounding Bob Govar’s demotion.

Our inquiry begins in 1990, the year Bob Govar was asked to investigate allegations that District Attorney Don Harmon, a prominent drug war crusader, was a tax evader, a recreational drug user, and a drug dealer who traded cocaine for sexual favors. 

The federal government had been ignoring these allegations for years, but the ostrich approach was no longer feasible.  A prominent candidate was running for Sheriff of Saline County on the promise that Dan Harmon would be investigated. 

Jean Duffey, head of the 7^th judicial narcotics task force, had been sending Govar information on Harmon for years.  “We began to realize,” Duffy told a reporter in 1996, “that we were not ever going to be able to bring drug dealers’ cases to court without involving the public officials with whom they appeared to be involved.”

In other words, Dan Harmon was just an egregious case of business as usual.  Like the informant and the state trooper involved in the infamous Operation Wholesale, a long list of public officials learned how to supplement their modest incomes by feeding off the drug war. 

In June of 1991, U.S. Attorney Chuck Banks announced the results of Bob Govar’s investigation.  “Quite frankly,” Banks told reporters, “we found no evidence of any drug-related misconduct by public officials in Saline County.”

Exactly six years later, The Wall Street Journal made a sobering announcement:

“On Wednesday, the jury in Chief U.S. District Judge Stephen Reasoner’s Little Rock courtroom convicted former county prosecuting attorney Dan Harmon of using his office as a criminal enterprise to extort narcotics and cash, handing in guilty verdicts on five counts of racketeering, extortion and drug distribution.”

In the course of the trial, drug dealers testified that Harmon dismissed charges in exchange for large cash payouts. 

Women testified that charges had been dropped in exchange for sex. 

Harmon and Roger Walls (head of the 7^th Judicial District Drug Task Force) were charged with conspiring with a “cook” named Ronnie Joe Knight to manufacture methamphetamine.

Tina Davis testified that Harmon snorted a line of cocaine in front of her in his office.

Harmon’s ex-wife, Patricia Vaughn, testified that both she and Harmon were regular meth users.  “We smoked it,” she told jurors, “we used the needle . . . sometimes 10 or 12 times a day.”

Released on bail following the trial, Dan Harmon was re-arrested after he attempted to bring methamphetamine to a girlfriend’s apartment.  According to a report in the Arkansas Democrat-Gazette: “Confronted by the FBI, Harmon ran though the apartment complex and jumped into a pond with his clothes on.”

Methamphetamine is water soluble.

Oddly, the criminal acts alleged against Dan Harmon began a few months after Bob Govar’s initial inquiry absolved the prosecutor of all wrongdoing.  Can we really believe that Harmon went bad within days of receiving a clean bill of health?  Or was Govar’s investigation a pathetic cover-up?

Bob Govar pretended to see no evil in the Harmon case for the same reason he pretended to believe a thoroughly discredited state trooper named Clayton Richardson–it was about controlling public perception.

Dan Harmon’s credibility was first called into question in the late 1980s when he took over the investigation of the mysterious deaths of two young men near the Pulaski-Saline county line.  Tragically, the Train Deaths (as they came to be known) are so wrapped up in anti-Clinton conspiracy theory that it has become virtually impossible to distinguish fact from fiction. 

Some believed that Dan Harmon was responsible for the train deaths; some accused two police officers, Jay Campbell and Kirk Lane.  Others believed that all three men had a hand in the murders. 

While Harmon was investigating Campbell and Lane, Campbell and Lane were investigating Harmon.  Not surprisingly, both investigations came up empty.

When Pat Mastriciana, a Clinton-loathing conspiracy nut, linked Campbell and Lane to the train deaths, Campbell filed a libel suit.  Bob Govar joined a long list of police officers in singing Jay Campbell’s praises.  Govar and Campbell had been working narcotics cases together for years.

Govar went to bat for Campbell again in 2006 when his old friend was indicted for behavior that might have shocked Dan Harmon.  Campbell had served as Lonoke County police chief after being fired by the Pulaski County Sheriff’s Department in 2000.

When Charles McLemore, an officer with the Arkansas State Police, started investigating in Lonoke County, the allegations just kept multiplying.  McLemore reported “Irregularities, including drug use, sex, and personal use of prisoners to perform personal services for various individuals.”

Jay Campbell, it turned out, was using state prisoners to perform odd jobs on his own property and hiring them out to local residents, including the mayor of Lonoke and his own friend Bob Govar.

“Prisoner Andrew Baker disclosed that Chief Jay Campbell’s wife had a very close relationship with at least two of the [inmates],” McLemore reported.  “Baker disclosed that the chief’s wife, Kelly Campbell, had brought a fifth of vodka, a fifth of gin, and a fifth of Royal Crown” to the jail and shared it with inmates.

Prisoners who preferred marijuana to alcohol, Baker reported, were accommodated. 

According to a number of inmates, Kelly Campbell allowed pictures of herself to be taken in provocative poses with inmates and had engaged in sexual activity with her favorites “ten to twenty times” in and around Lonoke including “the Holiday Inn Express, the press box at the ballpark, the Campbell’s home on Cherry Street, and the chief’s office at the Lonoke Police Department.”

A long list of local residents reported that, after visits from Jay and Kelly Campbell, money, valuables and prescription medication turned up missing.  The natural explanation was that Jay and Kelly Campbell were addicted to pain killers.

Lonoke County District Attorney, Lona McCastlain knew she was in over her head when all this information was dumped on her desk

                                                   Lona McCastlain

Handsome and intense, McCastlain is a Republican, a rarity in Democratic Arkansas.  When I told her I worked with a criminal justice reform organization that intervenes in cases of official corruption, she smiled.

“If you’re looking for corruption,” she said, “you’ve come to the right place.”

“This was an appropriate case for the feds,” McCastlain told me.  “I handed it to the U.S. Attorney’s office on a silver platter. I took all the files I had and gave them to [U.S. Attorney] Bud Cummins.  He knew at that point that Govar was involved with the misappropriation of labor.”

Cummins seemed interested, but he told McCastlain she needed to talk to the FBI.  “They told me they’d get back to me,” she recalls.  “The next Monday morning they called and said that they couldn’t take the case.”

The reason: “The State Police had taped interviews and the FBI didn’t do that.”

McCastlain had no choice but to try the cases herself.  Big name lawyers had signed on to represent Campbell and his co-defendants and Campbell’s old friend, Judge John Cole of Saline County, was coming out of retirement to try the case.

“Judge Cole and Jay were backslapping the first day of trial,” McCastlain recalls.

Moreover, as had been true when the feds prosecuted Dan Harmon, most of the potential witnesses were alleged drug dealers and prison inmates.  “You can’t win cases like this when you have that kind of witnesses,” McCastlain told me.  “I am glad I tried this case; but I shouldn’t have done it.  It was too much for me.”

                                                   Jay and Kelly Campbell

Shortly after the Campbell’s were convicted, Garrick Feldman, editor of The Arkansas Leader, wondered aloud why the outgunned prosecutor had being forced to go it alone.

                                                                   Garrick Feldman

In an editorial called “Why didn’t the feds take this case?” Feldman posed the obvious questions.  “Did the Campbell’s have friends in high places who protected them from federal indictments–specifically, a good friend in the U.S. attorney’s office  who has received favors from Campbell, and an FBI agent who knows him well?”

“Two law enforcement officials have told us,” Feldman continued, “it was improper for a deputy U.S. attorney named Robert Govar to let Lonoke prisoners clear his land before he built his house in Lonoke.”

But what really bothered Feldman was Govar’s testimony at trial: “He in effect became a character witness when he testified that Campbell had a wonderful family.  The jury wasn’t impressed.”

An enraged Govar tapped out a strange email on government stationary.

“I just wanted you to know that I will be engaging the services of the best libel lawyers I can find to sue you,” Govar said.  “Your article, ‘Why didn’t the feds take this case?’, in the April 25, 2007 issue of The Leader contains lies which damage my professional reputation. 

“You will be receiving a letter from them soon which will provide more details.  I hope you and some of your ‘sources’ have fifty million dollars but, if you don’t, take good care of my newspaper.”

Feldman forwarded Govar’s email to U.S. Attorney, Tim Griffin and Bob Govar was summarily demoted.

“My parents survived the holocaust,” Feldman told me when we chatted in his office.  “The communists put my family in jail before I came to this country.  And he thinks he’s going to intimidate me with that nonsense?  That was a drunk writing an email at 11:30 in the morning when he’s already drunk; and then he sobers up and wishes he hadn’t written it.”

Govar’s ill-fated email, naturally, became the subject of Feldman’s next column.

“Robert Govar of Lonoke–formerly chief of the criminal division in the U.S. attorney’s office in Little Rock who’s now been demoted–threatened to sue me last week over a column I wrote about him and his buddy Jay Campbell, the crooked cop who was sentenced to 40 years in prison, along with his wife Kelly, who received a 20-year sentence.”

“He thinks we’ve ruined his reputation because we wrote he’d been hanging out with Campbell too long,” Feldman wrote.  “A lot of people think Govar sullied his reputation long before we wrote about him.”

“In their heyday, Campbell and Govar were both known as bullies as they worked together on various criminal investigations.  ‘Two peas in a pod’–that’s how a law-enforcement official characterized the pair when he heard about Govar’s ridiculous email.”

Feldman ended the column with high praise for Tim Griffin.  “But Griffin hasn’t gone far enough,” Feldman opined, “he should fire Govar if he hopes to bring back respect to the U.S. attorney’s office.”

Six days later, Greg Palast, a British journalist covering American politics, accused Tim Griffin of producing “caging” lists during the 2004 election in which Griffin played a prominent role in George W. Bush’s re-election effort.

“The Griffin scheme was sickly brilliant,” Palast wrote.  “We learned that the Republican National Committee sent first-class letters to new voters in minority precincts marked, ‘Do not forward.’  Several sheets contained nothing but soldiers; other sheets, homeless shelters.  Targets included the Jacksonville Naval Air Station in Florida and that city’s State Street Rescue Mission.  Another target: Edward Waters College, a school for African-Americans.”

If the letters came back as undeliverable, the names were challenged when the recipients tried to vote on residency grounds.  Tim Griffin resigned in disgrace.

Two weeks later, George Hairston was asking Bob Govar why he had been demoted and Judge Leon Holmes was ruling the question irrelevant.

Govar’s history is relevant to the Alvin Clay case in three ways.

First, Govar’s ill-considered letter to Garrick Feldman exposes the prosecutor’s mean and vindictive side.  The prosecutor relishes the singular power he wields as a U.S. attorney.  If he possessed the authority to crush Feldman he would have done so.  Govar takes professional criticism personally and takes revenge when he can.

Only a vindictive prosecutor would have launched a witch hunt against a fellow attorney before the slightest hint of wrongdoing had emerged.  Only George Vena resented Alvin Clay enough to open such a case at Bob Govar’s behest. 

George Vena’s threat to Alvin Clay was similar in style and spirit to Govar’s threat to Garrick Feldman.  Both men are capable of cooking up a vindictive prosecution if they think they can get away with it.

Secondly, Bob Govar’s enthusiastic pursuit of Alvin Clay contrasts strangely with the shelter he has afforded to men like Dan Harmon and Jay Campbell.  Govar has been straining out gnats and swallowing camels. 

Compared to the Bonnie and Clyde exploits of Harmon and Campbell, the accusations against Ray Nealy and Alvin Clay evoke the antics of Eddie Haskell and Beaver Cleaver.  Beaver got in trouble for hanging out with the street savvy Haskell.  Alvin Clay has shown equally poor social judgment, but does this qualify as a federal case?

 

 

If so, why did the feds force Lana McCastlain to prosecute Jay Campbell and company when her office lacked the requisite resources?  (McCastlain, buoyed by popular support for her prosecution of Campbell, is running for judge).

Finally, Bob Govar’s quarter-century friendship with Jay Campbell demonstrates the perils of guilt by association prosecutions. 

Can we really believe that Bob Govar didn’t know that his buddy had extreme addiction issues, or that Campbell could use, manufacture and sell drugs without Govar being aware of it?

Are we expected to believe that a federal prosecutor with thirty years experience took advantage of Campbell’s felon-for-hire scam without knowing it was illegal?

The guilt-by-association case I have just sketched out against Bob Govar is far more compelling than the case Govar has built against Alvin Clay.

Am I suggesting that Bob Govar should be prosecuted as an accomplice to the comically corrupt Campbell?

Not for a moment. 

Govar’s 1990 investigation of the obviously guilty Dan Harmon should be investigated.

Govar’s 2000 prosecution of almost two dozen defendants on the perjured testimony of Clayton Richardson should be the stuff of scandal.

Did Govar discourage the FBI from taking the Jay Campbell case?  Is anybody but Garrick Feldman even asking the question?

Govar’s role in suborning perjury and withholding exculpatory evidence in the Alvin Clay warrants a stiff rebuke from somebody.

But none of these sins, egregious as they are, offer proof beyond a reasonable doubt that Govar was entangled in the manifold sins of Jay Campbell. 

Nonetheless, if Govar was indicted for conspiring with Jay Campbell, a jury would probably convict.  That’s what scares me about the May 27^th trial of Alvin Clay.

 

 

The Honorable Leon Holmes 

Federal Judge Leon Holmes, the magistrate presiding over the Alvin Clay case, is admired by those who know him best.  Reading over the transcripts from this case, I was struck by Judge Holmes’ gracious and respectful manner. 

So why did the Honorable Mr. Holmes barely survive the federal confirmation process.

In 2004, critics like Patrick Leahy and Barbara Feinstein were brutal in their evaluation of the Arkansas jurist.  Senator Kay Bailey Hutchison, a conservative partisan from Texas, voted against Holmes because “He doesn’t have the fundamental commitment to the total equality of women in our society.  

 

           Patrick Leahy

    Kay Bailey Hutchison

Leon Holmes is a highly traditional Roman Catholic.  He has been criticized for asserting that wives should be subordinate to their husbands (an idea he borrowed from the book of Ephesians), that pro choice Americans are the moral equivalent of Nazis, and that the woman’s movement should be lamented for bringing us abortion, artificial contraception, and the gay rights movement.

 

“I have said some things that were openly harsh and unduly strident,” Holmes admits.  “If I could go back and change some of those things, I would speak more softly.”

But that doesn’t mean George Bush’s nominee is retracting anything he has written.  He doesn’t mean to give offense, but he believes what he believes.

Most of what you can learn about Leon Holmes on the internet comes from his political enemies.  Like Alvin Clay, Judge Holmes has been subjected to unwarranted allegations.  In fact, he had just emerged from his fiery ordeal on Capitol Hill when he was appointed to the Clay case.

Judge Holmes is no fool.  He understands that his personal beliefs must not guide his rulings from the bench.  “I think of a district judge as a humble position,” Holmes says.  His job is to determine what congress wants.  “I do not look on it as my job to make policy in the event that the statute is not what I want it to be or in the event that it is ambiguous.”

While the most strident criticism of Judge Holmes has come from pro choice and feminist circles, I am much more concerned about his views on racial justice.

Let me be clear, I am not accusing Holmes of being an old-school racist.  His doctoral dissertation at Duke focused on the views of Booker T. Washington and W.E.B. DuBois, noting how these seminal thinkers influenced Martin Luther King, Jr.  The Arkansas jurist is deeply concerned about race relations.  If you asked him if all American citizens should be equal in the eyes of the law I’m sure his head would nod in vigorous affirmation.  That’s not the problem.

 

Booker T. Washington believed that improvements in the lot of “the Negro” could only come through self-discipline and education in the manual trades while DuBois advocated swift and decisive change that was guaranteed to upset white folks.  Judge Holmes sides with Booker T. Washington.  That’s the problem.

The difference between Washington and DuBois is well illustrated by a fascinating recollection DuBois shared with The Atlantic Monthly in 1965. 

“I remember once I went with him to call on Andrew Carnegie — with whom he had a warm and financially rewarding relationship. On the way there Washington said to me:

‘Have you read Mr. Carnegie’s book?’

‘No,’ I replied, ‘I haven’t.’

‘You ought to,’ he said; ‘Mr. Carnegie likes it.’

DuBois chuckled softly. “When we got to Mr. Carnegie’s office,” he said, “he left me to wait downstairs. I never knew whether Mr. Carnegie had expressed an opinion about me or whether Washington didn’t trust me to be meek. It probably was the latter. I never read the book.”

Booker T. Washington taught that movements for racial equality are counter-productive if they deepen racial tension.  Judge Holmes agrees.

 

Consistent with this belief, Judge Holmes has argued that, in the wake of Brown vs. Board of Education, the federal government lacked the authority to desegregate public schools by judicial fiat. 

This suggests that when Judge Ronald Davies ordered Little Rock’s central High School to admit black students in 1957 he was overstepping his bounds.  Leon Holmes likely believes that integrated High Schools are desirable, but if the white majority objects, black folks should back off. 

 

George W. Bush’s controversial nominee doesn’t share the racial animus of Orval Faubus, the Arkansas governor who defied President Eisenhower in 1957, but he appears to sympathize with the governor’s stand.

Leon Holme wasn’t old enough for elementary school when the fight over Central High School erupted, but that event left an indelible mark on every white person in the state of Arkansas.  Popular opinion was solidly on the side of Governor Faubus; the paratroopers sent in to protect the Little Rock Nine were deeply resented.

  

Everybody needs a sense of place.  We want to honor our ancestors and venerate the traditions passed down from our grandmothers and grandfathers.  What do we do when Jim Crow segregation is part of the package?  How do we deal with the fact that our grandmothers and grandfathers intentionally and systematically reduced people of color to the level of animals?

I love my dog.  I treat him better than I treat most people.  But in my eyes, H.O. is still a dog.

Many southern whites loved their black servants.  They treated them better than they treated most white people.  But in their eyes, black people were still on the level of a dog.

The suggestion that the Jim Crow system was morally evil was deeply resented by southerners. 

 

The issue is complicated-intellectually and emotionally.

On the one hand, most white southerners (especially highly educated people like Leon Holmes) embrace the idea of racial equality.  On the other hand, these men and women need to celebrate their roots.

Against this background, Judge Holmes’ abiding interest in Booker T. Washington makes sense.  Washington taught that slavery, despite its horrors, was an expression of divine providence. 

In an article written in 1981 for Christianity Today (a journal for egghead evangelicals) Holmes wrote approvingly of Booker T. Washington’s approach to the race issue.  “He taught that God placed the Negro in America so it could teach the white race by example what it means to be Christ-like.  Moreover, he believed that God could use the Negroes’ situation to uplift the white race spiritually.”

But what if the Negroes don’t like being called Negroes?  What if they start calling themselves African Americans and taking to the streets in protest?  Is that spiritually uplifting to the white race?  Is it even tolerable?

 

And what if a black man named Alvin Clay, through his equally black attorneys, accuses two white federal prosecutors and a white FBI agent of perjury, withholding exculpatory evidence and pursuing a meritless and vindictive prosecution? 

What if the evidence supporting these allegations is overwhelming?

What do you do?

Here’s what Judge Holmes did (in the most dignified and gracious manner imaginable).

At the first pre-trial hearing, federal prosecutor Bob Govar testified that he played no role in presenting the Clay case to the grand jury.

On the basis of this testimony, Judge Holmes denied the defense motion alleging vindictive prosecution.  Govar denied the claim and Holmes took the federal prosecutor at his word.

Then, thanks to an oversight by Agent Hayes, grand jury transcripts fell into the hands of defense counsel.  These documents proved conclusively that Bob Govar had participated actively and enthusiastically in presenting the Clay case to the grand jury. 

The legal term is perjury.

George Hairston, Alvin Clay’s lead attorney, filed a motion for reconsideration based on Govar’s false statements and newly revealed evidence that FBI agent Hayes and federal prosecutors had lied to the grand jury, repeatedly, knowingly and blatantly.

Judge Holmes admitted that his original ruling had been mistaken, not because Govar had perjured himself but because the judge misunderstood Govar’s testimony.  The government, Holmes suggested, had made a few minor and innocent errors, but nothing serious. 

The fact that virtually every crime alleged against Clay in the original indictment has since been withdrawn, didn’t suggest there was a problem.  Grand jurors were not misled, Judge Holmes concluded, by the presentation of a few false “facts”. 

We have a very good reason to believe that jurors were misled by the testimony of bizarre witnesses like Rodney Hayes–they handed down an indictment.

Perhaps Judge Holmes comforts himself with the knowledge that Bob Govar and the entire Eastern Division of the Arkansas US Attorney’s Office have now been recused from the Clay case. 

If felonies are committed by the first set of prosecutors, we just bring in a new set.  Problem solved.

Assistant US Attorney Steven Snyder, the new prosecutor, has dropped all the unsustainable allegations from Alvin Clay’s indictment–Clay is now accused of assenting to Ray Nealy’s fraudulent acts. 

So all is well, right?

Not hardly. 

Steven Snyder knows he should drop the case against Alvin Clay, but that might suggest that the charges leveled by the Clay camp are legitimate.  That being unacceptable, Mr. Snyder soldiers on.

Judge Holmes let Bob Govar off the hook for the same reason Mr. Govar let State Trooper Clayton Richardson off the hook in Operation Wholesale–the reputation of the federal government was at stake. 

Every thinking person knew that Trooper Richardson was committing perjury every time he opened his mouth. 

Everyone who reviews the transcripts in the Clay case knows that Bob Govar, Rodney Hayes et al are guilty of vindictive prosecution, flagrant perjury and withholding exculpatory evidence.

They did it.  They knew what they were doing.  And they knew why they were doing it.

But not every felonious act can be punished; sometimes you’ve got to cut the system a little slack.

A federal judge who squeaked into his job by the slimmest of margins doesn’t want to ruffle any more feathers.  Forced to choose between a veteran of three decades like Bob Govar and an unheralded black defense attorney like Alvin Clay, Leon Holmes knew what to do. 

Holmes didn’t give these people a pass because he is a traditionalist Roman Catholic; he did it because he works within a dysfunctional system. 

How dysfunctional? 

Stay tuned.

With the Alvin Clay trial just two weeks away, I haven’t had much time for topical blogging.  But this story in the Washington Post is too important to pass over. 

Barack Obama has done everything in his power to sidestep the race issue, but it keeps tracking him down.  The more overt acts of racial hatred cited in this illuminating piece are symptomatic of a much deeper problem. 

Many have attributed Obama’s difficulties with certain sectors of the white electorate to the emergence of Rev. Jeremiah Wright or to the candidates unfortunate allusion to bitter voters clinging to guns and religion.  But why have so many white voters latched onto side issues that have generally been pushed aside by black Americans and suburban whites?

Barack Obama doesn’t stand a chance in little towns like Tulia, Texas and Jena, Louisiana; and for precisely the same reason that black defendants face an uphill struggle in these communities.  Call it racism, bigotry, or merely a problem stepping out of America’s racist shadow–it’s real.  You just feel the ambivalence to people of color in these places.

America has come a long way in the past forty years, true enough.  Mr. Obama is right to criticize his former pastor for suggesting otherwise.  But we aren’t even half way toward the goal of full racial equality.  That Barack Obama could win thirty of the fifty contests held thus far shows how far we have traveled.  That his field workers confront gross racism on a daily basis demonstrates how far we have to go.

When Alvin Clay goes to trial on May 27th, the composition of the jury will be all-important.  Jurors who see Barack Obama as a radical, America-hating Muslim will convict Mr. Clay no matter how shoddy the evidence.  I’ve seen it done.  That’s why I will be in Little Rock when the deal goes down.

Alan Bean

If Alvin Clay is convicted by a Little Rock jury it will have a chilling effect on aggressive defense attorneys across the nation.  This will be especially true for minority lawyers.  If the government can cook up a bogus prosecution against any attorney it dislikes we are unlikely to see the kind of open and honest clash of ideas that justice demands.  Defense counsel will be pulling their punches, fearful that the government might take offense and retaliate.

The government of the United States of America is making an example of Alvin Clay, a black Little Rock attorney who holds the prosecution to a high ethical standard.  He was investigated by the Department of Justice and the FBI before there was the slightest hint of illegal activity.  Gross misrepresentations of perjured testimony were used to obtain a search warrant and a grand jury indictment.  Federal prosecutors Bob Govar and George Vena have repeatedly lied under oath in order to minimize their involvement in the prosecution of Mr. Clay. 

Bob Govar handed the Clay case to George Vena because no other Assistant US Attorney was motivated to pursue a fishing expedition with no evidence of wrongdoing.  Vena had that motivation.

In August of 2002, Alvin Clay was leaving the federal courthouse in Little Rock when a slender blonde woman in her mid-forties approached him and asked for his business card.   Her name was Mary K. Edelmann.

Like Roy Lee Russell, Mary Edelmann was a troubled soul with a closet full of skeletons.  She had already served one stretch in prison for fraud and was now facing federal charges.  Edelmann was accused of having created a letter on the bogus letterhead of a high-profile bank stating that she had hundreds of thousands of dollars in assets to which she had no immediate access.  The letter, the indictment said, had been used to induce a loan from a private individual.

It was quickly clear that Ms. Edelmann had a pathological streak.  In prison she was a notoriously brilliant jailhouse lawyer who had helped several inmates with their cases.  In the free world, Edelmann was drawn to larceny like iron filings to a magnet.  A pathological liar, she lived for the game.  When she wasn’t running a scam she was filing lawsuits against every authority figure that entered her world.

“Mary is a very gifted person in many ways,” Clay tells me.  “She’s a talented legal researcher and has even done some work for the Rose law firm.   She could have made legitimate money.”

Mary Edelmann had already fired two attorneys when she hired Clay.  She was feeling abused and resentful.  The last lawyer to work on her case had talked her into talking to US attorney Dan Stripling and FBI agent Sharon Dawkins.  The theory was that playing snitch for the federal government was the only way Edelmann could avoid a stiff federal sentence.

Clay understood the strategy, but exposing a compulsive liar to agents of the federal government was a reckless plan.  “These people take notes,” Clay explains, “and anything she said to them could be used against her in court.”

In the course of one meeting with the feds, Edelmann’s attorney accused her of lying.  The allegation was likely true, but it placed Edelmann in legal jeopardy.

Clay filed an ineffective assistance of counsel motion against Edelmann’s former attorney.  Next, he accused AUSA Stripling of prosecutorial misconduct.  “They had wired Ms. Edelmann up in an attempt to get incriminating evidence on the man she had scammed with the bank letter.  For the federal government that’s pretty standard practice, but they did it without talking to Mary’s attorney.  You can’t do that.”

Mary Edelmann was now insisting that the government had offered her a deal in return for working as an informant and then reneged on the deal.

Dan Stripling and the FBI officer insisted that they had worked in concert with Edelmann’s attorney.  But in the course of a rancorous hearing, Alvin Clay forced her attorney to admit that this wasn’t true.   

Three days later, Dan Stripling was replaced by USA George Vena.

“The tension in the courtroom during the Russell trial was intense,” Clay tells me; “but things really got nasty in the Edelmann case.  I’m always professional and courteous in my dealings with the prosecution, but if I see prosecutorial misconduct I’ll file the motion every time; I don’t care who my client is.  The government needs to be accountable for its behavior.”

Clay filed a pre-trial motion to have the case dismissed.

Shortly after coming onto the case, George Vena approached Clay’s co-counsel, Darrell Brown and told him that Alvin Clay was getting too close to his client and needed to be careful in his representation of her.

The implication was that Ms. Edelman’s accusations were embarrassing the government and Clay was making no attempt to discourage her.

At a hearing in 2006, Darrell Brown was asked how he interpreted Mr. Vena’s message. 

“Ms. Edelmann had made some very serious allegations concerning the US Attorney’s office and other persons who were investigating the case,” Brown testified.  “And needless to say, some of those allegations were disturbing to the US Attorney’s Office, to Mr. Vena and others who were involved in that case.  And I took that to mean that those allegations, if they were coming from Mr. Clay, he felt perhaps were either unfounded and that it could lead to other things.”

Asked to elaborate, Brown said that that the allegations Clay was making against the government in the Edelmann case made even Brown, Clay’s co-counsel cringe because, “If those allegations were true, then there needed to be some further investigation undertaken.” 

With these concerns in mind, Brown talked to Clay about the aggressive nature of his representation.  “I frankly felt some obligation to also alert Mr. Clay that this was ground that he needed to be very careful about for his own well-being,” Brown testified.  “If you ask me whether or not I had some concerns that Mr. Clay and his profession was in jeopardy, I could say yes.”

It didn’t take long for US Attorneys George Vena and Bob Govar to prove Darrell Brown right.  Alvin Clay had played a minor role in a real estate deal in which Ray Nealy had been defrauded by a man in New Jersey.  Nealy immediately contacted the FBI and asked them to investigate. 

It wasn’t long before Rodney Hayes, a freshly minted FBI agent out of Oklahoma, contacted Nealy.  Hayes and the FBI weren’t interested in helping Nealy recoup his business losses; but they were very interested in his association with the notorious Alvin Clay. 

The FBI had been embarrassed by the Roy Lee Russell fiasco even more than the US Attorney’s office. 

When questions are raised about an officer of the court, the normal procedure is to call in the attorney in question, lay out the concerns and ask for an explanation.  Govar and Vena didn’t do that.  Instead, they contacted Kenny Wright, the roly-poly accountant who had written1099s for subcontractor Donny McCuien a few weeks earlier. 

Kenny Wright immediately contacted his attorney, Mark Leverett who accompanied his terrified client to the US Attorney’s office on July 1, 2003.  Wright could only tell his lawyer that the feds had questions about “Ray Nealy and something involving mortgages.”

George Vena assured Leverett that Wright wasn’t under investigation.  So long as he proved cooperative he would be immune from prosecution.

When Alvin Clay’s name entered the conversation, Leverett informed Wright that, as a friend of Clay, he wouldn’t be able to represent him further in the matter. 

Kenny Wright wasn’t sure what the government was looking for, but he did his level best to give it to them.  There was just one hitch: Wright knew practically nothing about the five real estate deals in question.  Everything he thought he knew was based on inaccurate second-hand information that would eventually force the government to drop most of the charges against Clay.

Wright told George Vena that Clay Construction wasn’t a real company, that no rehab work had been done on any of the five properties, that the value of all the properties had been inflated and that Donny McCuien hadn’t received anywhere near the amounts reflected in the 1099s.  None of this was true.  McCuien didn’t tell the government that he was responsible for recruiting buyers and sellers and for doing rehab work on the properties. 

On the other hand, no one ever asked. 

A quick phone call to the appropriate state office would have informed the FBI that Clay Construction was a real company.  Unfortunately, the government made no attempt to verify the accuracy of Wright’s testimony.  Less than 72 hours after providing false information to the government, Kenny Wright entered Alvin Clay’s office accompanied a plain-clothes FBI agent wearing a wire. 

In mid-January, 2004 the FBI raided Alvin Clay’s office confiscating business records and computers.  Only then did George Vena hand Clay’s case over to another prosecutor.

In other words, while George Vena was prosecuting the Edelmann case, he was digging up dirt on his legal opponent.  Asked why he didn’t recuse himself from the case, Vena testified that it was his responsibility to “look into the matter.”

Vena then testified that he and Bob Govar had never addressed the propriety of investigating a legal opponent.

Judges rarely ask questions in the course of hearings, but Judge Leon Holmes couldn’t let this one go.  “Did you say there is no impropriety whatsoever in doing it?” he asked.

“No impropriety,” Vena replied.

At the behest of Govar and Vena, FBI agent Rodney Hayes began interviewing everyone associated with the five real estate deals Donny McCuien and Ray Nealy had arranged.  He talked to buyers, sellers and employees who had worked with either Nealy or Clay.

Donny McCuien consistently minimized his role in the real estate deals, suggesting that he had entered the process only toward the very end.  Rodney Hayes told the grand jury that Alvin Clay had written checks to Donny McCuien but suggested that McCuien received only a small portion of the almost $80,000 cited in the 1099s.  Hayes didn’t get that from McCuien.  In fact, Hayes knew that McCuien had received every penny of the money he was owed and Hayes knew it–he had the checks.

Grand jurors were led to believe that Clay had received over $133,000 when he had really received only $55,000.  After paying off an outstanding debt to Ray Nealy, Clay realized a modest return of $35,000 on five real estate deals. 

Agent Hayes’ perjury was blatant and unrelenting.  He knew what he was doing.  More importantly, Bob Govar knew that his star witness was lying and made no effort to challenge his testimony or to correct the record.

This was Rodney Hayes’ first big case.  He knew what the government was looking for, and he was determined to give it to them.

 On March 16, 2004, the government forced Alvin Clay to resign as Mary K. Edelmann’s attorney.  When Clay attended a hearing in the Edelmann case, the government attempted (unsuccessfully) to have him barred from the courtroom.  The animus was obvious. 

Two years later, testifying at a hearing related to the Clay case, US Attorney Bob Govar admitted that he could recall only one other case in twenty-six years on the job in which a defense attorney was conflicted out of a case because he was under investigation.

On June 1, 2004, five months after Alvin Clay’s office was raided, a grand jury began hearing testimony and five months later, Alvin Clay and Ray Nealy were indicted.  His work done, George Vena finally turned the case over to another prosecutor. 

In 2007, with the Clay-Nealy case scheduled for trial, Rodney Hayes told George Hairston, Clay’s lead defense attorney, that discovery materials were ready for review.  Hayes didn’t realize that he had inadvertently given the defense access to the grand jury transcripts from 2004. 

These documents demonstrated that Bob Govar had played a major role in presenting the case to the grand jury, repeatedly asking questions designed to help jurors connect the dots. 

On one occasion, Govar asked Hayes a series of questions designed to convince grand jurors that Alvin Clay couldn’t possibly have done the rehab work he was hired to do.  Did Clay Construction have any equipment, Govar asked.  Did Clay Construction have any employees?

Both men knew that Clay had subcontracted the work to Donnie McCuien, but they kept that critical piece of information from the grand jury.

In fact, Hayes, Govar and Vena shielded grand jurors from any evidence inconsistent with their unsustainable theory.  The grand jury process was one long perjury pageant.  Virtually every allegation against Clay named in the indictment has since been withdrawn.  Had Hayes, Govar and Vena restricted themselves to provable fact it is doubtful that an indictment could have been obtained against Alvin Clay.

The grand jury transcripts contained the field notes Rodney Hayes had taken during his initial interviews along with the summaries of these notes US attorneys had assembled.  A comparison of the two documents revealed that prosecutors had frequently twisted witness comments to sinister effect.

Shortly after raiding Alvin Clay’s office, Rodney Hayes interviewed his former secretary Jeron Marshall.  “Alvin is a good attorney,” Marshall said. “If he felt it was questionable, he would do something about it.  He worked hard for his license.”

The grand jury heard a slightly different version of this remark: “Clay is a good attorney and if he felt that he was doing something questionable, he would do something about it.  Clay worked hard for his law license.” 

At a pre-trial hearing, defense attorney George Hairston instructed agent Hayes on the difference between the statements.  The first statement would have suggested to the grand jury that Marshall “knew nothing about Alvin being involved in any of the stuff that she had told you about, she was being interviewed about, the allegations in this case?”

The second statement suggested that Clay did know what was going on and was troubled by it. 

Jeron Marshall had already admitted to the government that she was aware that Ray Nealy was falsifying information on mortgage applications.  She was trying to tell Hayes that Alvin wasn’t party to this wrongdoing, but Hayes didn’t want to listen, nor did he want the grand jury to be privy to this critical fact.

 Jeron Marshall has always made it clear that Alvin subcontracted the rehab work to Donny McCuien and that Clay was unaware of anything illegal.  Waiting to testify at a hearing, a member of Clay’s legal team struck up a conversation with Clay’s former secretary.  Marshall was upset that Clay had fired her and she thought it was his responsibility to take care of her legal bills.  Still, she insisted that her former employer had been kept in the dark.

 Marshall told the attorney that she had been terrified when federal agents raided the office.  She was alone at the time and was afraid that she would be arrested.  “Jeron and I sat in the foyer and talked for more than 2 hours,” the attorney tells me.  “She said she didn’t believe that Alvin knew anything about the deals because he didn’t handle the paperwork.”

To date, not a single witness has testified that Clay had any direct involvement in preparing fraudulent mortgage applications.

When George Vena and Bob Govar received a list of questions defense counsel wished to ask them under oath, they dodged the bullet by recusing the entire Eastern Division of Arkansas and turning the prosecution over to the Western Division. 

It wasn’t long before Steven Snyder, the federal prosecutor assigned to the case in 2007, had issued a superseding indictment scaling back the government’s allegations considerably.  Clay was no longer accused of filing false invoices, inflating the value of properties or even of splitting up the proceeds with Ray Nealy.  The indictment made it clear that Ray Nealy was the primary actor.  Alvin Clay’s primary crime had been scaled back to consenting to the filing of fraudulent loan applications. 

Although the government’s original allegations against Clay have been reduced to rubble, the Little Rock attorney is still in deep legal jeopardy.  If the government can convince the jury that Clay knew what Nealy was up to, the Little Rock attorney will be convicted of fraud.

In the five year trajectory of this case, Bob Govar, George Vena and FBI agent Rodney Hayes have repeatedly lied to magistrates, grand juries, and a federal judge without serious consequence.  A big part of the reason is the federal judge assigned to the Clay case.  Prepare to be amazed.

                                              Alvin Clay and Roy Lee Russell

Alvin Clay, Part 3: “Who Polices the Police?”

Alvin Clay knew he was facing a steep climb.  His client, Roy Lee Russell, was guilty as charged.  Russell had testified that Steve Block sold him drugs.  Later, also under oath, he recanted that testimony.  On one of these occasions he was lying.

Clay had two choices: he could go through the motions like a sensible attorney, or he could put the Arkansas State Police, the FBI and the Department of Justice on trial.  The only way to win was to argue that everybody involved in Operation Wholesale was either lying or protecting a liar.

The fancy term for Clay’s strategy is jury nullification-the theory that a higher justice demands that, in some instances, the law should not be followed.  When you’ve got a street hustler going up against the American government, it was a hard argument to make.

The best option was to cut Russell the best deal possible.  Assistant US Attorney, Bob Govar was interested.  Like everyone associated with Operation Wholesale, Govar was furious with Russell, but the veteran prosecutor knew that the Russell-Richardson fiasco was a national scandal in the making.  A conviction was a near certainty; but the Government didn’t want Roy Lee Russell on the stand.  Only God knew what the guy might say or who might believe him.

On the verge of trial, Govar offered Russell eight months in exchange for a guilty plea-a clear sign of desperation.  Clay was overjoyed.  He was prepared to go to the wall for his client, but eight months for perjury and obstruction was an unimaginably good deal.    

Clay huddled with his client.  Russell nodded his approval.  Clay sighed with relief.

Then things got bizarre. Perjury and obstruction of justice are serious charges, Judge Howard reminded Govar-why was the government so reluctant to move to trial.  Then, to show he hadn’t prejudged the case at bar, Howard told Russell that if he was innocent he should make his case to a jury.

 

Judge George Howard as a young man

When Judge Howard was appointed to the Eastern District of Arkansas in 1980, he was the first black federal judge to serve in the state.  Not until his death in 2007 was another black federal judge appointed in Arkansas.  In his early years, Howard had been an aggressive civil rights attorney famous for his cooperative relationship with the NAACP. 

Judge Howard was in his mid-seventies when Roy Lee Russell went to trial.  Five months earlier, he had presided over a high profile case in which special prosecutor Kenneth Starr had accused Susan McDougal, a close friend of Bill and Hillary Clinton, of criminal contempt after she refused to testify to two grand juries.  Howard had provided defense counsel with ample opportunity to accuse Starr of mounting a malicious prosecution. 

McDougal’s attorneys were using the same jury nullification strategy Alvin Clay contemplated.  Like Russell, McDougal was technically guilty.  Nonetheless, defense attorneys were able to convince the jury that their client was more sinned against than sinning and their client was acquitted.

 Alvin Clay faced a far stiffer challenge.  In drug cases, Howard (like most judges) displayed a clear pro-prosecution bias.  In his later years, he was inclined to wrap himself in the American flag by lecturing juries on the glories of American Democracy-a clear assist to the government, especially in drug cases. 

 

              

Susan McDougal                                               

  

Kenneth Starr and his Nemesis

          

Conservatives had criticized Judge Howard for allowing the defense to put the government on trial during the McDougal case.   Roy Lee Russell provided the perfect opportunity for Howard to reassert his law-and-order credentials and he intended to make the most of it.

When Judge Howard challenged Roy Lee Russell to fight like a man, Alvin Clay could feel his client stiffen.  Russell announced that he was no longer comfortable with the eight month plea deal; he wanted to fight.  Clay took his client aside and tried to reason with him.  “This is a great deal for you,” Clay remembers saying.  “I’ll do my best if we go to trial, but your chances aren’t good.”

Russell was adamant.  He’d rather serve ten years in the federal penitentiary than take the fall for Clayton Richardson, the Arkansas State Police and the FBI.  “I told all them people this wasn’t a good operation and they know I’m telling the truth.  I want everybody to hear my side of this thing.”

“All right, Roy,” Clay conceded with a shrug of resignation.  “If that’s what you want; that’s what you’ll get.”

Clay filed a pre-trial motion to have the case dismissed on procedural grounds.  Judge Howard glared at the young attorney in amazement and asked him if he was serious.

An article in the Arkansas Democrat-Gazette revealed just how daunting Clay’s task had become.  The Little Rock attorney spent the first day of trial making a simple point: the Arkansas State Police received little baggies of crack cocaine from Clayton Richardson, but only Richardson knew the source of the evidence he turned in.

It followed logically that endless testimony about “chains of custody” and “checks and balances” was meaningless.  Only Richardson knew what was going on.

These arguments were utterly lost on the Democrat-Gazette reporter.  She reduced Clay’s nuanced argument to a vague notion that “some of the defendants were being framed by police who pocketed money set aside for drug buys.”

No matter how hard Clay worked to show the jury how easy it would have been for Clayton Richardson to fake cases, the media coverage didn’t improve.  Roy Lee Russell remained a “turncoat” and a deceiver who was making it hard for the government to rid the streets of drug dealers.

Prosecutor Bob Govar’s assured the jury that Operation Wholesale had been a pristine operation until Russell started lying.  The media ate it up.  No one could understand the simple fact that neither Bob Govar, FBI agent Steven Pinkstone or Sgt. Michael Hall of the Arkansas State Police could tell if Roy Lee Russell was lying.  Perhaps the implications of getting this simple point were too troubling. 

Russell’s trial showed that Russell had no idea where Clayton Richardson was getting the buy money and that he never read Richardson’s sketchy field reports.  Russell wasn’t aware that innocent people were being charged until he was asked to testify to the grand jury. In the Steven Block case, Russell admitted, he had caved to pressure from Richardson, the FBI and federal prosecutors.  After that, he told it straight.

In his testimony, Russell kept referring to the legitimate sting operation he had worked with Officer Lloyd Franklin a decade earlier.  “I have no remorse for the people that they arrested or got convicted in the first operation,” he said, “but this operation was quite some different and I just couldn’t live with myself so I know I’m not going to be on this earth forever, and I want-I got to meet my maker one day and I want to have a good understanding with him.”

A stream of defense attorneys testified that, contrary to the government’s claim, they had never discussed giving Roy Lee Russell a nickel in exchange for his testimony.

Most of the people targeted by Operation Wholesale were street hustlers suspected of dealing drugs.  Few of them, Russell said, were personal acquaintances.

“Wasn’t nobody familiar with Trooper Richardson,” Russell explained, “so they would not sell us any drugs.  And Trooper Richardson said, well, that’s okay . . . I’ll just give them a charge.”

When the two men arrived in a new town, Russell testified, they would make numerous buys from one or two conspicuous dealers.  Russell had no problems identifying these people or testifying against them.  All the drugs turned into the authorities (after being broken down into smaller units) came from these initial buys.  In other words, most of the people charged in any given community hadn’t sold drugs to either Clayton Richardson or Roy Lee Russell.

“Mr. Russell, you knew that was wrong?” Clay said.

“Yes sir,” Russell admitted.  “But like I say, I’m not going to dispute no state police.  I’ll be in more trouble than I’m in now if I resist that man . . . He said he’s not fixing to lose his career over nothing like this.  He said they are going to take his word over mine anyway.”

The tension in the courtroom soared when Alvin Clay addressed the racial elephant in the room.  “Mr. Russell, what did all of the people that Clayton Richardson falsely accused of selling drugs have in common?”

“They all was suspected drug dealers,” Russell said.

“What else?  Were they all males?”

“They was all black males,” Russell answered.

Everybody got the point.  Operation Wholesale was designed from the outset to incarcerate poor black males.  No one else was arrested because no one else was targeted.

“There is no way I can overstate just how acrimonious things got in the courtroom,” Clay tells me.  “The only way I could defend my client was to make everybody involved in this case look bad.  I knew this would displease everybody on the government’s side; but I didn’t know how much.”

In his closing remarks, Clay argued that Operation Wholesale provided Clayton Richardson with the motive and opportunity to defraud the government.  This wasn’t about one bad cop; it was about a fundamental lack of democratic accountability in the war on drugs. 

“Who polices the police?” Clay asked the jury.  Then, in case they didn’t get the point, he answered his own question.  “You, the men and women of the jury, you police the police.”

The Democrat-Gazette reporter covering the trial made light of Clay’s question.  “Richardson’s supervisors,” she assured her readers, proved that “‘every penny’ of the drug-buy money was accounted for, and that it was monitored through a stringent system of checks and balances.”

Clay could only shake his head in wonderment.  Hadn’t he proven conclusively that the government’s system of checks and balances was useless so long as nobody was monitoring Russell and Richardson?  If the reporter couldn’t understand that, the jury wasn’t likely to do any better.

In the end, Roy Lee Russell was convicted of perjury and obstruction of justice.  That didn’t mean Russell was lying.  The government couldn’t prove that point and didn’t have to.

This issue surfaced in a bizarre fashion at the conclusion of Russell’s sentencing hearing.  On that occasion, Russell was defended by two attorneys with only a superficial grasp of the facts, but the trial transcript convinced them that Russell was taking the fall for the FBI and the department of justice. 

The government argued that, for the purposes of sentencing, all the drugs from all the cases that had been dismissed should be applied to Roy Lee Russell.  This assumed that the cases were legitimate even though the jury had never been asked to address that issue. 

FBI agent Steven Pinkstone insisted that Russell was lying.  He had no evidence to support this claim: he just knew it.

To everyone’s surprise Bob Govar appeared to argue that Russell, not Richardson, had faked drug cases on innocent people.

“I can’t even begin to estimate, Your Honor, the harm that this has done to the reputation of the FBI or the Arkansas State Police,” Govar began.  But Govar also defended “All these people that Mr. Russell had falsely arrested and indicted.  I mean, I can’t imagine a more clear and cogent case of violating other people’s civil rights than that right there; having them arrested, having them indicted, when all he had to do was tell the truth and say these people didn’t sell drugs, I didn’t buy drugs from them.  But he didn’t do that.”

The reporter for the Democrat-Gazette understood Govar’s comment to be hypothetical: even if Russell was telling the truth he was still guilty.  But a careful study of the hearing transcript rules out this reading.  Bob Govar was arguing that Russell’s lies had led to the arrest of innocent people.

 No matter how you parse Govar’s statement it makes no sense.  Russell had refused to testify against the innocent.  If Russell was telling the truth about Operation Wholesale, the State Trooper was lying.  But that didn’t deter Mr. Govar from taking dozens of Operation Wholesale cases to trial on Richardson’s uncorroborated testimony.

Asked if he had anything to say to the Court before the sentence was handed down, Roy Lee Russell launched into a rambling appeal.  Trooper Richardson “didn’t have no idea who these people was,” Russell asserted, “merely because he wasn’t never there, and it’s quite natural that he’s not going to admit to the court, because I assume it would be some kind of action took against him, like it was against me.”

But things hadn’t worked that way and Russell was wondering why.  “I feel like it really ain’t been investigated by the FBI,” he told Judge Howard. 

The Judge wasn’t about to order an investigation for an informant and a posse of accused drug dealers.  Russell was sentenced to ten years.  “I think it will take Mr. Russell out of circulation for a reasonable period of time,” Howard concluded, “thus affording him an opportunity to do some reflective thinking and become rehabilitated.”

From Bob Govar’s perspective, it didn’t matter whether Russell was lying or telling the truth.  Russell had raised serious doubts about the credibility of Bob Govar’s line of work.  All the people targeted in the sting were suspected of drug trafficking.  These were bad apples and they didn’t deserve protection from Alvin Clay or anybody else.  From Govar’s perspective, this was war and people like Alvin Clay needed to decide whose side they were on. 

It was one thing to accuse a small town police department of corruption; but you don’t aim that accusation at the federal government.

It was one thing for a lawyer to go to the wall for someone like Susan McDougal-she was a well-connected woman of means.  Roy Lee Russell was just a street hustler hired to finger other street hustlers.  So what if the defendants didn’t sell to Russell?  If they were truly innocent they wouldn’t have been on the government’s list.

Alvin Clay was dangerous for the same reason Susan McDougal and Roy Lee Russell were dangerous-they weren’t motivated by naked self-interest.  By refusing to testify against the Clintons, McDougal had destroyed Kenneth Starr’s credibility.  Thanks largely to the hard-charging Alvin Clay, Operation Wholesale had done serious damage to the reputation of the FBI and the federal government.  

Thanks to a compliant media and the complete absence of advocacy organizations, the government had dodged a bullet . . . this time.  But Bob Govar knew how easily the government’s house of cards could come crashing down. 

This was a sin Bob Govar could not forgive.  Nor could he forget.