When safeguards fail (cont.)
Grand jury proceedings are held in secret, in theory to protect the innocent from the unchallenged statements of witnesses.
That secrecy also helps conceal prosecutors misconduct such as happened in the case of Miami Police Officer Reinaldo Rodriguez.
Rodriguez can be accused of poor judgment he admitted visiting the home of a known drug dealer.
But that lapse should not have resulted in a 27-year sentence on drug charges especially when there is substantial evidence to show prosecutors used a grand jurys secrecy to promote the perjury of a witness.
U.S. Drug Enforcement Administration Agent Lee Lucas told grand jurors he saw Rodriguez drive Joseph "Junior" Ayala, one of South Floridas most notorious drug suppliers, to the home of Miami drug dealer Francisco Novaton on Nov. 23, 1993.
Rodriguez admitted he knew Novaton and had been to his house on a few occasions.
He said he had visited Novatons mother, who was a high priestess of a Cuban-based voodoo-like religion called Santeria, which combines black magic with Catholicism. Rodriguez practices the religion.
He denied ever accompanying a drug dealer to Novatons home.
Lucass testimony was persuasive. Under questioning by Rodriguezs attorney at a pre-trial hearing, he repeated his grand jury story and said Rodriguez and Ayala left the car with a black bag presumably filled with money.
Based largely on Lucass testimony, a jury sentenced Rodriguez to 27 years for providing protection to Novatons drug enterprise.
Two years after his conviction, Rodriguez learned another DEA agent had testified before the grand jury about that same November night. This agents testimony should have been turned over as part of the discovery process, but prosecutors kept it under wraps.
DEA Agent Raymond Carvil said the person who arrived with Ayala that night was a "white Latin female," and he made no mention of Rodriguez or a bag of money.
Unlike Lucas, Carvil had a videotape of his surveillance to back up his statements.
Since grand jury proceedings are secret, its not clear how grand jurors reconciled Lucass version of events with that of Carvils. Or if the contradiction was even pointed out by prosecutors or noticed by grand jurors.
Thats not unusual, the Post-Gazette investigation found. Grand jury witnesses sometimes testify months apart, and prosecutors have no obligation to point out discrepancies among witnesses or even bring up a witnesss testimony again. Witnesses with statements not to a prosecutors liking may be quickly dismissed. And prosecutors routinely emphasize or ignore whatever they want in pressing for an indictment.
But because the grand jury system does not allow defendants to rebut false testimony, Lucass statement helped indict Rodriguez. Then prosecutors compounded Lucass inaccurate testimony by keeping Carvils statement from Rodriguezs attorneys.
In 1996, attorneys for Rodriguez asked for a new trial, based on the prosecutors misconduct noting that hed made no effort to correct Lucass version of events.
A judge turned down the appeal, citing, incredibly, the very testimony of Lucas that Carvil and his videotape discredited.
Rodriguez appealed again.
"This newly discovered evidence suggests assistant U.S. attorneys . . . allowed and then knowingly exploited the perjured testimony of Agent Lucas from the inception of the investigation repeatedly misrepresenting the facts," stated Rodriguezs attorney, William Matthewman.
Matthewman has asked for a new trial or a dismissal of the case based on the blatant misconduct.
"Surely, the criminal justice system cannot tolerate such a pervasive pattern of deceit by a federal agent and prosecutor," he said.
Rodriguez remains in prison, awaiting the courts decision.
Witnesses who lie before grand juries on behalf of the government are seldom punished.
Indeed, federal prosecutors often threaten grand jury witnesses whose testimony doesnt conform with the governments version of events.
Thomas Sanders is a retired Air Force pilot who logged almost 1,000 hours of combat flying during the Vietnam War. After he left the service, he lived in a house owned by his brother.
The house burned in an accidental fire in July 1993.
In September 1994, Sanders brother, Jim, was indicted for mail fraud. He told prosecutors some of the records of his company had been destroyed in the 1993 fire.
Prosecutors didnt believe him and had Thomas Sanders testify before a grand jury.
Here are the key points of that testimony: There were records other than his own in the house, but he wasnt sure if they were his brothers. Some of the records were "not recognizable, burnt." And there might have been more records in the attic, which he presumed would have been destroyed in the fire.
A fire official testified that no records were destroyed.
Based on that contradiction, Thomas Sanders was charged with perjury.
In the trials closing argument, Assistant U.S. Attorney Daniel S. Linhardt of Sacramento, Calif., several times misstated Sanders grand jury testimony, insisting Sanders had said that "everything in the attic burned."
Despite the protests of his attorney over the misstatements, a jury found Sanders guilty. During the sentencing hearing, Linhardt admitted hed been "mistaken" about what Sanders had said that Sanders never testified before a grand jury about anything in the attic burning.
The prosecutor wasnt punished for his misstatement.
Sanders was sentenced to six to 24 months in prison.
His appeal has been denied and he is living and working in Houston, waiting for an order to report to prison.
In a complaint to the U.S. Justice Departments Office of Professional Responsibility, Sanders charged that Linhardt engaged in misconduct from the moment he came out of the grand jury room.
"[Linhardt] stepped out into the hall and advised my attorney that he was going to have me indicted if I didnt go back into the room and change my story. I didnt know enough about the situation to know what he wanted me to say," he told the OPR.
He hasnt heard if his complaint is being investigated.