WHEN SAFEGUARDS FAIL

Grand Juries Make Questionable Calls When Prosecutors Hide The Evidence

The 54-page indictment against William B. Moore Jr. was the result of a
"paintstakingly thorough" 3 1/2-year investigation, federal prosecutors said.

The case was backed up by more than 50,000 pages of documents, and the
government called 84 witnesses during the six-week trial that started in
October 1989.

Moore, the millionaire chief executive officer of Recognition Equipment
Inc. of Dallas, was accused of participating in a scheme to bribe officials
of the U.S. Postal Service.

Repeatedly, though, U.S. District Judge George Revercomb of Washington,
D.C., asked Assistant U.S. Attorney James B. Valder when he would link
Moore to the crime.

Outside of a few inferences, Valder never did.

His case rested upon the premise that Moore and company Vice President
Robert Reedy cleverly insulated themselves from other perpetrators of a
contract procurement scam by maintaining "plausible deniability."

Defense attorneys had a different explanation. They said Valder had misled
and cajoled a grand jury by distorting facts, threatening witnesses and
withholding exculpatory information in order to force an indictment, even
though no evidence connecting Moore to the crime existed.

The judge never ruled on the defense attorneys’ allegations of misconduct.
Instead, he dismissed, for lack of evidence, all charges against Moore, his
company and his associate -- before the defense even presented its case.

Moore had spent almost four years and $9 million defending himself. A
hostile takeover had destroyed his company. He’d suffered a heart attack.
And he was angry.

He wanted to sue the government for its obvious manipulation of a grand
jury to create a crime that wasn’t there.

Attorneys warned him that it would probably be fruitless.

So far, they’ve been right.

As the Post-Gazette’s two-year investigation found, the American justice
system has made it simple for federal prosecutors to use a grand jury to
win an indictment against almost anyone. But it has made it nearly
impossible to punish them when they abuse that right.

"[The federal grand jury] is no longer a protection of the person who is
suspected of crime, it is a vicious tool," said Arnold I. Burns, who was
deputy attorney general for President Reagan and is a member of an
attorneys’ task force seeking changes in the grand jury system.

"The grand jury process today is as far afield from what it was intended to
be as it could possibly be."

Change In Role

The framers of the Constitution included grand juries as a safeguard --
providing that no person should stand trial for "a capital or otherwise
infamous crime" without grand jurors first determining that sufficient
evidence existed to press charges.

A federal grand jury usually has 23 members and a prosecutor needs the
approval of only a simple majority -- 12 votes -- to win an indictment
charging a crime.

Federal prosecutors have tremendous power when they convene a grand jury.
They decide whom to seek indictments against and what charge that suspect
should face. They also determine what evidence grand jurors see, what
witnesses they hear and whether to grant leniency to witnesses who might
testify against a defendant.

They can frame arguments that favor their version of events, emphasize the
testimony of one witness, and ignore the testimony of another.

Evidence presented before a grand jury may be so flimsy that it would not
be admissable at a trial. Grand jurors may hear rumors from witnesses or
even use their own knowlege of an alleged crime in determining whether to
indict. A defendant has no right to be present or even have an attorney
present to listen to the proceedings or rebut false accusations.

Defense attorneys complain that grand juries can easily be manipulated by
an unscrupulous prosecutor and that the problem has become worse because
there is little oversight of the proceedings by federal judges. In
addition, the Supreme Court has expanded grand jury powers.

For instance, Moore said Valder not only deceived the grand jury about the
facts of the case, but that he also possessed evidence that strongly
suggested Moore was innocent yet withheld it. Moore said Valder’s actions
violated the Justice Department’s rules requiring such disclosures.

But in 1992, the U.S. Supreme Court ruled in a 5-4 decision that
prosecutors have no legal obligation to provide "substantial exculpatory
evidence" to a grand jury -- a standard requirement in a trial.

Justice Antonin Scalia wrote in the case -- U.S. v. Williams -- that it is
"sufficient for the grand jury to hear only the prosecutor’s side."

Justice John Paul Stevens issued a vitriolic dissent, saying the majority’s
finding "is inconsistent with the administration of justice . . . and
should be redressed in appropriate cases by the dismissal of indictments
obtained by improper methods."

Burns agrees.

"Every so often," he said, "you wind up with (a federal prosecutor) who is
some sort of a crazy zealot, no background, no experience, no frame of
reference, uncontrolled, unfettered, very dangerous."

He said the grand jury process should be reformed so prosecutors have an
obligation to present exculpatory material. He also believes suspected
felons and their lawyers should have an opportunity to be heard, and that
judges should be more active in supervising grand jury proceedings.

"I have the greatest respect in the world for Justice Scalia," Burns said
in a recent interview. "I consider him a friend. But . . . he does not have
a full appreciation that if you are indicted, you are ruined, even if you
are acquitted."

Burns mentioned the case of former U.S. Department of Labor Secretary
Raymond Donovan, who served under Reagan and was indicted by a grand jury
on charges of public corruption. He was acquitted after a prolonged trial.

"Like Donovan said, ‘I was acquitted, now how do I get my reputation back,’
" Burns said.

Enjoying Secrecy

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 jury’s 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 Florida’s 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 Novaton’s 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 Novaton’s home.

Lucas’s testimony was persuasive. Under questioning by Rodriguez’s 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 Lucas’s testimony, a jury sentenced Rodriguez to 27 years
for providing protection to Novaton’s drug enterprise.

Two years after his conviction, Rodriguez learned another DEA agent had
testified before the grand jury about that same November night. This
agent’s 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, it’s not clear how grand jurors
reconciled Lucas’s version of events with that of Carvil’s. Or if the
contradiction was even pointed out by prosecutors or noticed by grand jurors.

That’s 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
witness’s testimony again. Witnesses with statements not to a prosecutor’s
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, Lucas’s statement helped indict Rodriguez. Then prosecutors
compounded Lucas’s inaccurate testimony by keeping Carvil’s statement from
Rodriguez’s attorneys.

In 1996, attorneys for Rodriguez asked for a new trial, based on the
prosecutor’s misconduct -- noting that he’d made no effort to correct
Lucas’s 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 Rodriguez’s 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 court’s decision.

Perjury Unpunished

Witnesses who lie before grand juries on behalf of the government are
seldom punished.

Indeed, federal prosecutors often threaten grand jury witnesses whose
testimony doesn’t conform with the government’s 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 didn’t 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 wasn’t sure if they were his brother’s. 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 trial’s 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 he’d been
"mistaken" about what Sanders had said -- that Sanders never testified
before a grand jury about anything in the attic burning.

The prosecutor wasn’t 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 Department's 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 didn’t go back into the room and 'change my
story.' I didn’t know enough about the situation to know what he wanted me
to say," he told the OPR.

He hasn’t heard if his complaint is being investigated.

Making Deals

Perhaps the biggest tool federal prosecutors have to mold testimony is the
promise of leniency for a grand jury witness facing criminal charges.

Consider the case of William Moore, accused of trying to bribe U.S. Postal
Service officials in Dallas.

In the late 1980s, he’d been trying for months to get the U.S. Postal
Service to take a look at an optical scanning device his company developed
that could greatly speed up mail sorting. He’d had no success. People who’d
worked with the government said he should hire a lobbyist.

It turned out Valder was investigating the lobbyist Moore hired, John R.
Gnau Jr. of Michigan, for passing bribes to Peter E. Voss, a member of the
Postal Service’s board of governors.

Another target of the investigation was Willam Spartin, an executive
recruiter who had joined in Gnau’s bribery scheme.

Prosecutors promised Spartin that he would not be prosecuted if he provided
truthful testimony. He told federal prosecutors he didn’t know if Moore had
been told about the bribes -- and a polygraph test showed he was telling
the truth.

After Valder heard of Spartin’s statement about Moore, he confronted him in
an interview room and tore up the non-prosecution agreement the government
had promised. Valder would later say he was trying to get the witness’s
"attention."

Spartin’s lawyer asked Valder for a second chance, saying Spartin was
trying to be helpful. So Valder "refreshed" Spartin’s memory by showing him
government summaries of grand jury statements made by co-defendants and
other witnesses -- summaries Moore’s attorneys said prosecutors had slanted
against him, despite prosecutors’ ethical obligation to make a balanced
presentation of the facts.

In an interview room, Valder then questioned him again about Moore. In 19
separate answers, Spartin said that he wanted to be helpful, but he had
nothing incriminating on Moore. "I’m not going to lie," he said.

Spartin said the summaries seemed to indicate there was enough evidence to
"hang" Moore’s company and Moore himself.

Valder took Spartin into the grand jury room, then carefully crafted a
question that avoided asking what Spartin actually knew about Moore’s
involvement.

"Do you recall that you told [postal inspectors] that, in your judgment,
Moore and Reedy did know that Voss was receiving money from Gnau relative
to the [procurement contract]?" Valder asked.

"That is my opinion, yes sir," Spartin replied.

Grand jurors never learned of Spartin’s 19 earlier denials.

Moore’s lawsuit argued that Valder used similar threats to slant the
testimony of a second witness.

Prosecutors asked Frank Bray, a mid-level employee of Moore’s company, to
read and confirm as truthful a 22-page summary of his statements that
prosecutors had prepared.

When Bray and his lawyers realized the summary intimated that Bray knew
Moore had knowledge of the bribes, he refused to sign it. Valder threatened
Bray with perjury if he didn’t sign. After a negotiating session that
lasted until 1 a.m., the two sides reached a compromise: Bray would sign
the statement as drafted if Valder would allow Bray to tell grand jurors he
didn’t know if Moore was aware of the bribes.

Valder agreed. But then he never gave Bray the opportunity to make that
statement before the grand jury. All grand jurors knew of Bray’s statements
to prosecutors was his summary, which he’d told prosecutors had been
wrongly slanted against Moore.

The Justice Department’s Office of Professional Responsibility found
nothing wrong with such conduct. It exonerated Valder 19 months after Moore
filed his complaint.

One of Moore’s criminal lawyers, Robert Bennett, another former U.S.
attorney who recently represented President Clinton in the Paula Jones and
Monica Lewinsky cases, called the case "an outrageous and shameful exercise
of prosecutorial power. The power was frighteningly abused."

Valder never returned phone calls seeking comment.

Paid For Mistakes

Moore figures he made two mistakes.

He had criticized the government loudly and publicly when the Postal
Service refused to look at his company’s new scanning device.

Then he’d opened his books to investigators when they inquired about his
relationship with Gnau, because he knew he had nothing to hide.

He believes his criticism of the Postal Service prompted the government’s
initial investigation, an accusation the government has denied. Then, after
he’d opened his books, he learned through third parties that Valder was
feeding the information to a federal grand jury, trying to connect it to
the bribery scandal.

"I did not believe this could happen to somebody like me in America," he
said. "I’m a patriot, businessman. ... I got to the pinnacle of my success,
and these guys use criminal statutes to bring me down when I hadn’t done
anything."

Moore was elated to be exonerated, but his professional career was in
ruins. He’d been removed from his position as head of the company after his
indictment, and competitors initiated a hostile takeover. They bought the
company and its extensive research on equipment, then promptly merged with
existing operations, putting 3,000 employees out of work.

Moore rebounded by establishing a profitable consulting business, but he
still felt angry that he never got his day in court.

"It’s one thing to wave your arms around and rail about this type of thing,
but I couldn’t get the issue of accountability out of my mind," he said.
"These people aren’t accountable. They get away with things like this and
claim this ‘immunity.’

"They can literally lie, cheat and steal."

His decision to sue the government occurred by chance.

He met Paul "Mickey" Pohl, a top litigator in the Pittsburgh office of the
Cleveland firm of Jones, Day, Reavis and Pogue -- the nation’s
second-largest law firm -- while on vacation in Hawaii.

While his firm is not known for suing the government, Pohl was intrigued by
the case. He thought it might offer an opportunity to change the law
surrounding federal immunity.

Pohl took the case on contingency. Moore agreed to pay all his expenses.
The suit, filed in a Texas federal court, sought damages of $30 million.

Moore’s civil suit accused Valder and some postal inspectors of prosecuting
him because he had criticized the way the government did business.

The suit also charged that:

Valder told several postal inspectors in the presence of a grand jury
witness that he did not care whether Moore was guilty -- he just wanted to
secure a "high-profile" indictment to further his career.

- - Valder and postal inspectors intimidated and coerced witnesses into
changing their testimony to incriminate Moore.

- - Valder concealed evidence of Moore’s innocence.

- - Valder manipulated witness testimony and presented to the grand jury
false, incomplete and misleading written witness statements.

- - Prosecutors lost, destroyed or concealed from the grand jury exculpatory
information.

- - Prosecutors disclosed grand jury testimony to third parties in violation
of grand jury secrecy rules.

- - Prosecutors withheld exculpatory information from Moore after the grand
jury indicted him -- a violation of Moore’s discovery rights.

In its responses, the government claimed absolute immunity, which is
designed to free the judicial process from the harassment and intimidation
associated with litigation.

Moore’s lawsuit has been appealed to the Supreme Court, but the only part
that remains alive is a complaint about the action of postal inspectors,
although appeals are pending on court decisions that held that Valder’s
grand jury conduct was immune from prosecution.

When Moore speaks of the outcome of his case against Valder and the postal
inspectors, he insists he will not stop until someone tells him he can’t
push the matter further.

He finds it hard to accept that the government cares so little about abuses
like this, which do real harm to citizens.

"The fact of the matter is ... we’ve got judges’ opinions time and time
again showing the government did this to these people and the government
says they did nothing wrong.

"I want to prove once again that if I want to complain about the government
of the United States, I can do it. And I want to show that you shouldn’t
get punished for doing that."

Checked-by: Richard Lake