FEDERAL JUDGES BLAST TRIAL'S PROSECUTION

Drug Case's Missing Evidence Called Unfair

Two federal judges have accused the U.S. Attorney's Office in Orlando
of denying a fair trial for a businessman who was convicted three
years ago of drug dealing and other charges.

Prosecutors repeatedly withheld favorable evidence from the defense
and failed to disclose that witnesses lied on the stand, according to
a highly unusual and extremely critical study of the case prepared by
U.S. Magistrate David A. Baker.

Baker also attacked prosecutors for refusing to supply him with
documents that could upend the conviction and lead to a new trial for
Antonino "Nino" Lyons, a well-known nightclub owner from Brevard County.

"The absence of whole categories of information renders it virtually
impossible to reassure all concerned that the defendant received a
fair trial," reads the 66-page report that was released Wednesday.
"The government's refusal to produce the documents, despite court
orders to do so, leaves the court with nothing but an inference that
they indicate prosecutorial misconduct or other improprieties."

Lawyers and others in the federal courthouse in Orlando say they have
never seen a similar review of a case.

Lyons, who also owned clothing stores in Orange and Brevard counties,
was convicted in November 2001. The former All-American High School
basketball player had served as vice president of the NAACP chapter in
Brevard. Numerous relatives and church members drove daily to Orlando
to show support during his trial.

Sentences reduced

No drugs were seized during the investigation and no wiretaps or
tape-recordings were presented as evidence that Lyons, 42, dealt
drugs. Information that he sold more than $6 million of cocaine came
from 26 convicted drug dealers, most of whom received reduced
sentences as rewards for testifying.

He also was convicted of selling bogus designer clothing, and of
carjacking for commandeering a car to chase a man who robbed him of a
duffel bag of cash.

Last April U.S. District Judge Gregory A. Presnell, who handled the
trial, ordered Baker's study to settle fairness questions raised by
Lyons' defense lawyers.

Baker's report described more than 10 instances of withheld evidence,
which Presnell described as "additional evidence of prosecutorial
misconduct."

On Friday the government agreed to release all the missing documents
to the judges. They must be submitted by Jan. 20.

"When the court believes there is prosecutorial misconduct, the court
under the law can see those documents," Chief Assistant U.S. Attorney
Jim Klindt said Friday afternoon. "Now that it is very clear that the
court is focusing on prosecutorial misconduct, we intend to turn over
all of those documents."

Lyons, who awaits sentencing, remains in the Seminole County Jail. He
could face as long as life in prison.

'Upsetting and shocking'

"The story of this case is that the government should be held
responsible for the manner in which they put together this
prosecution," said Lyons' lawyer, Gregory W. Eisenmenger of Melbourne.
"This was a case that was concocted completely on the testimony of
convicted felons, telling the government what it wanted to hear. It
becomes extremely upsetting and shocking that the government knew
these people were not telling the truth."

The government denies intentional wrongdoing.

"We have conceded from the outset that mistakes were made in this
case. We did not turn over some things we should have," Klindt said
Friday. "We're disappointed that the court views our mistakes as
prosecutorial misconduct because prosecutorial misconduct suggests
intentional or purposeful wrongdoing."

Assistant U.S. Attorney Anita Cream said she destroyed all notes and
records of the forfeiture phase of Lyons' trial, which has yet to
occur, according to Baker's report. She said she rarely took notes in
pretrial interviews, preferring to rely on memory and agents' notes.
But the report noted that Cream could not remember whom she
interviewed and that no records of any kind existed for one of the
witnesses.

"The question therefore remains -- how did the government know how to
call [inmate] Clements as a witness?" Baker wrote. "If AUSA Cream
relies on agent's notes and no agent's notes exist, how could she
prepare for the examination?"

Information kept from Lyons included a statement from one jailed
witness to a federal agent that "some of the guys didn't really know
Nino but they made up stories," the report says.

Assistant U.S. Attorney Bruce Hinshelwood, who the report said entered
a secret deal with a witness, was faulted for not notifying the court
when the man lied about the agreement under oath. The witness was
promised a reduced sentence for testifying but denied receiving the
promise.

"It is the obligation of the prosecutor to correct that false
impression," Baker wrote, calling Hinshelwood's silence "the
appearance of prosecutorial misconduct."

Previous rulings

It is the second time in the case that Hinshelwood has been accused of
prosecutorial misconduct. The 11th Circuit Court of Appeals in Atlanta
cleared him of the earlier accusation but, at the same time, ruled he
had withheld evidence favorable to Lyons.

That ruling also was the second time that the higher court overturned
rulings by Presnell in the case. The first came when Presnell ordered
Lyons' release on bail. The second came in 2002 when he ordered a new
trial on grounds of prosecutorial misconduct.