Defense: Let Jury Know Why Star Witnesses Talk
by Thomas MacMillan | Jan 28, 2014 8:22 am
Posted to: Legal Writes
(Updated) A judge in the ongoing “Operation Bloodline” drug-gang courtroom drama heard a plea to pull back a “curtain”—on the “minuet” between the government and its star witness.
That request came Monday afternoon from attorney Richard Reeve, who represents one of three men currently on trial for drug conspiracy in front of Judge Ellen Bree Burns in federal court in New Haven.
The men are defendants in Operation Bloodline, the largest drug-gang sweep in state history.
Pacing the courtroom, Reeve entreated Judge Burns to allow him to put an expert witness on the stand, to talk about what really happens when an alleged drug kingpin turns into the government’s star witness.
That’s what’s happening in this case, just as it has in the two previous trials to emerge from Operation Bloodline. In each case, a high-level drug dealer has played a key role for the prosecution, offering the evidence that has so far led to guilty verdicts for three allegedly lower-level dealers tried in the two previous cases.
In this, the third case, the cooperating witness is a man nicknamed “Nature,” who has pleaded guilty to his involvement in the drug conspiracy. He took the stand Monday afternoon as part of the government’s pursuit of guilty verdicts on conspiracy charges against Robert Santos, Philip Bryant, and Richard Anderson, who have pleaded innocent.
As in previous Bloodline cases, the defense has sought to discredit the government’s main witness by pointing out that he acted out of self-interest by testifying, that he has an incentive to lie to help the government and get a smaller sentence.
Attorney Reeve took that defense tactic to a new level Monday, by asking the judge to let him bring in another lawyer—as an expert witness—to explain to the jury just how the transactional “dance” between cooperator and prosecutor can work.
Assistant U.S. Attorney S. Dave Vatti objected to Reeve’s motion. He said the cooperation process is transparently recorded in a document that can be entered as evidence.
Judge Burns Tuesday morning denied Reeve’s request without prejudice.
Reeve’s impassioned plea came at the end of the fifth day of trial, after the jury had been dismissed for the day. Reeve said he would like to put attorney John Donovan on the stand as an expert witness on cooperating defendants.
That’s not necessary, said Vatti. All the jury needs to know is spelled out in the cooperation agreement between the government and its key witness.
“I disagree,” said Reeve. “There is a dance that is done with cooperating cases.” The cooperation agreement doesn’t capture “the minuet of the process,” he said.
Reeve offered an example of a dance step. If there’s a problem during pre-trial talks with the defendant, the prosecution can get up and say, “‘I think it’s time for a break so you can talk to your lawyer,’” Reeve said. “What’s really happening under the surface?”
A cooperating defendant is looking for the government to write a “5k 1.1 motion,” which enables the judge to sentence the defendant to less than the mandatory minimum.
In theory, the judge sets whatever sentence he or she sees fit. In reality, Reeve said, “in most courthouses,” a 5k 1.1 motion results in an average sentence of “at least 50 percent from the bottom end of the sentencing guidelines.”
The cooperating defendant knows that. But the jury doesn’t, because when cooperating witnesses take the stand, they have to say “Gee, I have no idea” what sentence they will receive, that it’s simply up to the judge, Reeve said.
“The jury is left in the dark,” Reeve argued. Just as the government needs a federal drug agent as an expert witness to “demystify the codes of the drug business,” the defense needs an expert to demystify the cooperation process.
“Let’s not put blinders on the jury. It’s not fair. It’s not right,” Reeve said. He compared the situation to the Wizard of Oz. “We need to take the cooperation process out from behind the curtain.”
But juries are kept in the dark in all sorts of ways, rebutted Vatti. Juries aren’t permitted to know lots of information during a trial, like the criminal records of defendants, he said.
Expert witnesses are only permissible if the jury needs their testimony to reach a verdict, Vatti said.
Reeve wants to argue that defendant cooperation is “some sort of dance,” Vatti said. But “the government doesn’t recommend any particular sentence.” That’s entirely up to the judge.
You can’t say that “this guy is going to get a 50 percent reduction because of national statistics,” Vatti said. “As I stand here today, I have no idea what your honor is going to do with” the witness nicknamed Nature.
“I don’t know either,” said Judge Burns.
“I don’t think I’m going to grant it,” she said of Reeve’s motion. But promised to “look it over more.”
Past Independent stories on Operation Bloodline:
• “Bloodline” Dealer Found Guilty
• On The Stand, Freeman Is No “White Boy Chris”
• 6 Rental Cars + 1 Stash House = Big Drug Dealer?
• TXT From B.O. To Big Dog: “14s 36h”
• Bloodline Jurors Learn The Drug-Dealing ABCs
• YouTube, Facebook Helped Bust The Bloods
• Biggs’ Jailhouse Plea: Don’t Believe The Rap
• Wiley Don Raps Feds From Prison
• “Bloodline” Cop Wiretapped Sister’s Boyfriends
• Guilty Verdict In “Bloodline” Trial
• Bloodline Defense Lawyers: That’s All You’ve Got?
• Drug Trade’s “Great White Hope” Grilled
• “Bloodline” Trail Leads To White Boy Chris
• Judge To Feds: Fix Your “2nd Class” Mess
• “Top” Blood, Rapper’s Pal, Pleads Not Guilty
• Feds Indict 105 In Tre Bloods Probe
• “Operation Bloodline” Nets Alleged 61 Tre Bloods