Judge To Feds: Fix Your “2nd Class” Mess
by Paul Bass | Aug 1, 2012 3:21 pm
Posted to: Legal Writes
Agents charged Michael Smith as an alleged ringleader in the largest federal drug sweep in Connecticut history. Seventy days later, he sits in a Rhode Island jail still waiting to see and hear the bulk of the evidence against him.
He’s not alone. Defense attorneys for many of the 105 people rounded up in “Operation Bloodline,” a May takedown of the Tre Bloods crack-dealing gang, charge that the government created a constitutional disaster by packing so many defendants away in an overcrowded out-of-state private prison with no realistic way to review evidence or obtain a speedy trail as guaranteed by law.
Their complaints resounded with Robert Chatigny, one of three U.S. District Court judges hearing the cases against the 105 defendants.
Chatigny blasted the U.S. Attorney’s office in a pretrial conference two weeks ago for its handling, or mishandling, of this case. He said the problem had reached a “crisis” stage.
And he ordered the government to fix the problem it created.
“I don’t think we should be running a second-class operation because the government indicted 110 [sic] people,” Chatigny fumed at the close of the one-hour, 58-minute pretrial conference with 14 attorneys involved in the case, according to a transcript obtained by the Independent. Click here to read the full transcript.
“I think that if the weight falls on the government to scramble to find a way, then that’s only right,” declared Chatigny.
“I think that if you were on the other side of the case or if it were your loved one who was charged, you would expect to get transcripts of the recordings [of wiretapped conversations], the evidence itself, in the form of the [computer] disks and you would expect to be able to sit with your client or, you know, if you are concerned about the welfare of the person actually charged, have that person sit with his or her lawyer to listen to the evidence and have a meaningful discussion and not have to do it in December after being detained for a period of months since May.”
Marc Silverman, the assistant U.S. attorney whom Chatigny was chewing out, promised to work with defense attorneys to produce evidence more quickly. He also defended the government’s decisions to seek to seal some evidence that could jeopardize the case or the lives of cooperating witnesses.
“Obviously this is not a perfect world in which we’re dealing,” Silverman told the judge at one point.
Judge Chatigny has subsequently granted a government request to extend the “speedy trial” deadline—which would have required it turn over all discovery material to defendants and be ready to go to trial by mid-July—to Sept. 11.
The government has broken the 105 defendants into five batches to be tried separately. In each case the government has successfully moved for extensions to “speedy trial” requirements that it provide evidence to defendants and have a case proceed to trial. It has also moved to restrict how much evidence it must provide to defendants. Two of the 105 defendants remain at large.
The case stemming from the batch of 19 defendants before Judge Chatigny is called United State of America vs. Michael Smith, et al. Smith, according to the feds, served as the “hub” of one cocaine-dealing crew. The Drug Enforcement Agency got to know Smith’s voice well over the course of its investigation, during which it recorded the calls on 22 different telephones for ten months. Smith spoke on many of those calls. (Click here to read an interview from prison with the alleged ringleader of another of the five cases.)
As a result, a big chunk of the evidence the government compiled, contained on 22 CDs, involves Smith. Hours and hours of phone conversations. Mounds of documents.
To date, he has been afforded a total of one and a half hours to review a tiny portion of the evidence against him, long after he was supposed to have had access to the full evidence against him, according to a motion filed in the case Tuesday by his attorney, Diane Polan (pictured) of New Haven. The motion charges that the government has violated Smith’s constitutional right to a speedy trial and effective counsel. The filing opposes a government motion to withhold some of the evidence from Smith because it would jeopardize lives or the larger case.
“To the extent that the government claims that disclosure of any particular document may endanger the safety of cooperating witnesses, confidential informants, etc., the government is under an obligation to specify the particular document or documents so that the court can rule on whether or not the document should be subject to a protective order or redacted and provided to the defendant,” Polan wrote.
“The government is solely to blame for the violations of the defendant’s constitutional rights in this case because it chose to arrest and induct approximately 105 people at the same time without being prepared to fulfill its obligations under the Standing Order on Discovery and the U.S. Constitution.”
Those arguments—and others—sparked extensive debate July 12 in the almost two-hour session with the 14 lawyers in Judge Chatigny’s chambers in Hartford.
Chatigny described as a “crisis” the situation facing the defendants. They’re housed in a notoriously poorly run private prison in Central Falls, Rhode Island. The Donald W. Wyatt Detention Facility for years has faced complaints of overcrowding and trampling of inmates’ rights. (Wyatt officials failed to return messages left seeking comment for this story.) Most of the 103 Operation Bloodline arrestees to date remain locked up there, staring at months of incarceration before having the ability to decide how to plead. Wyatt has 771 beds for maximum- and medium-security federal prisoners awaiting trial under the aegis of U.S. Marshals.
Several lawyers complained to Chatigny that they spend hours driving back and forth to the prison, only to wait for scarce access to rooms in which to share some of the evidence before clients.
They said the prison has only four computers available for all inmates in the entire facility to use. And hours are limited: three days a week. When they do get to listen to some evidence, the machinery doesn’t even always work.
“There was something of a crush of defendants who entered the Wyatt Detention facility around the same time,” prosecutor Silverman acknowledged in the conference. He also acknowledged “some difficulty listening to audio files ... The government’s I.T. [information technology] folks are working to see what sort of fix we might have to easily correct that. If there’s no easy fix, we’ll have to find a way to re-burn these CDs so the defense counsel can listen to the audio files.”
Attorneys also criticized the government’s quest to provide transcripts of phone conversations or summaries of evidence from wiretaps rather than allow defendants to hear the actual recordings themselves.
Defense attorney Margaret Levy cited another federal case a decade or so ago in which her client did get to hear a recorded conversation being used against him. “That’s not my voice,” he told her.
“Frankly, I couldn’t tell whether or not it was his voice,” Levy told the judge, according to the transcript. “[W]e sat down with assistant United States Attorney and the New Haven detective who had been on the task force who knew my client for years and years and years and agreed that that was not my client’s voice, that it was some other guy in this case named Shortie, of whom there were four in New Haven at the same time.” That case was subsequently dismissed as a result.
“All of these defendants who will remain detained for a lengthy period of time will need to listen to the evidence about themselves to say: Is it me? You know, am I conspirator? Is it in my interest to plead guilty? Is it in my interest to go to trial?” added another attorney at the pretrial conference, C. Thomas Furniss.
“Based on all of the concerns that have been raised today,” prosecutor Silverman responded, he will “certainly talk to our I.T. folks and Wyatt about the possibility of more computers. I don’t know how feasible that will be given some of the bureaucracy I expect I would encounter, but I will certainly go back and look at the issue.” He also vowed to sit down with each defense attorney to look at how to expedite the delivery of evidence for their clients’ review.
During the conference, Silverman held firm to the government’s stance that it must withhold some of the evidence from the clients, or in other cases require that attorneys review it with them rather than let them keep it alone in their cells.
“Many of these materials have the potential to reveal the identity of individuals cooperating with law enforcement,” Silverman argued. “[T]he government is always concerned that were the discovery materials to be maintained in someone’s cell, in someone’s personal possession rather than the care of a custodian, there is the potential for intentional or inadvertent disclosure of these materials that could jeopardize the safety and well-being of other individuals.”
So, according to “past practice,” the Wyatt facility holds evidence in custody and lets defendants “review them in the prison library during set hours,” Silverman continued. He conceded that “there’s a long wait time right now” because the case involves so many detainees and so much evidence.
In a “perfect world,” Silverman said, Wyatt would have lots more computers and staffers. “But I think this is where we stand and I think we can set a schedule which will allow the government time to help focus defense counsel on certain aspects of discovery and for defense counsel to help focus their clients on certain aspects of discovery, which will allow sufficient time for a really meaningful review prior to the filing of defense motions and trial in this case.”
A defense attorney in a separate batch of Operation Bloodline cases, Richard Reeve, has agreed to work with the U.S. Attorney’s Office to get more information to more defendants more quickly. Reeve said by email that while they’ve been working together, he is not “satisfied” at this point with the progress.
Tom Carson, a spokesman for the U.S. Attorney, outlined ways he said the office has improved the situation, as reported recently to another judge on the case, Ellen Bree Burns.
• Wyatt is setting aside eight daily three-hour blocks of times for inmates to “use computers to review discovery” and added Tuesday through Thursday evening hours.
• The U.S. Attorney’s Office has sent three more “sets of the discovery materials” to Wyatt.
• Wyatt agreed to buy three more computers.
• Prosecutors have begun meeting with defense attorneys to review “key documents” folders personalized for each defendant, with the hope those attorneys “can direct their clients to the key portions of the discovery that affects them when it is their turn to utilize the computers ay Wyatt.”
Defense attorney Polan’s reaction: “They’re trying to fix things. It’s too little too late.”
Government “Made Its Bed”
Hovering above the quest to improve and speed access to evidence is a more fundamental question: Did the feds create an impossibly unconstitutional situation in the first place by locking too many people up?
The government argues it took dangerous people off the street, people who pose a threat to society.
In Chatigny’s chambers July 12, defense lawyers argued that the feds locked up not just alleged drug gang leaders, but small-fry alleged street dealers who don’t belong behind bars.
The government “just indict[ed] too many people” unnecessarily, argued defense attorney Jonathan Einhorn (pictured above), who represents one of those alleged small fry.
It has made its bed by raising these huge indictments and being unable to supply the discovery and basically saying to the Court, well, you deal with it, Judge ... [Y]ou figure out a way so that they still have their Constitutional rights and we can indict all these people.”
Einhorn called it “unfair” for his client “to sit in jail until next April merely because the government just [because] there’s just no facility to give him an honest chance to look at his discovery.”
“It was the government’s choice to indict these people and they should be ready for trial,” Einhorn said.
Prosecutor Silverman responded that “the government did not indict everyone intercepted on the phone calls.” He said the feds undertook a “selective process” to decide whom to nab based on such criteria as the amount of drugs sold, the target’s role in moving those drugs, “or perhaps the individual’s history.”
“In our view,” he concluded, “the charging was appropriate in this case.”
Tags: Operation Bloodline, Judge Robert Chatigny, U.S. Attorney, Marc Silverman, Diane Polan, Jonathan Einhorn, Donald W. Wyatt
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Very 1987. Why are the Feds storing data on writable CDs when solid state memory is so cheap, so fast, and has so much capacity?
I sometimes do business with government agencies. Not all government computers have the ability to read USB drives. Some agencies are working with very old technology.
The government was overzealous and simply grandstanding when these arrest were made.Obviously bit off more than it can chew and so since the arrestees are among the marginalized in our society they assumed the violation of these individuals constitutional rights would go unchallenged.They simply are looking to build their informant base.It is and never was about infiltrating gangs. How many people have been shot and killed since this roundup? Drugs are bad but the war on drugs is far worse.
All of the defendants should be released with prejudice (meaning they can’t ever be tried on these charges) and the entire prosecutor’s office should be sent to that same prison facility for 60 days. Holding the government agents personally liable for their actions is the only way to teach them that we’re serious about constitutionally guaranteed rights.