For the first time in the history of the court system in Western Pennsylvania, an anonymous jury will be seated today for the retrial of Terrance L. Cole, a Penn Hills man accused of being the largest cocaine kingpin ever prosecuted here.
Jurors will hear the case as usual, but their names, addresses and employers will be kept secret, and they will be prevented from having any contact with any of Cole's family or friends at the federal courthouse.
Federal prosecutors said the precaution was necessary because of suspicious jury conduct at Cole's mistrial in March, which is the subject of an ongoing investigation, coupled with what they described as Cole's efforts to intimidate and murder government witnesses.
Cole's first trial ended with the jury deadlocked 10-2 in favor of conviction.
But the refusal of the two holdout jurors, Kevin Lewis, 28, of Homestead, and Joseph Olasin, 49, of Apollo, to deliberate led agents to question whether Cole or his entourage had influenced them.
Prosecutors had previously refused to comment on any investigation, but sealed court papers filed since then have revealed their concerns that the jury was indeed compromised.
U.S. Attorney Mary Beth Buchanan confirmed yesterday that the FBI is actively probing the case.
"We are fully investigating the circumstances of the mistrial," she said from Washington, D.C.
She would not discuss any specifics.
But in a sealed court filing requesting the anonymous jury -- which Buchanan said was mistakenly made public by the clerk's office -- Assistant U.S. Attorney Gregory Nescott described a series of unusual developments involving Lewis and Olasin.
Neither man could be reached, but both had previously denied they were paid or otherwise influenced to hold out.
Nescott said a case agent from the Internal Revenue Service saw Lewis winking at Cole and laughing with or at Cole's friends in the gallery, and he said his wife saw Lewis waving at a member of Cole's family during closing arguments.
Lewis had said before being selected that he didn't know Cole.
Cole's family said they didn't know him, either. His sister, Saundra Cole, and girlfriend, Theresa Harber, suggested that the government is only investigating the jurors because prosecutors didn't get the conviction they wanted.
But Nescott said the behavior of Lewis and Olasin has to be considered in context with Cole's own conduct.
"Against this background," he wrote, "the testimony at trial revealed Terrance Cole to be a man who used threats and violence as a matter of habit, routinely threatening witnesses or potential witnesses against him, and going so far as to putting a gun in the mouth of his sister Saundra when he thought she had stolen some of his drugs."
In the court filing requesting the anonymous jury, Nescott revealed new information to bolster his claim that Cole had tried to disrupt the government's case.
He said one prosecution witness, Eldridge Hudson, said he was beaten after he testified and that "bounties" of between $100,000 and $500,000 had been offered on the heads of some government witnesses before they testified.
In addition, Nescott noted that Cole's mother, Peggy Godfrey, who regularly attended the trial, has a conviction in state court for intimidation of witnesses.
"The government now has at least one witness," Nescott wrote, "who has told agents that he delivered $25,000 from Terrance Cole to buy off the witness."
Anonymous juries are generally reserved for major organized crime cases, such as the current trial in Manhattan federal court of Mafia boss John "Junior" Gotti.
But it's never happened here, even in the big-time trial of the Pittsburgh La Cosa Nostra bosses in 1990.
Cole's new lawyer, high-profile California attorney Alan Baum, said he didn't object to anonymous jurors as long as it doesn't hinder his jury selection efforts.
He wouldn't comment further on the trial, although he denied that Cole was a threat to anyone and said he had no knowledge of jury tampering.
"Right now I'm a little sensitive about commenting on jury issues before we pick the jury," he said.
Baum has a national reputation for aggressive tactics, but he lost one attempt to get the case thrown out based on "prosecutorial misconduct" involving the previous jury.
He argued that someone from the U.S. attorney's office told the Pittsburgh Post-Gazette that the holdout jurors were being investigated.
Publicity over the mistrial, he said, had essentially "poisoned the well" of potential jurors into thinking Cole is guilty.
Nescott argued that any issues arising from the publicity could be dealt with by careful questioning of jurors. Hardiman rejected the motion.
Prosecutors had not previously discussed the turmoil of the last trial, but in his filing, Nescott recounted some of what happened in the jury room.
Jurors said there were charges and countercharges during deliberations about the two holdouts being "bought." They also said Olasin had made strange comments that all their lives were in danger.
Both Olasin and Lewis denied any misconduct. Lewis told Hardiman that his wink at Cole, for example, happened because his left eye was "messing with me." Olasin told the Post-Gazette that he voted for acquittal because the government witnesses lacked credibility.
Olasin also told the paper that his comments about threats were misinterpreted, and that what he meant was that the jury had to be careful not to convict an innocent man who would then come after them.
Nescott revealed that one juror told the prosecution team he was concerned about Olasin being bought off because Olasin -- a man of "modest means" -- discussed pricing a $37,000 truck the day before the deadlock.
Several jurors were particularly upset that Lewis, the lone black male juror and the only one who lived near the locations in Homestead and Hazelwood where the trial events took place, flatly refused to deliberate.
Nescott expressed concerns about Lewis, too, according to a transcript. He told Hardiman that he had noticed Lewis appeared to be watching the gallery closely during the trial and that agents caught him looking at and laughing with four men seated with Cole's supporters.
"When the agents looked at him," Nescott said, "he covered his mouth."
Lewis told Hardiman that he would abide by his oath to be fair, so the judge decided not to remove him. The deliberations lasted 22 hours before the mistrial.
Afterward, Nescott said, the prosecution team received additional information from a federal employee that Lewis had exchanged "non-verbal greetings/signs" with Cole's entourage in the courthouse cafeteria during the trial.
Regardless of the outcome of the investigation, that kind of thing shouldn't happen this time. Hardiman has ruled that the jury will be partially sequestered under the protection of U.S. marshals, and lunch will be delivered.
The Cole trial is one of the most significant drug cases here in recent years. In terms of sheer volume of drugs and longevity, according to police and agents, Cole's operation may be the largest ever in this region.
During the first trial, imprisoned Dominican drug lord Miguel Duran, 38, of New York, said he supplied Cole with more than 2,000 kilograms of cocaine in the 1990s.
Court records indicate that Cole, used drug money to buy 17 properties worth more than $1 million through his real estate company, T.C. Development of Forest Hills
Agents say he also masked his drug income by either converting it into casino checks from gambling splurges in Atlantic City, N.J., and Las Vegas, or by buying other people's winning lottery tickets in Hazelwood.KDKA-TV
Terrance L. Cole
Torsten Ove can be reached at email@example.com or 412-263-2620.