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Hiding the facts (cont.) Pumping up the charges Hiding evidence favorable to a defendant can clearly help a prosecutor win a conviction. And sometimes, the Post-Gazette found, it can help a prosecutor bring far more serious charges than the facts would warrant. Consider the case of Norberto Guerra and Ramon Jimenez. They went to trial in January 1995 on charges of conspiring to bring more than 7,480 pounds of cocaine into this country. Witness after witness testified in Miami that they were the kingpins in the drug-smuggling enterprise. But they weren’t. Guerra and Jimenez had worked on a boat that smuggled drugs and they admitted that. They knew little else about the operation. They didn’t know many of the witnesses who testified about their lofty status as drug lords. They also didn’t know that most of these witnesses were paid government informants who’d played key roles in the drug-smuggling venture. It was in the interest of these witnesses to pin the rap on someone else so that their own roles wouldn’t face scrutiny. Time after time, attorneys for Guerra and Jimenez requested that prosecutors turn over background information on the witnesses, because their clients insisted the testimony was laced with lies. Prosecutors insisted there was nothing to turn over. It wasn’t until June 1995, after Guerra and Jimenez were convicted and sentenced to 20 years in prison apiece, that they learned the depths of the government’s deceit. A hearing revealed that federal agents and prosecutors had hidden or destroyed hundreds of pages of interviews with their key witness, Raul Sanchez, a long-time drug smuggler who insisted Guerra and Jimenez were among his top lieutenants. Prosecutors also hid the fact that this key witness had confessed to being involved in at least two murders. This same witness had assured defense attorneys during the trial that he’d received no offers of leniency in exchange for his testimony. Yet in the evidentiary hearing on the charges of misconduct, the judge learned prosecutors had indeed promised Sanchez leniency for his help. That leniency offer was rescinded after Sanchez lied to agents to protect another person who was a target in the same drug probe. Yet defense lawyers never saw his failed polygraph test, which should have been turned over as discovery material. As the judge pointedly made clear: A star prosecution witness who lies to the prosecution might be eyed with some suspicion by jurors. There were dozens of other discovery violations: Plea bargains and payments between the government and witnesses weren’t mentioned to defense attorneys. Criminal records were not turned over. In one instance, prosecutors gave defense attorneys the criminal background sheet on witness Leonardo Alvarez, as required by law. They missed one small detail, however: a murder conviction. U.S. Magistrate Linnea Johnson grilled Assistant U.S. Attorney David Cora. "I have no explanation for why it was done that way," Cora testified. "Sometimes we hand over rap sheets. Sometimes the rap sheets are indecipherable so we don’t hand them over that way. I have no explanation for that, your honor." Guerra and Jimenez were clearly guilty of something, but Johnson agreed with their attorneys that the case against them should be dismissed. To allow a prosecution to proceed where the government itself has failed would be "wrong," Johnson ruled. So Guerra and Jimenez went free. The witnesses against them received much lighter sentences than they’d have faced had the trial not been marred by multiple discovery violations. Cora and the agents who helped him set up the case went back to their jobs. No one in the U.S. attorney’s office was disciplined for the debacle. Bowing to pressure The pressure to win convictions also played a role in many of the discovery violations found by the Post-Gazette. The bigger the case, the more the pressure. Xioa Leung was arrested in China in 1988 for his part in a drug smuggling operation to the United States. American lawmen lauded his arrest as one of the first efforts to cooperate with the People’s Republic of China in stopping drug trafficking. Another Chinese national, Wang Zong, was prepared to identify key players in the drug smuggling operation — a perfect witness for the prosecution. And no wonder. To ensure his testimony would suit prosecutors, Chinese police officers in 1988 tortured Zong for a month. They kicked him, dragged him through the streets, blindfolded him, and shocked him with an electric cattle prod. He received little to eat or drink. They denied him sleep. They beat him over and over again and threatened him with death. Obviously, U.S. law prohibits the use of torture in eliciting a witness’s testimony. Yet when Zong testified at the trial of Leung in San Francisco, federal prosecutors insisted they knew nothing about his background that might help defense attorneys discredit his testimony. They lied. Assistant U.S. Attorney Eric Swenson and U.S. Drug Enforcement Administration Special Agent Tommy Aiu had both seen a confidential memo from a U.S prosecutor stationed in Hong Kong. He warned that police in China had threatened Zong with the death penalty if he did not cooperate. That prosecutor, Robert McNair, also said he believed police had mistreated Zong during their interrogation. It wasn’t until Zong was nearly through testifying that the truth leaked out on Jan. 30, 1990. "I request that the court in America safeguard me," Zong said in open court. U.S. District Judge William Orrick ordered the jury removed, then listened as Zong continued. "I am already in a position that I have been treated unfairly. The American government and the American judge, I don’t know if they’re aware of that." As Zong recounted his torture in China, the judge thought that Swenson and Aiu had been duped by Chinese officials along with everyone else. He appointed a former federal prosecutor, Cedric Chao, to investigate, then declared a mistrial. In late 1990 Orrick ordered a new trial after ruling that American lawmen had been "overwhelmed" by their collaboration with the Chinese. But Chao would soon learn that it hadn’t been U.S. lawmen who were duped. He won the release of more and more information from the U.S. attorney’s office, and the long-hidden McNair memorandum from the Hong Kong prosecutor’s office finally was turned over. By the spring of 1993, Chao was able to show that Americans agents knew from their first trip to the Far East that Zong had been tortured. Because of the prosecutorial misconduct, the judge gave key players in the drug smuggling operation light sentences. In October 1993, he permanently blocked Zong’s return to China, calling the case a flagrant violation of the constitutional rights Zong was entitled to while on U.S. soil. The judge accused Swenson of lying and covering up evidence in a "tunnel vision approach to winning the case." "The numerous instances of invidiously egregious conduct of important officials of the U.S. government shocks the conscience of this court," Orrick wrote. The judge ordered the Justice Department’s office of professional responsibility to investigate him for perjury and obstruction of justice. Nothing was ever made public about that probe. Swenson was transferred shortly thereafter from the criminal division to the claims and judgments unit, where he is responsible for collecting on unpaid student loans.
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