The U.S. District Court for the Eastern District of Virginia, Alexandria, Division, has until recently been renown for one overriding characteristic–a “rocket docket,” where cases zoom to the finish line at breakneck speed. The rocket docket favors the prosecutors, those well-heeled U.S. Attorneys who have no end to money and resources. Several U.S. attorneys may work on one case there–while the defendant has a lone counsel.
Especially since 9/11, everything about the federal court there has been designed to intimidate litigants and attorneys. From the days when it used to be a collection of airy courtrooms in an old post office building, where lawyers like myself could literally knock on the door of judge’s chambers and talk to him, it has become more like a temple with gods sitting in judgment.
The Eastern District has given us two judges who are heroes to criminal defense attorneys who have little to like about federal court these days–Judge Leonie Brinkema, presiding over the trials of Zacarias Moussaoui and the Alexandria 11, and Judge Gerald Bruce Lee, who recently set off sparks when he threw out the conviction of Jay Lentz.
Lentz was charged with the federal crime of kidnapping, along with murder, arising out the disappearance of his wife several years ago. There was no body, no physical evidence, and no crime scene. Pure circumstantial evidence was all the government had.
Judge Lee did not allow the government to introduce evidence that it hoped would show Lentz to have a pattern of stalking behaviors. Lee ruled that the possibility of prejudice would outweigh any evidentiary value.
After Judge Lee threw out the conviction (much to the sadness of the prosecutors, the jury did not recommend the death sentence that Ashcroft and his prosecutors so longed for), jurors reported to defense attorneys that the banned evidence–consisting of dayplanners of the victim, Lentz’s wife–made its way into the jury room. The jury considered it, and some of them say it made them change their minds and vote Lentz guilty.
How did the evidence get there? The defense attorneys never had it in their possession. The prosecutors swear that they know nothing of it, and besides, they say, what does it matter? The conviction has been overturned.
It matters a lot to Judge Lee. And he says he is getting to the bottom of it. As reported in The Washington Post, Lee summonsed the chief prosecutor, Paul McNulty, and the chief public defender, Frank Dunham, to his courtroom and ordered them to investigate the matter. The arrogant U.S. attorneys objected, of course.
When Judge Lee asked one of the prosecutors whether or not she would concede that somehow the evidence got into the jury room, she coyly responded that she would not. Whereupon Judge Lee stood up at the bench, reached into a box holding evidence that had been reviewed by the jury, and picked up the two disputed planners. “I can make this judgment right now,” he said.
The prosecutors are not pleased with Judge Lee’s inquiry, nor with the prospect of having to testify in front of him on September 8, when he will conduct an evidentiary hearing. They think that Judge Lee is violating the law. Assistant U.S. Attorney Vincent Gambale warned Lee, “I don’t think this court is charged, or even should engage in, a wild goose chase.”
“A wild goose chase”? That’s what it is called when a judge wants to get to the bottom of illegal evidence getting to the jury? It sounds like the U.S. Attorneys in Alexandria have something to hide. Otherwise, they ought to welcome an investigation that would clear them of any hint of impropriety.
Like his colleague Leonie Brinkema, Gerald Bruce Lee is not going to be cowed or silenced by Ashcroft’s army. The rude, patronizing prosecutors who speak to a federal judge in this manner think they own the courtroom and the evidence.
Who could blame them the attitude, given the successes their boss, John Ashcroft, has had in trying the turn the judicial system into his own private tribunal?
They may own a lot of courtrooms in this country. They may have a lot of judges in their pockets. But they don’t own Judge Gerald Bruce Lee.
Lee, an African-American who grew up in a humble beginnings and was a zealous defense attorney before he was a judge, has not forgotten that the law is a mandate that even federal prosecutors have to live by. At least in his courtroom.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: firstname.lastname@example.org