Opening arguments were heard on January 22, 2013 in the Newark, NJ federal courthouse for the retrial of Abu Ghraib whistleblower, Paul Bergrin. Bergrin, 56, was a prominent defense attorney in New Jersey who had previously served as a JAG lawyer in Iraq and an AUSA in the Newark U.S. Attorney’s Office. Bergrin’s highly successful private practice included many prominent clients from the arts and entertainment industry. Now he stands accused of murder, racketeering, drug trafficking, prostitution, bribery, witness tampering and money laundering spanning from 2001 to 2009. A previous federal trial ended last year with a hung jury.
High profile criminal defense lawyer and vocal Iraq War critic Paul Bergrin is now facing a host of federal charges
Bergrin was among the first military people to expose evidence that hooding, nudity and the use of dogs were extensively used at Iraq’s Abu Ghraib prison. In 2004 and 2005, he sought to have Bush, Cheney, Rumsfeld and other administration officials held accountable for various humanitarian violations in Iraq that constituted war crimes. When Bush announced in 2004 that he wanted Abu Ghraib destroyed, Bergrin got a court order to stop the action, declaring the prison a crime scene.
Bergrin is also the only attorney in U.S. military history to win the right to put a high-ranking military official, Col. Michael Steele, on the stand. In 2006, Steele commanded a unit of the 101st Airborne Division in Iraq. Under his command, Iraqi civilians were repeatedly detained and villages regularly raided by U.S. soldiers. One such raid, Operation Iron Triangle, involved the killing of four unarmed Iraqis. U.S. soldiers, one of whom Bergrin is representing, were given orders to shoot on sight any Iraqi male.
Bergrin was one of the first people to expose various war crimes committed at the notorious Abu Ghraib prison
In April 2009, Bergrin announced his intention to reopen one of the Abu Ghraib cases after the Obama administration released documents implicating the Bush White House in the authorization of torture at the prison. The following month, Bergrin was arrested on a variety of federal charges. At his bail hearing, prosecutors filed a detention request by a Drug Enforcement Agency special agent claiming that Bergrin should be denied bail. The government claimed in their filing that Bergrin had overseas assets, four false passports and had ordered an FBI informant to kill a witness. Bail was denied.
Many believe it to be no coincidence that Bergrin’s federal charges followed his dogged whistleblowing against various elements within the U.S. government. His actions made him a thorn in the side of those overseeing the ongoing illegalities in Iraq and his subsequent takedown could hardly be seen as a surprise. The feds appeared to be seeking to permanently silence him.
Bergrin, as in the first trial, would represent himself. AUSA John Gay began the retrial’s opening argument with a laundry list of accusations against Bergrin that seemed to defy logic. “Why would a drug dealer go to a regular lawyer when he could go to Paul Bergrin?” Gay asked rhetorically in his opening. Gay alleged that drug dealers would routinely purchase large amounts of cocaine from Bergrin soon after retaining his services. The government never fully explained in its opening why or how a prominent lawyer like Bergrin would engage in the wide array of illicit activities outlined by the prosecution, instead making the blanket assertion that it was done to “satisfy his personal lust for wealth and success.”
The Newark, NJ U.S. Attorney’s office is pulling out all stops to secure a conviction against Bergrin
Bergrin opened strongly, telling the court he is the victim of a prosecutorial conspiracy that is relying on a parade of low-life criminals and known perjurers who would say and do anything to stay out of prison. Bergrin repeatedly told the court that the government witnesses “know how to play the game” and “know how to manipulate the system.” He promised jurors that they would recognize the lies and fabrications that government witnesses would try to pass off as the truth. "You are going to hear and you are going to experience in this case the darkest side of justice that any human being could imagine. It’s going to turn your stomach," Bergrin told the court. While promising that reasonable doubt would preclude his conviction, he urged jurors to keep an open mind.
Bergrin stood at a lectern and spoke directly to the jurors as he delved into great detail about the nature of the plea agreements that the cooperators had forged with the government. He seized upon language in the agreements granting the U.S. attorney’s office the exclusive right to determine if a witness’ testimony is truthful. Bergrin then, in a booming voice, advised jurors that “you are the judges of the facts, not them!” as he pointed at Gay and the prosecution team.
The judge appeared to be resigned to Bergrin’s animated courtroom tactics, but did allow a prosecution objection at one point in Bergrin’s opening. The prosecution objected to Bergrin’s description of his efforts to bring Bush and Cheney to trial for their crimes in Iraq. Typically, lawyers are given wide latitude in opening remarks, but the government was having none of it. The judge sustained their objection and Bergrin was cut short on the matter. He was able to subsequently work some of the issue into a later part of his opening and jurors were left wondering what it was that the government did not want them to hear.
Bergrin’s attempt to bring charges against Bush and Cheney figured prominently in his opening argument
Much of the government’s case centers on “Oscar,” an alleged hit man from Chicago. AUSA Gay repeatedly told jurors that they would hear about Bergrin’s involvement in the solicitation of murder directly from the hit man. Bergrin portrayed Oscar as a caricature of a hit man, calling into question whether Oscar was actually a murderer, or merely playing one for the government. Bergrin explained how Oscar claimed to be the son of the imprisoned leader of the Latin Kings street gang. Bergrin claimed to have represented real Latin King gang members in the past and immediately recognized Oscar as a fraud, and a likely government informant. The allegedly incriminating calls with Oscar amounted to nothing more than “roleplaying” according to Bergrin. He recounted some of Oscar’s more outrageous claims, including having smuggled cell phones to his imprisoned father at the federal supermax facility in Florence, CO where every movement is closely monitored and recorded. He explained how repressive the supermax facility is and ridiculed the notion that cell phones could be smuggled to a prisoner. Bergrin also told the court how an initial call to the supposed gang leader’s cell phone was answered with a message for a landscaping service. In short, the government’s hit man and star witness was reduced to an opportunistic bungler.
The supermax facility in Florence, CO, where one of Bergrin’s accusers claims to have successfully smuggled cell phones, is the nation’s most secure prison
Bergrin’s opening also punched numerous holes in the government’s other witnesses. Various press accounts had played up the anticipated testimony of Bergrin’s reported law partner, Thomas Moran. AUSA Gay promised jurors in his opening that Moran would offer testimony of Bergrin’s involvement in the murder of an informant who was cooperating against one of Bergrin’s law clients. Bergrin explained how Moran was never his partner or associate and had merely rented office space from him. He also revealed that Moran was a serial drunk driver who had injured a retired police officer and his family in a serious collision while driving drunk. Moran received protection from prosecution in return for his cooperation with prosecutors. Bergrin also told the court that while cooperating against him, Moran had been involved in at least one other drunk driving accident and had again escaped punishment in return for his ongoing cooperation.
Bergrin, despite having been convicted of no crime, languishes in Brooklyn’s Metropolitan Detention Center
Bergrin effectively painted a picture of criminals eluding punishment in return for testimony against him. According to Bergrin, criminals were bragging about being released after telling prosecutors what they wanted to hear. He described a recorded conversation between cooperators in which one is schooling the other about telling prosecutors what they want to hear about Bergrin.
Bergrin had extensive experience representing real Latin King gang members and almost certainly would have immediately recognized the government’s plant as an imposter
All of this is standard fare for federal prosecutors who routinely secure convictions with the subornation of perjured testimony. Experienced criminals know that they can often escape serious consequences by making accusations against others, even if their testimony is implausible, ridiculous and utterly false. Federal prosecutors put the government’s seal of approval on their lies by assuring jurors that although the witnesses are proven liars and criminals, this time they are telling the truth and should be believed. These witnesses are carefully coached by prosecutors so as to organize their lies and make their tales plausible to jurors. It is nothing less than theatre.
USDJ William Martini made several objective rulings in Bergrin’s earlier trial and was rewarded with an ordered recusal
While Bergrin appeared to make significant inroads with his opening argument, he ultimately faces a daunting task. His prior prosecution ending in a mistrial was before USDJ William Martini. The government was unhappy with several of Martini’s rulings and embarrassed by his admonitions. During Bergrin’s earlier trial, Martini had chastised prosecutors for making inappropriate public comments and for sending him a holiday greeting card, viewing it as an effort to curry favor with the judge. The government, unhappy with Martini’s perceived fairness to the defense, filed motions with the Third Circuit Court of Appeals to have him removed from the case. Judicial recusals are exceedingly difficult to secure and the motion was viewed as a longshot at best. Nevertheless, in a stunning ruling, the Third Circuit Court of Appeals removed Martini from the retrial. USDJ Dennis Cavanaugh, widely considered to be pro-government in his rulings, is now presiding over the Bergrin retrial. This time around, the government is leaving nothing to chance. They are determined to secure a conviction by any means necessary, invoking their tired reasoning of the end justifying the means.
The Third Circuit Court of Appeals ordered some advantageous judge shopping for the prosecution
Even with a switch in judges, the government will still have to work hard to secure a conviction. Judge Cavanaugh at times seemed puzzled on the bench as Bergrin scored points with jurors. He alternately looked anxious, exasperated and resigned to his fate as he listened to Bergrin punch holes in the prosecution’s various assertions. While likely looking for ways to steer the trial in favor of the government, the judge likely realizes he has a tiger by the tail and will probably just let the matter play itself out as Bergrin is an experienced courtroom brawler.
USDJ Dennis Cavanaugh is widely considered to be a reliably pro-prosecution jurist
Many are counting Bergrin out, assuming that his conviction is a near certainty. The fed's obscene and ridiculous 99% conviction rate can easily give one good cause to so assume, but this is no ordinary criminal trial. Bergrin is a most capable opponent and determined to fight his accusers to the end, knowing that a conviction will bring a certain life sentence. Even if successful, he has still spent the last four years in federal detention, denied his right to bail. Regardless of the outcome, the feds have, at least for now, successfully silenced a vocal and effective critic.