In the Supreme Court case of Lee v. U.S., Justice Robert Jackson famously observed “The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” Similarly, U.S. v. Wallach states, “A prosecutor who does not appreciate the perils of using rewarded criminals as witnesses’ risks compromising the truth-seeking mission of our criminal justice system.” The problem with these well-intentioned warnings is that they assume truth-seeking is the government’s ultimate goal in U.S. courts. Frequently, nothing could be further from the truth as convictions, and often conviction at any cost, is the government’s singular goal in these matters.
Supreme Court Justice Robert Jackson warned about using rewarded criminals as witnesses against others
The federal trial of Abu Ghraib whistleblower, Paul Bergrin, is sputtering along with no clear end in sight.
See earlier Bergrin article
While there is certainly nothing new about government prosecutors suborning perjury, Bergrin is facing a veritable wall of such fallacious testimony. It is the prosecution’s version of Shock and Awe. The government is resorting to producing an historically unsavory lineup of proven liars of the lowest order. While conceding their previous falsehoods, often told under oath, the government has assured the jury that this time they can be believed. The ridiculousness of this assertion would be laughable if a man’s life did not hang in the balance.
Attorney Paul Bergrin is squaring off against an unprecedented assemblage of notoriously unreliable witnesses
Anthony Young, the alleged shooter of federal witness Kemo McCray, was brought before the court so he could recount the latest version of the murder conspiracy that allegedly involved Bergrin. Young is in many ways typical of informers used by the government. A convicted drug dealer and murderer who has spent much of his adult life in prison, Young is well-versed in the ways of the criminal justice system. Specifically, he knows that despite his numerous past misdeeds, favorably testifying for the government against Bergrin is his ticket out of prison.
At first glance Young appears to be a poor man’s Suge Knight, a hulking figure with a beard and shaved head. He testified on the witness stand in a calm, well-rehearsed fashion. He acknowledged previously recounting several different versions of his story for investigators, but confidently assured the court that this time his story was the “truth.” Young first contacted investigators with information about the Kemo murder, but in his tale’s first incarnation he denied being the shooter. At the time Young offered his assistance, he was seeking help with pending state and federal firearm charges. Being a felon in possession, he was certain to receive a lengthy sentence unless he could give the prosecution something they wanted.
The Newark, NJ crime scene where Kemo McCray was gunned down
Under blistering cross-examination by Bergrin, who continued to act as his own defense counsel, Young’s story unraveled on several levels. Bergrin pointed to numerous inconsistencies between Young’s current testimony and previous versions also recounted under oath. Young acknowledged pleading guilty to a murder in which he was previously uncharged and taking a 30 year sentence, to get himself out from under a gun charge where he was facing a likely maximum term of 15 years. He tried, with a straight face, to tell the court that no promises had been made by the government regarding a subsequent reduction in his sentence. His story is that he simply passed on a 15 year sentence, took a 30 year term and now in furtherance of his newfound status as a solid citizen, is tying Bergrin to a murder with no expectation of a reward.
Young was forced to admit that he initially lied to FBI agents and prosecutors, and gave false information in an effort to frame another drug ring member as the Kemo shooter. Young’s justification for doing so is that he allegedly feared for his life and wanted his adversary to be incarcerated. He now insists that he is telling the truth and has been doing so since he decided to “come clean” in 2006 and cooperate with authorities. He did, however, concede that he had made “mistakes” in his prior sworn testimony.
Federal witness Kemo McCray was allegedly shot by Anthony Young, but there is a stunning lack of evidence tying Bergrin to the conspiracy
Bergrin effortlessly exposed numerous holes in his story, but USDJ Dennis Cavanaugh interceded repeatedly on behalf of the witness. Cavanaugh cautioned Bergrin several times about “repetitious” questioning of Young. Cavanaugh appeared to be willing to let Bergrin score some points with the jurors, but made it clear he would not let the government’s witness be completely eviscerated. Bergrin’s masterful cross-examination of a subsequent government witness, IRS Special Agent Cline, exposed a fatal flaw in Young’s testimony which left jurors talking amongst themselves and caused Cavanaugh to caution Bergrin that he was “on thin ice” and “coming dangerously close to testifying.” Nevertheless, the jurors appeared to have gotten the point as it was finally made clear to them that Young was nothing less than a thoroughly discredited serial recidivist perjurer.
USDJ Dennis Cavanaugh has repeatedly limited Bergrin’s aggressive cross-examination of government witnesses
Convicted drug dealer and prolific government cooperator Richard Pozo was similarly presented by the government as a supposedly credible witness against Bergrin. Pozo was facing life imprisonment for federal drug kingpin charges, but was rewarded for his voluminous testimony against Bergrin and others and is today a free man. Pozo alleges that Bergrin’s legal strategy for his defense was to suggest killing a government witness. He also told the court that Bergrin offered to supply him with cocaine and help launder drug proceeds. Pozo claims that he was so offended by Bergrin’s advice on how to deal with the witness that he changed lawyers and decided to cooperate.
Bergrin ridiculed Pozo’s story, raising doubt that a lawyer he had known for a mere eight months would ask him to participate in a cocaine deal and openly suggest that he murder a witness. Pozo came across as an opportunistic criminal who knew how to deal his way out of prison. He acknowledged informing on numerous other cases and having been generously rewarded. Pozo’s rewards highlight a fundamental flaw in the use of informants. If the defense were to reward or offer something of value to a witness, it would unquestionably be a violation of law. Yet the prosecution is permitted to offer a witness their freedom, which is not only something of value, but arguably something of the greatest value in return for their testimony. The result is a witness like Pozo and his highly improbable, self-serving tales.
Pozo’s testimony seemed almost credible when compared with that of Rondre Kelly, another imprisoned convicted drug dealer. Kelly claims that he purchased at least 100 kilograms of cocaine from Bergrin over a two year period. Kelly admitted to having good reason for testifying against Bergrin. He conceded that his cooperation will hopefully get him a reduction in the 14-year federal drug sentence he is currently serving.
Rondre Kelly’s story is laughable, but may still get him out from under a 14 year federal drug sentence
Kelly’s improbable tale is that he ran an auto body shop in Newark where Bergrin would regularly send over large, multi-kilo deliveries of cocaine. According to Kelly, the first few deals were transacted right outside Bergrin’s law office. Kelly testified that each kilo cost him $21,000, allowing him a profit of $1,000 per kilo. He would later deliver the cash, minus his cut, to Bergrin’s law office where it would be collected and he would be given another bag containing kilos of cocaine. One wonders how Bergrin could have found any time at all to practice law with all of this alleged drug dealing and murder plotting.
Hakeem Curry and William Baskerville were leaders of a large narcotics organization and clients of Bergrin
As he has done with all of the preceding government witnesses, Bergrin honed in on major flaws in Kelley’s testimony. He forced Kelly to admit that despite all of the alleged drug dealing which spanned a two year period, there was not a single recording of them discussing drug sales or speaking in coded language. When Kelly was shown an FBI report, he further conceded that the price he paid for the cocaine seemed to vary in his different recounted versions of the transactions. Bergrin attacked Kelly’s “selective memory” and ridiculed the notion of drug deals being made outside his office, noting his firm’s close proximity to a police station and a nearby restaurant frequented by police officers. He strongly accused Kelly of attempting to frame him in a desperate effort to buy his way out of prison.
Kelly stuck to his story and explained that he had little contact directly with Bergrin, claiming that they only spoke if there was a dispute over price. Bergrin asked Kelly, “I was the boss, right?”
“If there was a problem with price, yes,” Kelly replied.
Until he was handed another report, Kelly could not recall telling the FBI about the Hispanic men who had accused him of owing them money for cocaine sold by others.
“And they accused you of selling their drugs and owing them money,” Bergrin said.
“That’s what’s written,” Kelly answered.
“But those words would never come out of the mouth of Rondre Kelly because that would be totally false if Paul Bergin was the boss,” Bergrin shot back.
Bergrin’s efforts to force Bush and Cheney to testify about abuse at the notorious Abu Ghraib prison may have more relevance to the current trial than the far-fetched criminal allegations
The defense’s point was well made and Kelly was exposed as just another perjurer trying to work his way out of prison by offering up information on Bergrin. In its zeal to punish Bergrin the government has struck deals with some of the most unctuous characters to ever enter a federal courtroom. AUSA John Gay and his prosecution team seem perfectly willing to allow this mockery of justice to continue. The government, in their “throw as much as you can at the wall and hope something sticks” effort, is likely banking on the possibility that the jury will in the end come to the conclusion that Bergrin “must have done something.” Despite Bergrin having exposed the government perjurers for what they are, the danger in this trial lies in the apprehension jurors may have in declaring that the U.S. federal government would knowingly produce and advance completely false testimony. Unfortunately, it is nothing new and the Bergrin trial may only be noteworthy because of the sheer volume and outrageousness of the lies. As is so often the case, a defendant has been targeted for reasons having nothing to do with the allegations being made in court and the government is determined to secure a conviction at any cost and by any means.