By Michael E. Miller
By Ryan Yousefi
By Kyle Munzenrieder
By Sabrina Rodriguez
By Michael E. Miller
By Carlos Suarez De Jesus
By Luther Campbell
By Kyle Munzenrieder
Dawe, hysterical with rage, stumbled across the street to retrieve a pistol from her cousin's car. Unable to calm her, friends sent two kids to fetch Earl Parker, who lay asleep in their apartment nearby. Parker says he played the peacemaker, arriving just in time to strip the gun from Dawe, who had been on the street divider, threatening to fire at her adversary and into a crowd. Rubberneckers surged into the street, shouting, blocking traffic. To the police called in on January 9, 1991, the scene looked like a budding riot.
"Never seen anything like it," recalls Opa-locka patrolman Troy Fields, a four-year veteran who was one of the first officers to pull up. "There were 250, maybe 300 people. A real potential for violence. All our units were there, and a bunch from Metro-Dade and Highway Patrol. That night we needed all the back-up we could get."
Amid the tumult, fellow officer Gary Jones heard several people scream, "That man got a gun!" and point to Earl Parker, who was heading away from the crowd, across 22nd Avenue. Jones zeroed in, drawing his gun and ordering Parker to lie down with his palms on the ground. As Parker did, a pistol clattered to the pavement. While Jones cuffed Parker, Fields arrested Monica Dawe, her foe, and a third woman. At the police station, a routine computer check detailed Parker's criminal record, which included a burglary, two robberies (one with a deadly weapon), two firearms violations, and twenty months in a federal penitentiary -all since 1982. For his part in the brawl, police charged him with disorderly conduct, resisting arrest, and possession of a firearm by a felon. He was locked in Dade County Jail and left to wait for his day in state court.
For Parker, the violent aftermath of infidelity had become a recurring theme. In 1985 the heavily muscled construction worker nearly beat a man to death for being unfaithful to one of his sisters and slugging another. The man retaliated by shooting Parker at close range with a .357 magnum, shattering his femur and paralyzing his left foot. In April of last year, while he was out on bail, Parker was again booked and later charged with misdemeanor battery for striking Dawe, in another squabble provoked by his own philandering.
Parker was not all that worried, however, about the gun charges filed against him. Neither was his lawyer. Public defender Eric Hendon recalls interviewing half a dozen eyewitnesses about the January fray. "They all told the same story: that Parker had taken the gun away from his girlfriend. I was ready to take it to trial because it was the perfect case. A jury would have given the guy a medal." A jury never got the chance. In May the Dade State Attorney's Office declined to prosecute the case. The prosecutor, Hendon figured, had finally talked with the witnesses.
Not quite. Days after the case was dropped in state court, the U.S. Attorney's Office charged Earl Parker in federal court, as part of a highly touted new program called Operation Triggerlock. Parker was to be tried on a lone count of possession of a firearm by a convicted felon. Minimum punishment: fifteen years in prison, no parole.
Eric Hendon was shocked, and so was Kathleen Cooper, Parker's federal public defender. After interviewing witnesses, Cooper says she assessed the case as "an open-and-shut acquittal." On the morning of trial, September 25, with defense witnesses and supporters packed into the waiting room, the prosecution apparently conceded the point, dismissing the charges.
"All I told the assistant U.S. attorney was, `Talk to the cops.' Maybe he realized he didn't have a case," Cooper says now. "What I can't understand is why somebody didn't figure that out sooner. My client sits in jail for four months, loses his job. He's facing more hard time than most murderers do in state court. The government pays loads of money for an indictment. And no one investigates the case."
Shoddy investigation, in fact, may have been Earl Parker's saving grace. While the government's case rested on the testimony of officers Jones and Fields, two other eyewitnesses now say they would have testified for the prosecution, if they had been contacted. Angela Cason, the woman with whom Dawe was fighting, and her cousin Charmane Cason, insist Parker actually leveled the gun at them and would have fired if police hadn't arrived. Had government investigators sought to contact the Casons, the task wouldn't have been tough: both women were taken into custody with Parker and listed their addresses and phone numbers on arrest forms.
"The Triggerlock cases we're getting are a joke," declares federal public defender Jim Gaylie, whose office defends 80 percent of all criminal charges that reach federal court. "And the number of dismissals and acquittals we're getting reflects that." Statistics from the U.S. Attorney's office indicate that during fiscal year 1991 prosecutors secured pleas or guilty verdicts in 95 percent of their criminal indictments. But when Gaylie's office randomly compiled 45 of the estimated 60 Triggerlock cases handled last year, the results were stunning: thirteen resulted in acquittals or dismissals, seventeen in guilty verdicts or pleas. (Fifteen were as yet unresolved.)
Jon Weyman, the assistant U.S. attorney who just last month took charge of Operation Triggerlock, declines to discuss specific cases, citing Department of Justice guidelines. "Sometimes a charge is not thoroughly enough investigated and new evidence does emerge," he concedes. "But even before Triggerlock started, our policy as an office was to be aggressive in trying to protect the community. There are many offices across the country that might not charge on weaker cases. We'd rather safeguard the community and take the occasional acquittal." Indeed, according to Gaylie's figures, under former Acting U.S. Attorney Dexter Lehtinen, federal prosecutors lost 24 percent of their trials from June 1990 to August of 1991, double the national average.
But Gaylie, a federal prosecutor himself from 1982 to 1986, insists Operation Triggerlock represents more than gung ho prosecuting: "It's the most recent example of what happens when you give limitless power to police and prosecutors. Bust first and ask questions later. Or don't ask them at all."
Gaylie contends the program is the latest indicator of a radical shift in the criminal justice system that started with the Comprehensive Crime Control Act of 1984. That sprawling bill, hurriedly passed by legislators anxious to appear tough on crime in an election year, established a commission to formulate mandatory sentencing guidelines that would guarantee uniformity of punishment throughout the federal courts. The measure also called for the elimination of parole in federal sentencing and implemented several mandatory minimum sentences.
While the commission quietly drew up its Byzantine sentencing charts, the crack cocaine crisis exploded into the headlines in 1986, with the death of University of Maryland basketball star Len Bias. Ronald Reagan hammered away at his newly coined War on Drugs, and legislators, gauging the rumble of public opinion, decided to pre-empt the commission by passing still more mandatory minimum sentences, mostly for drug-related crimes. Today, despite the vociferous objections of criminal defense attorneys, federal judges, and the sentencing commission itself, all mandatory minimums remain in place.
"The idea has been that if we're tough enough on drugs and crime, we can make them go away," says Marc Mauer, a policy analyst at the Sentencing Project, a Washington D.C.-based group. Instead, he says, the United States has overtaken Russia and South Africa as the world's leading incarcerator, with 1.2 million inmates, more than double the figure a decade ago. Beefed-up federal jurisdiction over violent and drug-related crimes, coupled with the mounting number of trials made necessary by mandatory sentences, have clogged the federal court, Mauer says, and spurred judges to complain that they don't have the time to try civil cases. Mauer says federal prisons contain one and a half times the number of inmates they were designed to hold, and according to figures kept by the Bureau of Prisons, the prison population will double by the year 2000. "On the upside," Mauer deadpans, "prison construction has become a leading growth industry."
One of the little-known mandatory minimums included in the original 1984 crime act was a fifteen-year sentence to any felon possessing a firearm, if that person previously had been convicted three times of violent or serious drug offenses. (Under federal statutes, violent crimes include any offense, from burglary to murder, "that presents a serious potential risk of physical injury to another." Serious drug offenses are defined as those that carry a maximum sentence of ten years or more.)
In 1986 the U.S. Bureau of Alcohol, Tobacco and Firearms (ATF) initiated Operation Achilles, an ambitious federal program intended to strike at the "Achilles heel" of felons by reviewing all arrests involving possession of a firearm and charging selected suspects whose records qualified them as armed career criminals. Prosecutors enjoy two advantages by bringing a case in federal court: first, parole-free sentences that result in more prison time than state-court convictions; and second, discovery laws that severely limit defense lawyers' pretrial access to the prosecution's evidence and witnesses.
"Our intention is to target the worst of the worst and take them out of circulation," explains Paul DuCuennois, group supervisor for the Armed Career Criminal Program at ATF's Miami office. "Our statistics showed an inordinate number of violent crimes committed by a small percentage of criminals, guys who were moving in and out of the state system." In four years, DuCuennois says, Dade police, ATF agents, and federal prosecutors have joined forces to put more than 100 career criminals behind bars, and earned his office national recognition as a model Achilles program.
In response to ATF's Achilles, the Justice Department last April launched its own special program, Operation Triggerlock, aimed at solidifying federal prosecutors' commitment to pursue gun cases. While the number of Triggerlock cases remains small, officials hope to broaden the plan's scope dramatically. The Justice Department's 1991 manual outlines a plan to monitor current and recently released state prisoners for potential Triggerlock defendants. Republican Sen. Alfonse D'Amato of New York, meanwhile, recently proposed a bill that would federalize all crimes committed with guns and impose a five-year minimum sentence.
Federal public defender Gaylie maintains that programs such as Triggerlock seek to remedy the failures of the state criminal system, while simultaneously relying on state courts as a source of prior convictions. Because of severe overcrowding at the state level, he notes, defendants often are encouraged to accept pleas for the sake of convenience. "Everybody knows how it goes," Gaylie says. "A guy's charged with burglary. By the time he gets to court, the judge says, `If you plead guilty, I'll let you go right now on time served,' and the guy takes the plea. No trial. No proof. No real due process. But the conviction goes down on his record, anyway."
DuCuennois counters that with more than 500 potential Triggerlock defendants identified each year, ATF agents target only those criminals deserving of hard time. "The guys we choose for prosecution have spent their lives proving a propensity for violent crime," he says. "We're just stopping the revolving door out of jail."
And in theory, that door shouldn't be hard to stop. As officials note in the 1991 Department of Justice manual: "Prosecutions under this statute are usually relatively straightforward and do not require significant investigative or prosecutorial resources."
Indeed, the fundamentals of prosecuting a Triggerlock case involve proving three points: that the defendant is a thrice-convicted felon, that he or she possessed a gun, and that the gun traveled in interstate commerce after its manufacture (a technicality that elevates the possession to a federal case). Because the first and third points are rarely disputed, cases hinge on the issue of possession itself, which usually boils down to the word of a convicted felon against one or more cops.
That's what it came down to in Richard Vann's case. On April 23, 1991, Vann, a Miamian with a string of felony convictions stretching back to 1979, was arrested by an undercover cop who reported hearing shots go off and seeing Vann throw down a .380 Remington semiautomatic gun. Vann later told assistant federal public defender Hugo Rodriguez a different story. Denying that he'd dumped a gun, he maintained that he had intervened during a bungled drug deal and helped two buyers escape with their lives. "We thought he was crazy," Rodriguez recalls. "Until our investigators found the original police report."
In that report, City of Miami police officer Rolando Jacobo described the events exactly as Vann had. Only in a supplemental report did Jacobo note Vann's alleged possession of a weapon. (Jacobo refused comment for this article). What's more, the defendant's fingerprints did not show up on the Remington found at the scene. Rodriguez says that when he confronted the prosecutor with his new information before the trial, the case was dismissed.
"The whole thing was an embarrassment," recalls Rodriguez, whose 1991 record on Triggerlock cases includes one other eleventh-hour dismissal, as well as an acquittal. "The attitude is, `If you've got an arrest form and three previous convictions, you've got a case.' That's all the grand jury has to see to hand down an indictment. In Vann's case, I don't think the prosecutor ever got a full police report. If you're going to put a guy away for fifteen years, you should at least get into what went down on the street."
Triggerlock coordinator Jon Weyman says his prosecutors rely on ATF agents for case information. "ATF is the screening agency," he points out. "Any investigation is done by them. They tell us what we know." He adds that cases are dismissed for various reasons, including the desire to refile charges after further investigation.
ATF's DuCuennois maintains that all Triggerlock cases pass through multiple levels of review. "We meet with state and federal prosecutors. Look at police investigations. Talk to witnesses. Compile exhibits and graphics. Do whatever needs to be done to get the case together," he insists. "These cases are not as easy as taking an arrest form and an officer to federal court. A lot of times you've got crime scenes that are far from ideal. Also, people usually don't cooperate with prosecutors, where defendants can find witnesses to back up their story."
DuCuennois admits, however, that in the Parker and Vann cases, evidence found after ATF's investigation indicated both men had attempted to disarm someone else. "We feel good about the fact that we dismiss cases when we get new information," he says. "It would be travesty of justice if we didn't."
Lori Barrist had a good year in 1991. Too good, she says. An assistant federal public defender for almost seven years, Barrist won eleven acquittals last year - a record, according to veterans in her office. Four were Triggerlock cases. "There are some federal public defenders who go through a whole career without an acquittal," Barrist says. "But I don't want to sound like I'm bragging, because the truth is the cases being brought are just so weak."
Barrist credits the public defender's investigators, a skilled team she says often unearths more about the circumstances leading to a defendant's arrest than the law enforcement officials probing the charges. And like her colleagues, she expresses outrage at the notion that her clients face at least fifteen years in prison solely for possession of a firearm. "I try to explain these cases to friends and they just don't understand. They say, `But what was he doing with the gun? Threatening someone? Robbing a bank?' And I tell them, `No. A cop just says the gun was on him. That's it.' Obviously the cops are not proving believable."
Barrist says her most recent Triggerlock trial, in January, is a prime example. According to a Metro-Dade police report, the defendant, Eddie Woods, was spotted leaving the Ninth Avenue Market in Florida City after a police car pulled up, at around 10:00 p.m. Deeming his departure suspicious, officer Vincent Caldara followed in a marked police car as Woods walked south down Ninth Avenue. Woods, who says he was returning home, turned down a path between two buildings and proceeded into a field, where Caldara apprehended him, the lights of his police car flashing. "The police report says that Woods waited until he was ten feet away from the cop to throw his gun down," Barrist says. "Now why would he have waited until he was that close to get rid of his weapon?" It was a question, Barrist says, that jurors couldn't ignore. They returned an acquittal in an hour.
Barrist says the most ridiculous Triggerlock case she tried in 1991 was the United States v. William Kuhn. A Kendall native who has by his own admission been in trouble with the law since age twelve, Kuhn doesn't dispute that he was a fitting candidate for Triggerlock on the day he was arrested. Twice busted for burglary as a juvenile, he served more than five years in state prison for a 1982 armed robbery. After his release in 1987, Kuhn worked as a bouncer at strip bars up and down South Dixie Highway and began hanging out with the clientele. Within two years, he says, he was dealing drugs to support a cocaine habit.
On the morning of November 18, 1989, Kuhn had just finished a binge with his friend Raul Cabrera at the South Dade home of an acquaintance. Because Kuhn was suspected of having shot at a car belonging to an ex-girlfriend a week earlier, Metro-Dade officer David Wilkerson was camped outside the house when he emerged. Kuhn, whose driver's license was suspended, says he gave the keys to Cabrera and they took off in Kuhn's souped-up 1968 Nova, quickly pulling away from Wilkerson and initiating a breakneck chase.
As the men screeched onto SW 184th Street, Kuhn began to panic. "You have to understand, my car had never lost a race," he explains. "It had 420 horsepower. It raced in the low twelve seconds for a quarter mile. We left that cop like he was standing still. But with all the adrenaline and drugs in our system, things got crazy. I kept saying to Raul, `Look man, take it down. You don't know what this car can do.' He kept that sucker nailed to the floor. He was staring straight ahead, like he was concentrating on the road real hard, but he wasn't seeing anything."
Kuhn's last memory was of feeling the car rear up on its back wheels, flip left, and explode.
An accident report filed by Metro-Dade police stated that the force of the crash shot Cabrera out of the car and into a tree. His lungs were found ten feet from the rest of his body. Parts of Kuhn's prize stock car were scattered more than 500 feet along the roadway, with the engine block landing 300 feet to the west of the car's frame, which was bent like a melted Hot Wheels toy. Kuhn sustained a compound fracture of his shoulder, a cut femoral artery, a broken nose, and injuries that left chunks of flesh missing from all of his limbs. After police spotted him, they dragged him from a row of burning bushes. Several minutes later, when rescue workers returned to render first aid, they found a revolver and a small packet of cocaine in the front pocket of his shorts, according to his arrest affidavit. Court testimony, offered later, indicates the gun was found tucked inside the elastic waistband of Kuhn's shorts.
Airlifted to Jackson Memorial Hospital, Kuhn spent 42 days there before being transferred to the county jail. Originally charged in state court, his firearm-possession case was later kicked over to the federal docket. "I knew I was going to win from day one," Kuhn says. "They wasted in excess of $100,000 bringing me to trial, when the laws of physics prove that I could never have gone through that accident and kept any gun on me."
Kuhn's assessment turned out to be right. Public defender Barrist exposed a slew of nagging questions in the government's case. Why, for instance, would police not spot a .38 caliber weapon when they first found Kuhn, dressed only in shorts and a T-shirt? Why did the initial police report locate the gun in Kuhn's pocket, while rescue workers testified in court that it was in his waistband? And if Kuhn had a gun, why would he not have disposed of it earlier in the chase?
The defense's most effective testimony came from accident-reconstruction expert Miles Moss. "We did experiments driving twenty miles per hour with seat belts on, and the gun still came out when we stopped. Even when we placed it in the pants pocket," Moss says. "Remember, at the time of the accident, Kuhn himself was thrown from the car at almost fifteen miles per hour."
The jury returned an acquittal after a little more than two hours.
Kuhn, who now works at a Kendall gym and rides the bus to work, swears he's learned his lesson and gone straight. ATF supervisor DuCuennois is not so optimistic about the prospects of rehabilitation. "We never know what a jury is going to decide," he snaps. "In our view, when an acquittal comes down, the prison door's just revolved again."
Public defender Jim Gaylie takes the opposite view. While happy to tout his attorneys' sterling record on Triggerlock cases, the ex-prosecutor remains fearful that the federal government's sloppy legwork will eventually result in a wrongful conviction. "I understand the need to keep violent criminals off the streets," he says. "And I can see how a program like Triggerlock plays to the crowd: Get all the bogeymen off the street. But what it amounts to is handing out fifteen-year sentences to a bunch of kids - all poor, mostly black - without giving much thought to the investigation, let alone the implications. It's kind of scary how easily our society's willing to throw away the key on these guys."
Gaylie pauses. "But hey," he says, with mock levity. "If you're going to win a war on crime, you need prisoners, right?