Most legal observers agree that the passage of time will be kinder to the defense than to the government. But neither side will fare easily in the complex case, which is based on allegations that Martinez illegally demanded payments of property and money in exchange for helping developers complete four different real estate projects (he was acquitted of extortion in three other projects). The mayor, who also owns a realty company, is alleged by prosecutors to have pocketed some $160,000 in illegal profits from the transactions.
Assistant U.S. Attorneys Udolf and Steven Chaykin called more than two dozen people to the stand during the 1991 trial, one of the most important being former Hialeah city councilman Silvio Cardoso, who reluctantly testified against his one-time friend and ally in exchange for leniency in his own separate corruption case. Cardoso, now back in the construction business after receiving probation, will have less incentive to testify at a new trial, even though he can't refuse a subpoena and his past grand jury and courtroom testimony is unalterable. (A man who answered the phone last week at Cardoso's construction company said Cardoso is on vacation.)
"It's hard to get witnesses to come in, especially if the politician is in office, in power; they're afraid of retaliation," observes former assistant U.S. attorney Mark Schnapp, who led the government's successful 1987 corruption prosecution of yet another Hialeah politician, Martinez's long-time friend Sebastian Dorrego. (Schnapp is currently in private practice.) "They see a person in this case who was convicted, who bounced back into power -- he's looked at as invincible. People are going to look with greater skepticism at your ability to prove your case. There's an old saying, 'If you shoot the king, you'd better kill him.'"
Prosecutors also will have lost any element of surprise because the defense is now well aware of their legal strategy. In addition, they must take into account two U.S. Supreme Court rulings since Martinez's conviction that require more specific proof to convict public officials of extortion. Martinez's attorneys cited those rulings this past April before the federal appeals court, arguing that the government had not presented evidence that would convict Martinez in light of the new rulings. A retrial, they contended, would amount to double jeopardy. In May the court rejected that argument and sent the case back for retrial.
"By denying the appeal, the [court] found sufficient evidence in the record to convict even under the more strict interpretation," says former prosecutor Chaykin, now a partner with the Miami firm of Hanzman Criden Korge Hertzberg & Chaykin. "His lawyers have to evaluate all that. The circumstances in this case are not equivalent to a hung jury, mistrial, or a situation in which the court has struck evidence introduced into trial."
Martinez, the king who was shot but not killed, says the experience has steeled him for what lies ahead. "You lose fear after you go through it once," he remarks, adding that he has always believed prosecutors have attempted to throttle his career for political reasons while winking at questionable activities by numerous other elected officials. "Why me? Why not somebody else?" he protests. "Let's all get naked and see who's the cleanest."